Punganthi v Narayan [2015] FJHC 535; HBC70.2015 (13 July 2015)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 70 of 2015

BETWEEN:

PUNGANTHI aka PUNANGAWNTHI MANIKAM
of Nukuku, Rakiraki, Fiji and DINESH NARAYAN, of Australia, both in their personal capacities and as executors and trustees of the Estate of Manikam and as beneficiaries in the Estate of Lachmaiya aka Latchmaiya and ultimate beneficiaries in the Estate of Manikam, deceased, testate, and of SAT NARAYAN, as beneficiary in the Estate of Lachmaiya aka Latchmaiya and as ultimate beneficiary in the Estate of Manikam.
PLAINTIFFS

AND:

SAT NARAYAN aka SATYA NARAYAN aka SATYANARAIN
of Nanuku, Rakiraki, as the sole executor and the trustee of the Estate of Lachmaiya aka Latchmaiya, late of Nanuku, Rakiraki
1ST DEFENDANT

AND:

REGISTRAR OF TITLES
of Titles Office, Civil Towers, Suva, Fiji
2ND DEFENDANT

AND:

ATTORNEY GENERAL OF FIJI
of Attorney General's Chambers, Suvavou House, Suva, Fiji
3RD DEFENDANT

Counsel: Mr S Krishna for plaintiffs
MrS Jitoko for 1st defendant
Mr Pickering for 2nd & 3rd defendants

Date of Hearing: 5 June 2015
Date of Ruling: 13 July 2015

RULING

Introduction
[01] This is an inter partes notice of motion seeking interim injunction.

[02] On 4 May 2015 along with writ of summons, plaintiffs filed an ex parte notice of motion seeking the following orders:

1. THAT the First Defendant, Sat Narayan aka Staya Narayan aka Satya Narain be restrained from dealing with, transferring, selling, alienating, interfering or otherwise disposing of Certificate of Title No. 41920 until further orders of the Honourable Court.
   
2. THAT the Second Defendant Registrar of Title forthwith enters the Orders herein onto Certificate of Title NO. 41920 and to not accept, approve and endorse any further dealing thereon until further orders of the Honourable Court.
   
3. THAT the cost of this application be paid by the First Defendant.
   
4. SUCH further or other order(s) that the Honourable Court may deem fit, just, expedient and necessary in the circumstances.
   

[03] On 5 May 2015 after hearing counsel for the plaintiffs the court converted the ex parte notice of motion into inter partes notice of motion ('the application').

[04] In support of the application the plaintiffs filed: (i) Affidavit of Punganthi sworn on 1st May, 2015 and filed on 4th May, 2015, (ii) Affidavit of Dinesh Narayan sworn and filed on 4th May, 2015 and (iii) Affidavit in Reply of Punganthi sworn on 25th May 2015 and filed on 29th May, 2015.

[05] The 1st defendant filed affidavit in opposition of Satya Narayan sworn on 18th May, 2015. The 2nd and 3rd Defendants filed Affidavit in Reply of Torika Goneca sworn on 20th May, 2015 and filed on 21st May 2015.

[06] The application is made pursuant to Order 29 Rule 1 of the High Court Rules (as amended) ('HCR') and under the inherent jurisdiction of the Court.

[07] At hearing, parties made oral submissions and only the plaintiffs tendered written submissions, but defendants did not. The defendants did not make application to file written submissions either.

Background

[08] Punganthi (1st named Plaintiff) is the wife of Manikam. Dinesh Narayan (2nd named Plaintiff) and Sat Narayan (3rd named Plaintiff) are sons of Manikam. Manikam died testate on 18th of June, 1997 leaving a Will executed on 25th July, 1990. Plaintiffs are the beneficiaries in the Estate of Manikam. Manikam bequeathed all his real and personal property and ready cash unto his wife (Punganthi) for her life or for as long as she does not stay with another man whichever is earlier, and bequeathed the residue unto his two sons (Sat Narayan and Dinesh Narayan) in equal shares absolutely. Probate was obtained on the 10th of September, 1997 in the Estate of Manikam. Sat Narayan is the son of Lachmaiya. Lachmaiya died testate on 15February, 2001 leaving a Will executed on 16 June, 1999.The 1st Defendant is the Sole Executor and Trustee of the Estate of Lachmaiya. Probate was obtained accordingly. Lachmaiya's last Will was challenged and on 17 September 2010 Fiji Court of Appeal under Civil Appeal NO. ABU 0010 OF 2009 from Civil Action No. HBC 296 of 2003 held that the Will of 16th of June, 1999 was valid and the Probate thereunder was also valid. Lachmaiya bequeathed inter alia as follows: 'LOT 1 containing 2 roods 3 perches being residential site together with the dwelling house and improvements thereon as presently occupied by Estate of Manikam to the beneficiaries of the estate of Manikam absolutely.' Lachmaiya's Will also carries a conditional clause. Clause 7 of the Will states, in the event of any beneficiaries desires to sell his share the first such offer is to be made to other beneficiary but shall not sell the same to any person other than the beneficiary. If any beneficiary decides to migrate or leave the place he or she shall leave the share and go. The plaintiffs allege that Sat Narayan as the sole trustee and executor fraudulently transferred Lot 1 unto him without allocating it to the plaintiffs. Sat Narayan claims that he had done so as the plaintiffs had migrated or left the place. He relies on clause 7 of the Will. The plaintiffs among other thing seek to cancel and rescind the transfer of Lot 1 to Sat Narayan with declaration that they are entitled to Lot1on Certificate of Title No. 20895 (now being Certificate of Title No.41920 by virtue of being beneficiaries in the Estate of Lachmaiya and ultimate beneficiaries in the Estate of Manikam. The plaintiffs also seek permanent injunction restraining the first defendant from dealing with, transferring, selling, alienating or otherwise disposing of Certificate of Title No.41920.

Relevant Law & Principles

[09] An application for interim injunction may be made by any party to a cause or matter before or after the trial of the cause or matter pursuant to Order 29, rule 1 of the H C R which provides as follows:

'1.-(1) An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party's writ, originating summons, counterclaim or third party notice, as the case may be.'

[10] The governing principles applicable when considering an application for interim injunction were laid down in the leading case of American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; (1975) AC. 396 as follows:

(1) is there a serious question/issue to be tried;

(2) are damages an adequate remedy;

(3) if not, where does balance of convenience lie.

[11] The above principles apply in Fiji as well. Fiji High Court applied these principles in cases such as Vivrass Development Ltd vs Fiji National Provident Fund, High Court Civil Action.: 27 of 2001S and Digicel (Fiji) Ltd v Fiji Rugby Union, Civil Action No.: HBC 30 OF 2014S.

[12] I will attempt to apply the abovementioned principles to the application before me.

Determination

[13] In the plaintiffs' writ, they inter alia seek permanent injunction restraining the first defendant from dealing with, transferring, selling, alienating or otherwise disposing of the property in question. Initially, the plaintiff filed ex parte notice of motion for an urgent injunctive order to restrain the first defendant from dealing with the disputed property in any whatsoever. Having found that there was no genuine urgency in the application, the court converted the ex parte application into inter partes. The current application before the court is an inter partes application for interlocutory injunction filed by the plaintiffs.

[14] It is to be noted that it is unnecessary for applicant to establish prima facie case for the grant of interim injunction, see American Cyanamid case (supra).

Serious question to be tried

[15]The plaintiffs in their writ seek among other thing a declaratory order that they are entitled to the property in question by virtue of being beneficiaries in the Estate of Lachmaiya and as ultimate beneficiaries in the Estate of Manikam.

[16] Lachmaiya bequeathed the disputed property (Lot 1) to the Estate of Manikam. Lachmaiya's Will inter alia states as follows:

'... Lot 1 containing 2 roods 3 perches being residential site together with dwelling house and improvement thereon as presently occupied by Estate of Manikam to the beneficiaries of the estate of Manikam absolutely' (Emphasis provided).

[17] In his Will Lachmaiya further directed that:

'... If any beneficiary decides to migrate or leave the place he or she shall leave the share and go.' (Emphasis provided).

[18]The first defendant is the sole executor and trustee of the Will. He has been granted probate. One Dharma Wati challenged the validity of Lachmaiya's Last Will and Testament. The Fiji Court of Appeal, in Dharma Wati(Appellant) v Sat Narayan & Ashok Naidu (Respondents) (Civil Appeal No. ABU 0010 of 2009 from Civil Action No. HBC 296 of 2003), ordered that, the Will of 16th of June 1999 was valid and the probate there under was also valid.

[19] The plaintiffs' case is that the first defendant fraudulently refused and failed to transfer the property to the Estate of Manikam or to the plaintiffs who are the beneficiaries in the Estate of Lachmaiya and that the first defendant without any right transferred the property to him absolutely. Particulars of fraud as alleged in the statement of claim are that the first defendant executed documents and made applications with full, clear and intentional knowledge to defeat the plaintiffs' right.

[20] The first defendant, as the sole executor and trustee, must have transferred the property to the Estate of Lachmaiya in the first place before distribution between the beneficiaries. Without transferring to the Estate the first defendant had transferred the property to him.

[21] In his affidavit in opposition the first defendant states that he transferred the property to him as the plaintiffs had migrated or left the property acting under clause 7 of the Will (Lachmaiya's) which provides that, if any beneficiary decides to migrate or leave the place he or she shall leave the share and go. The first defendant further states that, when the plaintiffs were in Fiji they neither visited nor approached him to discuss their distribution they are claiming entitled to.

[22] The first named plaintiff (Punganthi) in her affidavit in reply sworn in Australia states that her sons are Australia citizens but have applied for Citizenship for Fiji as they were born and raised in Fiji. Under para 13 of the affidavit in reply the first named plaintiff under oath says as follows:

'I have not left my land. My children have not left the land, they have got Australian Citizenship, Fiji Tax Identification Numbers and we cultivate the land for commercial purposes. It is not on a large scale but is mine and my children's source of income in Fiji. My children have not left the land but travel back and forth, they reside in both places.'

[23] The primary issue that could be raised at the trial on behalf of the plaintiffs is that whether the first defendant as the sole executor and trustee of the Estate of Lachmaiya fraudulently transferred the property to him without allocating the property to the plaintiffs, the beneficiaries under Lachmaiya's Will.

[24] The first defendant could raise two possible issues at the trial namely: (i) whether the plaintiffs failed to demand and enforce their right to a share in the Estate of Lachmaiya since after the grant of probate on 31 March 2009 and thereby renounced their shares under Lachmaiya's Will. (ii) Whether the first defendant as sole executor and trustee was entitled to transfer the property to him utilizing clause 7 of Lachmaiya's Will which states that if any beneficiary decides to migrate or leave the place, he or she shall leave the share and go.

[25] It will be noted that Punganthi does not deny in her affidavit that her sons had migrated to Australia and had obtained permanent residence in there. However, she says that she is in and out of Fiji for medical purpose and she possess the land through her caretaker. There will be another issue that could be raised at the trial that whether Punganthi migrated or left the place.

[26] It appears to me that both parties are likely to raise serious issues at the trial.

[27] Lord Diplockin American Cyanamid case (supra) said at page 510:

"It is no part of the court's function at his stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial"

[28] I am satisfied, at this stage, that there are serious issues to be decided at the trial. At this stage of litigation, I will refrain from expressing any opinion on the parties' prospect of winning the case.

Inadequacy of Damages

[29] Since I have considered on the affidavit evidence that there are serious questions to be tried at the trial. The next question I need to consider in this application for interim injunction is that the inadequacy of damages.

[30] Lord Diplock in American Cyanamid case (supra) stated that:

'The court should go on to consider whether ... if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of trial. If damages ... would be an adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appear to be at that stage' (at 408B-C).

[31] The first plaintiff in the affidavit in support states that, 'I have been living on and in occupation of a substantial residential dwelling built by my late husband Manikam on Certificate of Title NO. 41920 for the past 50 years. I now travel for medical check-ups, I have my caretaker Mr Jasbindar Singh on the property that I pay for. If the first Defendant is not restrained he will take further action on his notice to vacate my servant and agent.'

[32] The application for interim injunction has emerged after the first defendant issued eviction notice through his solicitors on the plaintiffs on 27 March 2015.

[33] The plaintiffs did not attempt or demand to get the property bequeathed under Lachmaiya's Will allocated to them even after the Fiji Court of Appeal confirmed the validity of Lachmaiya's Will and the probate granted thereunder in September 2010.

[34] The first defendant's position is that at no time when plaintiffs were in Fiji did they ever visit him nor did they approach him to discuss their distribution they are claiming that they are entitled to. He further states that the plaintiffs have lost their shares when they have decided to leave the farm or migrated to Australia (see paras 17 &18 of the affidavit in opposition).

[35] Currently, the plaintiffs are not on the property. The fact that the second plaintiff, the first plaintiff's son, had migrated to Australia was not denied by the first plaintiff. The first plaintiff says she travels for medical check-up. However, it is clear that she is not on the property. Because she says she is maintaining and cultivating the property through her caretaker.

[36] It appears to me that the plaintiffs were lackadaisical in claiming their shares under Lachmaiya's Will.

[37] The plaintiffs are not occupying the subject property. The second defendant had migrated to Australia. Although the first plaintiff states that she is in and out of Fiji, she also not occupying the property. In the circumstances I reject the submission advanced by counsel for the plaintiffs that the plaintiffs have sentimental attachment to the subject property. In my opinion, since the plaintiffs are not in occupation of the property damages would adequately compensate the plaintiff if they succeed at trial in establishing their right to a permanent injunction.

[38] If on the other hand, damages would not adequately compensate the plaintiff for the temporary damage, and he is in a financial position to give a satisfactory undertaking as to damages, and an award of damages pursuant to that undertaking would adequately compensate the defendant in the event of the defendant succeeding at trial, an interlocutory injunction may be granted. If the plaintiff is not in a financial position to honour his undertaking as to damages, and appreciable damage to the defendant is likely, an injunction will usually be refused: Morning Star Co-operative Society Ltd v Express Newspapers Ltd [1979] FSR 113.

[39] The undertaking as to damage given by the first defendant in her affidavit is insufficient. In her affidavit in support under para 46 she states that, the plaintiffs are financially stable. That I give an undertaking as to damages in support of this application for an injunction against the first and second defendant should these orders be found to have no merit and are dissolved. The first plaintiff, according to the first defendant, has not proffered or provided evidence of this financial statement to substantiate her claim that she was financially stable and be able to meet her undertaking as to damages. For my part, I would conclude that there is nothing in the first plaintiff's affidavit to show that she is in a financial position to honour her undertaking as to damages.

[40] Appreciable damage to the first defendant is likely as the first defendant has raised the issue of renouncement of the plaintiffs' right under Lachmaiya's Last Will. The first plaintiff fails to establish her financial position to honour her undertaking as to damages. In the circumstances, I would refuse to issue an injunction against the defendants.

Balance of Convenience

[41] Lord Diplock in American Cyanamid case (supra) also stated that:

'It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises' (at 408E).

[42] The third stage of balance of convenience will inevitably involve some disadvantage to one or the other side which damages cannot compensate. In this case I have already found that damages would adequately compensate the plaintiffs if they succeed at trial. Therefore there is no need to consider the third stage-the balance of convenience.

Conclusion

[43] For the foregoing reasons, I conclude that damages would adequately compensate the plaintiff if they succeed at trial. I would therefore refuse to issue an interim injunction against the defendants. In this litigation the first defendant seriously contested the issue of interim injunction. The order has been made in his favour. The first defendant is entitled to costs. I therefore order the plaintiff to pay costs in the sum of $500.00 which I summarily assess to the first defendant.

Result

(i) The plaintiffs' application for interlocutory injunction against the defendants filed 4 May 2015 is refused.

(ii) The plaintiff will pay summarily assessed costs of $500.00 to the first defendant.

(iii) Orders accordingly.

M H Mohamed Ajmeer
JUDGE

At Lautoka
13 July 2015