Krishna v Fiji Public Trustee Corporation Ltd [2015] FJHC 202; HBC27.2015 (19 March 2015)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

Action No.HBC 27 of 2015

BETWEEN :

BAL KRISHNA of Tuvu, Lautoka
PLAINTIFF

AND :

FIJI PUBLIC TRUSTEE CORPORATION LIMITED
DEFENDANT

Appearances
Mrs J Naidu for plaintiff
No appearance for defendant

Date of Hearing: 26 February 2015
Date of Ruling: 19 March 2015

RULING

1. This is an ex-parte notice of motion ('the application') filed by the plaintiff seeking the following orders:
   
   1. THAT an injunction restraining the Defendant from any further tendering any portion of the property on the Certificate of Title number 10202 and Certificate of Title number 10201.
      
   2. THAT an injunction restraining the Defendant from dealing with, transferring, selling, alienating or other disposing of the Certificate of Title number 10202 and Certificate of Title number 10201 in any manner whatsoever;
      
2. The application has been supported by an affidavit of Bal Krishna (plaintiff) sworn on 19/2/15. The supporting affidavit annexes certain documents marked "BK1 – BK14".
   
3. The plaintiff sought to file written submission within 7 days. The court accordingly granted 7 days for the plaintiff to file his written submissions and adjourned the matter for ruling on 18 March 2015. The plaintiff did not file his written submissions within the time allowed for that purpose. However, when the matter was called today (18 March 2015) for ruling, counsel for the plaintiff indicated that she is ready with her written submission and she can file it today. Considering this I reserved the ruling for tomorrow (19 March 2015).
   
4. The application states that the application is made pursuant to the High Court Rules and the inherent jurisdiction of the court. It should be noted the application does not provide the particular Order of the High Court Rules (HCR) or the law which the application is made under. The applicant, it seems, has generally relied on the whole provisions of HCR.
   
5. In his substantive claim brought against the defendant in regards to estate of Baiju (his father) the plaintiff seeks declaration that he is entitled to three equal shares in the estate of Baiju together with the damages for failing to carry out the required subdivision to facilitate the transfer of the estate land to the beneficiaries in accordance with the terms of the Will. The plaintiff's substantive action appears to be quia timet action. It is not clear who is denying the plaintiff's entitlement to the estate property as he claim. The plaintiff thus fails to show a substantial likelihood of damage occurring for seeking ex parte injunctive orders.
   
6. The Will of Baiju as probated on 20 November 1986 requires in Cl 3 (e) that the trustees divide and distribute the land amongst the beneficiaries equally and equitably in a way so that each receives as near as possible an equitable share of flat portions, sloppy portions and hilly portions of the devised property.
   
7. Ram Chandar (son of Baiju) and Durga Prasad (son in law of Baiju) were appointed to be joint executors and trustees of the Will. They were subsequently removed as trustees and in their place the Public Trustees of Fiji (Now FIJI PUBLIC TRUSTEE CORPORATION LTD (FPTCL), the defendant was appointed as the new administrator by a consent order made on 17 January 1992.
   
8. The plaintiff seeks ex parte interlocutory injunctive orders to restrain the defendant from further tendering any portion of the estate property and to restrain the defendant from dealing with, transferring, selling, alienating or other disposing of the estate property.
   
9. The defendant was appointed to administer the estate with the Will annexed by the consent order made on 17 January 1992. The plaintiff now seeks to restrain the defendant from tendering or dealing with the estate property.
   
10. An executor to whom probate has been granted or administrator, may, for the purpose of administration, sell or lease such real estate, or mortgage the same with or without power of sale, and assure the same to a purchaser or mortgagee in as full and effectual manner as the deceased could have done in his lifetime [See 11 (3) of the Succession, Probate and Administration Act (SPAA).
    
11. The plaintiff seeks ex-parte restraining orders as heretofore stated after the defendant was appointed administrator by judgment by consent on 17 January 1992. The ex-parte orders are sought some 23 years after the defendant was appointed administrator of the estate of the testator. The plaintiff is to be found guilty of laches.
    
12. Should the court grant the restraining orders sought by the plaintiff at this late stage that will seriously hamper the progress of subdivision and distribution of the estate property among the beneficiaries in terms of the Will. The plaintiff in his written submissions emphasizes that he will suffer greater than the defendant will, if the injunction is refused. The balance of convenience, in my view, cannot favour the grant of an ex-parte injunction unless the case is of great urgency. The plaintiff fails to provide a case of great urgency for seeking ex parte injunctive orders. The plaintiff fails to provide evidence to show that there is urgency in the matter except for oral submission made by counsel for the plaintiff that there is urgency in the matter. Most astonishingly, the plaintiff's written submission fails to address on the issue of urgency.
    
13. The applicant must, in other words, need the courts protection immediately. If he has delayed with the knowledge of the facts before coming to the court an injunction will be refused, even where the defendant would not be greatly inconvenienced by the restrain: promptness is essential, see Bates v Lord Hailsham and Others [1972] 1 WLR 1373.
    
14. Moreover, the plaintiff fails to give usual undertaking as to damages. The affidavit in support of an injunction application should deal with undertaking in damages and the plaintiff's ability to honour the undertaking. The plaintiff's affidavit filed in support of injunctive orders is totally ignorant of undertaking as to damages. Again, the plaintiff's written submission fails to address on the issue of undertaking as to damage.
    
15. The plaintiff has delayed with the knowledge of the fact that the defendant was appointed administrator of the estate in January 1992 before coming to court. I am unable to find any urgency in this matter for granting ex parte injunction. The plaintiff also fails to show substantial likelihood of damage if the ex parte injunction is refuse. The ex parte interlocutory injunction is sought without undertaking in damages.
    
16. If the plaintiff was so interested in subdivision and distribution of the estate property, he would have requested in writing the defendant to subdivide and distribute the devised property among devisees and then he could have sought court order to comply with the request if defendant had neglected or refused to comply with the request. This remedy was available for the plaintiff under s.38 of SPAA which the plaintiff failed to exercise.
    
17. I have read the written submissions filed by the plaintiff. She has cited few case authorities including American Cyanamid Co. V Ethicon Ltd [1975] UKHL 1; (1975) A.C. 396 that dealt with interlocutory injunction. All I can say is the cases cited in the written submission will not assist an application for ex parte injunctive orders. The submission fails to address primary issues relating to ex parte interim injunction such as urgency and undertaking as to damage.
    
18. For all these reasons, I would refuse to grant ex parte interlocutory injunction sought in the ex parte notice of motion filed by the plaintiff on 23 February 2015.
    

..........................................
M H Mohamed Ajmeer
Puisne Judge

At Lautoka
19/3/2015