Naim Engineering Construction (Fiji) Ltd v A. R. Quarry & Concrete Ltd [2015] FJHC 317; HBC205.2013 (29 April 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA FIJI

CIVIL CASE NO.: HBC 205 of 2013

BETWEEN:

NAIM ENGINEERING CONSTRUCTION (FIJI) LIMITED a duly
incorporated limited liability having its registered office situated at Lot 26 Main Street, Savusavu.
PLAINTIFF

AND:

A.R. QUARRY & CONCRETE LIMITED a limited liability Company
having its registered office at Nadi.
DEFENDANT

Appearances:
Ms. Tabuakuro for Plaintiff
Mr Roopesh Singh for Defendant

RULING

1.0 Introduction

1.1 The Plaintiff by way of Summons supported by the Affidavit of Shakin Sharma sworn on 3rd June, 2014 filed on 4th June, 2014 sought leave to Appeal against the decision of this Court delivered on the 5th May, 2014. By the said decision the Court had refused to grant an injunction restraining the Defendant to present and proceed with the Winding Up action against the Plaintiff.

1.2 This application is opposed by the Defendant and it had filed an Affidavit in Response of Aiyaz Ali sworn on the 28th of August, 2014.

1.3 The Plaintiff also filed Summons dated 25th July, 2014 seeking staying until determination of the Appeal.

2.0 Background

2.1 The Plaintiff filed its Writ of Summons and sought inter alia in the following reliefs against the Defendant:

• (i) Judgment in the sum of $12,613.43.
• (ii) A Declaration that the debt of $228,957.00 as claimed by the Defendant is a fraudulent claim.
• (iii) Damages for Fraud.
• (iv) General Damages.
• (v) Special Damages.
  

2.2 The Plaintiff also filed an Interlocutory application seeking an injunction to restrain the

Defendant from proceeding with the Winding Up Petition. The said application was heard inter-parte and the Court refused the injunction and dismissed the Plaintiff's application. The present application seeking leave to appeal from the said Order is filed on 4th June, 2014.

3.0 Hearing

3.1 When this matter was taken up for hearing on 10/03/2015 the Learned Counsel for the

Defendant raised a preliminary objection stating that no leave is required to appeal from the decision of an Interlocutory application refusing an injunction and therefore the application is flawed. He argued further that this Court does not have jurisdiction to deal with the present application and therefore does not have the power to cure the defect as well.

3.2 The Learned Counsel for the Plaintiff sought a date to reply the submissions made by the Counsel for the Defendant and the matter was adjourned for parties to file their written submissions on the preliminary objections raised. The Defendant filed their written submission but no written submission was filed by the Plaintiffs on the due date.

4.0 Determination

• 4.1 Procedure to be followed to lodge an Appeal to the Court of Appeal is laid down in Section 12 of the Court of Appeal Act. Section 12(2) (f)(ii) of the said Act states as follows:
  

"12 No appeal shall lie-
(f) without the leave of the Judge or of the Court of Appeal from any

Interlocutory Order or Interlocutory Judgment made, or given by a Judge of the (Supreme) Court, except in the following cases, namely;

(i) ............................
(ii) Where an injunction or the appointment of a receiver is granted or refused;"

4.2 It is clear from the said section that no leave is necessary to appeal against an Interlocutory

Order refusing an injunction. Therefore I agree with the argument of the Learned Counsel for the Defendant that the application seeking leave in this matter is flawed and the Court has no jurisdiction to deal with this application.

4.3 In the light of the above finding I will not delve in the exercise to consider the merits of the

application to stay as there is no appeal a foot and a stay application cannot be sustained in vaccum.

5.0 Final Orders

5.1 (a) Summons dated 4th June, 2014 seeking leave to appeal struck out and dismissed.

(b) Summons dated 25th July, 2014 seeking a stay, struck out and dismissed.

(c) The Plaintiff to pay costs summarily assessed in a sum of $750.00 to the Defendant

within 21 days.

Lal S. Abeygunaratne
JUDGE

At Lautoka
29 April 2015