Export Freight Services (Fiji) Ltd v Chan [2017] FJHC 734; Civil Case HBC 217 of 2017 (29 September 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Case No.: HBC 217 of 2017

BETWEEN : EXPORT FREIGHT SERVICES (FIJI) LIMITED a limited liability company of Tamavua-i-Wai, Suva

1^ST PLAINTIFF

AND : THERESA CHAN of Tamavua-i-Wai, Suva, Executive Human resources Officer.

2^ND PLAINTIFF

AND : JANE CHAN of Lot 32 Nokonoko Road, Laucala Beach Estate, Suva, Domestic Duties

DEFENDANT

Counsel : Mr. S. Fa for the Plaintiffs
Mr. P. Katia for the Defendant

Date of Hearing : 12 September, 2017
Date of Judgment : 29 September, 2017

JUDGMENT

INTRODUCTION

1. The 1^st Plaintiff is a legal person and 2^nd Plaintiff is the Head of Human Resource Department (HRD) of 1^st Plaintiff. The statement of claim as well as the Inter Partes Summons sought to restrain the Defendant from entering the premises of the 1^st Plaintiff. The basis of the claim as well as the injunction was an allegation, that on 21.7.2017, Defendant had come to the office of the 1^st Plaintiff regarding an error of payment of salary of her husband and had uttered certain derogatory words in the absence of 2^nd Plaintiff. There after she had visited 2^nd Plaintiff’s place of residence and had also got the error in the payment of cheque rectified. There is no evidence that she had entered and or instrumental in any interference with the activities of 1^st and or 2^nd Plaintiffs, even though affidavit in support state that she was ‘advised’ that this had happened in the past.
   

FACTS AND ANALYSIS

2. In the inter parties summons the following orders are sought;

‘i. That the Defendant herein be restrained by way of an injunction from entering the premises of the 1^st Plaintiff situated at Tamavua- i-Wai, Suva and or interfering with the staff of the 1^st Plaintiff.

ii. That Defendant herein be restrained by way of injunction from entering the STF Work Site at Nadawa that belongs to the 1^st Plaintiff, and /or interfering with staff of the 1^st Plaintiff therein.

iii. That Defendant herein be restrained by way of injunction from entering the Warehouse and West Office of the 1^st Plaintiff located at Velovelo Road, Wairabetia, Lautoka and/or interfering with staff of the 1^st Plaintiff therein.’

3. All the orders sought are to restrain entering three specific premises and interference with the staff of the 1^st Plaintiff.
   
4. The first Plaintiff is a legal person and there is no evidence that the Plaintiff had taken a decision to institute an action against Defendant and or authorized the second Plaintiff to do so on behalf of the 1^st Plaintiff against Defendant.
   
5. So the Application for injunction is filed without any authority from the Board of 1^st Plaintiff, by an employee of 1^st Plaintiff. It should also be noteworthy that any undertaking as to the damages needed to be given by the Plaintiffs and paragraph 23 of the affidavit in support only state as follows

“The Plaintiffs undertakes (sic) to pay damages to the Defendant in event of any losses that she may incur as the result of this injunction”

6. The 2^nd Plaintiff cannot undertake any obligation on behalf of 1^st Plaintiff, when she had not even been authorized by the Board of the 1^st Plaintiff to institute an action jointly with 1^st Plaintiff.
   
7. 2^nd Plaintiff had failed to reveal her status to consider any undertaking as to the damages.
   
8. The Application for injunction needed to be struck off in limine as there was no authorization to institute action restraining entry of a person to the premises of 1^st Plaintiff or interference with its employee.
   
9. It is only 1^st Plaintiff and or properly authorized person that can institute action for such an injunction. There is no evidence of such a decision being taken by the Board of the 1^st Plaintiff or any instructions were received on behalf of 1^st Plaintiff even to institute legal proceedings in the name of 1^st Plaintiff or on behalf of its employees as the Head of HRD of 1^st Plaintiff. 2^nd Plaintiff being a mere employee of 1^st Plaintiff cannot usurp the authority of an legal entity without any evidence to support and she cannot file an action for injunction which may result in a damages claim against an entity that has not authorized her to seek such an injunction, and or to institute action on behalf of its employees .
   
10. Even if I am wrong, considering the affidavit in support the Plaintiff had averred hearsay evidence as to the incident of Defendant’s behaviour on 21^st July, 2017. 2^nd Plaintiff had neither heard nor seen such behaviour that is alleged in support of her injunctive order. There is an unsworn statement by an employee whose statement is annexed to the affidavit in support as “A”. The reason for not annexing an affidavit obtained from that employee was not explained.
    
11. The perusal of statement would not reveal a serious interference that needed intervention of court and exercise of discretionary power of the court, by way of an injection.
    
12. In the sworn affidavit of Defendant she had denied that she behaved badly in the office, she states that when she was informed that the 2^nd Plaintiff was not at the office she and her husband had visited her home the same day and had obtained her signature to rectify the error in the cheque and she had also visited that office again on the same day and the error was rectified. There was no allegation of Defendant’s behavior when she visited the same office the second time after obtaining signature of 2^nd Plaintiff.
    
13. It is not appropriate to consider conflicting evidence at this juncture on available evidence before me since it is at interlocutory stage. (See American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504 at510 Per Lord Diplock)
    
14. The Plaintiff is alleging an incident happened on 21.7.2017 and relied on hearsay evidence and an unsworn statement of a subordinate employee, in order to seek restrictions on entering the premises belonging to the 1^st Plaintiff, as well as for an order not to interfere with employees.
    
15. As stated earlier it is only 1^st Plaintiff that can seek such an order and for that purpose there should be some form of consent expressed by the Board of the 1^st Plaintiff and without such consent in my mind no serious question to be tried to consider a permanent injunction restraining Defendant from entering the premises of 1^st Plaintiff including the office of the 1^st Plaintiff and this application needs to be struck off.
    
16. Even if am wrong on that, assuming that there is a serious question to be tired at the hearing, the balance of convenience favours refusal of injunction. Defendant as a wife of one of the directors can enter the premises of 1^st Plaintiff without interference with the work of the entity. There is no evidence that due to her alleged conduct the work ethic or moral of the workers have affected. It is only the 2^nd Plaintiff who is Head of HRD, seeks to restrain the Defendant entering premises of 1^st Plaintiff or interference with employees of 1^st Defendants at three different locations. There is no evidence of any incident in these premises other than incident alleged on 21.7.2017 at 2^nd Plaintiff’s office.
    

CONCLUSION

17. There is no consent from 1^st Plaintiff to seek injunctive relief in this action. The evidence before me do not indicate serious question to be tried for a permanent injunction against the Defendant. Vital facts contained in the affidavit in support are hearsay. Application for injunction is struck off. The cost of the application is summarily assessed at $1,000.
    

FINAL ORDERS

1. Application for injunction is struck off.
2. Cost is summarily assessed at $1,000.
   

Dated at Suva this 29^th day of September, 2017.

................................................

Justice Deepthi Amaratunga

High Court, Suva