Roshan v Kurukanawa [2015] FJHC 947; HBC138.2015 (3 December 2015)

IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA

Action No. HBC 138 of 2015

IN THE MATTER of the LANDTRANSFER ACT

AND

IN THE MATTER of the application for Extension of CAVEAT NO. 346936 under the LAND TRANSFER ACT

BETWEEN:

SHYLIN SHEETAL ROSHAN also known as SHYLIN SHEETAL PRASAD and NITINROSHANboth of Ba, Bank Officer and Technical Officer respectively.
PLAINTIFFS

AND:

KALARA KURUKANAWA of Yalalevu, Ba, Market Vendor.
FIRST DEFENDANT

AND:

REGISTRAR OF TITLES
SECOND DEFENDANT

Counsel : Mr. S K Ram with MrPadarath for the plaintiff
: Mr W Pilllay for the 1st defendant
: Mr Pickering for the 2nd defendant

Date of Hearing : 30 October 2015
Date of Ruling : 03 December 2015

RULING

Introduction

[01] This ruling concerns with an application for interim injunction.

[02] By inter partes summons filed 26 August 2015 ('the application') the plaintiff seeks an injunctive order restraining the defendant from selling, transferring, dealing with or alienating land covered in Certificate of Title number 7684 (the property) until final determination of this matter.

[03] The application is supported by an affidavit sworn by Nitin Roshan, 2nd named plaintiff. The plaintiff also filed affidavit of ShylinSheetal Roshan, the 1st named plaintiff in reply.

[04] The plaintiff has made this application pursuant to Order 29 of the High Court Rules 1988 (the HCR) and the inherent jurisdiction of the court.

[05] 1st defendant filed affidavit in response.

[06] The plaintiff did not press injunctive order against the 2nd named defendant.

[07] At hearing, both parties orally argued. Only the 1st defendant tendered written submissions. The plaintiffs sought leave to file their written submissions in 7 days. The court accordingly granted leave to file and serve the written submission with the defendant to file submission in reply in 7 days thereafter while setting down the matter for ruling on 03 December 2015. But, nonetheless, the plaintiffs did not file within the time allowed. They filed their written submission only yesterday (02 December 2015).

[08] On 27 November 2015 the plaintiffs also filed a summons together with supporting affidavit seeking leave to read and rely on supplementary affidavit of Shylin Sheetal Roshan in support of the application for injunction. This summons has been filed after matter the being argued and a date for ruling set down.

Background

[09]On 25 February 2015 the plaintiffs and the defendant entered into a sale and purchase agreement. By that agreement the 1st defendant agreed to sell a property to the plaintiffs for the purchase price of $105,000.00. According to the agreement the sale was to be completed on 25 May 2015. The plaintiffs paid to the defendant the sum of $5000.00 as deposit. According to the plaintiffs they were ready and willing to fulfil and perform their obligation under the agreement. The defendant refused and confirmed her refusal in writing on 16 July 2015. As a result of the breach, the plaintiffs claim specific performance and/or in the alternative claim damages in lieu of specific performance. The current application is to seek interim injunction restraining the 1st defendant from selling the property.

[10] The 1st defendant filed statement of defence and stated that the sale and purchase agreement was signed by the defendant under circumstances that were (a) fraudulent, (b) unconscionable, (c) Oppressive and (d) unfair to the defendant. She also states that the plaintiffs manipulated, forced and/or unduly influenced her. She pleads non est factum.

The Law

[11]An application for interim injunction may be made by any party to an before or after the trial of the action pursuant to Order 29, rule 1 of the H C R which provides that:

'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.'

[12] 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.

[13] 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 2001SandDigicel (Fiji) Ltd v Fiji Rugby Union, Civil Action No.: HBC 30 OF 2014S.

Determination

[14] Firstly, I will determine where there is a serious question/issue to be tried.

[15] The plaintiffs submit that, the evidence is credible. The sale & purchase agreement is witnessed before two lawyers. There is no doubt on the authenticity of the agreement. They have attached the affidavit of the lawyer who witnessed the agreement.

[16] On the other hand, the 1st defendant sates that, the sale and purchase agreement was signed by me under circumstances that were fraudulent, and further states that, the plaintiffs only came to know of the sale of the property in the agreement when the original purchaser Mr. Selvin Sachin Nand visited BSP Ba to withdraw a sum of $5000.00 that was to be used as his deposit in purchasing my property. He was legally obliged to disclose the reason for the withdrawal and he then told the 1st named plaintiff (Bank officer) that I was selling my property to him. The plaintiffs then used this information to contact me and harassed me with repeated telephone call during the night and repeatedly begged and forced me to sell my property to them for $10,000.00 more than the sale price to Mr Nand, see paras 6 & 8 of the 1st defendant's affidavit in response. The 1st defendant also states that, 'I only dealt with the clerk at Messrs Chaudhary Associate, and that the plaintiffs and their solicitors demanded that I execute various documents that I did not understand'.

[17] The defendant has raised non est factum as defence.

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

[19] Lord Diplock in AmericanCyanamid 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"

[20] It is not my function at this stage to try to resolve conflicts of evidence on affidavit as to facts on which either party may ultimately depend. However, for the present purpose, I am satisfied that there is serious issue to be tried at the trial.

Inadequacy of Damages

[21] 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).

[22] 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.

[23] The plaintiffs claim specific performance or alternatively claim damages for breach of agreement in lieu of specific performance.

[24] It pertinent to note that 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 the time when the court consider the application for interim injunction.

[25] This is a breach of contract. The defendant appears to have repudiated the contract. Previously the defendant had agreed to sell the property to a Nand. The plaintiffs, according to the defendant, had induced the defendant to sell the property to them. The contract itself is under attack on the ground of coercion. The defendant has pleaded non est factum in her defence. In the circumstances, in my opinion, damages would be adequate remedy to the plaintiffs in lieu of specific performance.

[26] Furthermore, the undertaking given by the plaintiffs is in sufficient. Theydid not show any property. The plaintiffs must proffer sufficient evidence of his ability to satisfy the undertaking. When giving undertaking, the plaintiffs must say what their assets are today; see Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59.

[27] The plaintiffs when giving undertaking must show their means and ability to honour their undertaking as to damages. It would be insufficient to show that equity and income to be granted a loan in the sum of $104,000.00.

[28] The defendant has property in Fiji. She is in a position to pay damages to the plaintiffs if they succeed in their claim.

Balance of Convenience

[29] 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).

[30] Since I have found that damages would be adequate remedy to the plaintiffs, there is no need to further discuss the issue of balance of convenience.

Conclusion

[31] Damages would be adequate remedy to the plaintiffs if they succeed in their claim at the trial. The defendant has shown that she is in a position to pay the damages. In the circumstances, I would refuse to issue interim injunction. In all the circumstances, I would make no order as to costs.

Final outcome

1. Application for interim injunction is refused.
   
2. There will be no order as to costs.
   

M H Mohamed Ajmeer
JUDGE

At Lautoka
03rd December 2015