Akbar v Akbar [2024] FJHC 101; HBC211.2023 (16 February 2024)

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 211 of 2023

BETWEEN:TASNEEM AKBAR of Unit 23, 81 Lalor Rd, Quaker Hill, NSW 2763, Sydney, Optometrist & MOHAMMED AATISH AKBAR of Pfarrst 4, Dachau 85221, Germany, Operations Manager.

PLAINTIFF/APPLICANT

MOHAMMED TAABISH AKBAR of 12 Leka Street, Samabula, Suva, Businessman.

DEFENDANT/RESPONDENT

Appearance:

Mr S. Nandan: for the Plaintiff/Applicant (Reddy & Nandan Lawyers).

Mr S. Singh & Ms Saumaki: for the Defendant/Respondent (Shelvin Singh

Lawyers).

Date of Hearing: 9^th February 2024

RULING

[1] The Plaintiffs filed a Writ of Summons on 13^th July 2023 seeking various declarations and orders relating to the Estate of their late mother. One of the orders sought in the Writ is “an injunction to restrain the Defendant whether by himself his servants or agents or howsoever otherwise from transferring or dealing in any way the Estate property unless in accordance with the order of the Court.” On 21^st September 2023, the Plaintiffs filed Summons for Injunction and Ancillary Orders pursuant to Orders 29 and 43 of the High Court Rules 1988. They sought the following orders:

“1. That the Defendants by his solicitors and/or his servants and/or his agents and/or howsoever be restrained from dealing with the assets of Gulnoor Akbar including but not limited to any dealings in relation to the property legally described as Certificate of Title 8245, Lot 48 on DP 1928 in the Province of Viti Levu in the District of Suva, having an area of 34.2 perches (the Property) including but not limited transferring, dealing with, charging, mortgaging, assigning, the property until the final order of the Honourable Court.

2. That the Defendant file and serve on the Plaintiffs’ solicitors an affidavit disclosing the accounts of the Estate of Gulnoor Akbar within 14 days of grant of an order for such accounts.
3. Any other or further orders that the Court deems just.
4. Costs be in the cause.”

The summons accompanied an affidavit of Mohammed Atish Akbar, the second named Plaintiff/ Applicant.

[2] An affidavit in opposition was filed on behalf of the Defendant on 23^rd November 2023. An affidavit in reply to the affidavit in opposition was filed on 8^th February 2024. The parties in this matter are siblings. Their parents being Mohammed Razaak Akbar and Gulnoor Akbar. Both are now deceased.

[3] The first issue relates to interlocutory injunction (Order 29 of the High Court Rules 1988). The principle to be applied in applications for interlocutory injunctions have been authoritatively explained by Lord Diplock in American Cyanamid Co v. Ethicon Ltd [1975] UKHL 1; [1975] A.C 396; [1975] 1 All E.R. 504 H.L. They may be summarised as follows:

(i) The Plaintiff must establish that he has a good arguable claim to the right he seeks to protect;
(ii) The Court must not attempt to decide this claim on the affidavits; it is enough if the Plaintiff shows that there is a serious question to be tried.
(iii) If the Plaintiff satisfies these tests, the grant or refusal of an injunction is a matter for the exercise of the court’s discretion on the balance of convenience.

[4] The submission for the Plaintiff’s/Applicants on the issue if there is a serious question to be tried is (a) whether the Defendant wrongfully procured and induced Gulnoor Akbar to execute certain conveyance and transfers, and (b) Whether Gulnoor Akbar was induced to convey and transfer her shares in the property by undue influence of the Defendant and under his direction and pursuant to the faith, trust and confidence Gulnoor Akbar reposed in the Defendant but without any separate or independent advice and without due consideration of the reasons and effect of what she was doing. For the Defendant it is submitted that there are no serious questions to be tried. They state that the Plaintiffs have not supported allegations that Gulnoor Akbar was not compo mentis with any medical evidence. The other submission is that it is deposed in his affidavit in opposition that all the children were informed during Gulnoor Akbar’s 80^th birthday celebration about the agreement reached with the Defendant to transfer the shares to him. The Defendant states that this has not been responded to by the Plaintiffs in their affidavit in reply. The Defendant also refer to 2 Deeds of Settlement executed in 2010 and 2018. The 2010 Deed is between the parents and the Defendant. The 2018 Deed is between the Defendant and Gulnoor Akbar in person and as Executrix in the Estate of Mohammed Razaak Akbar. The Defendant argues that the Deed shows the intention of the Parents in relation to the property.

[5] The submission for the Plaintiffs is that damages are not an adequate remedy as there is a danger of alienation of rights and interests of parties in the property. The Plaintiffs additional issue is that the property is of sentimental value to both the parties, as it belonged to their deceased parents. The submission for the Defendant is that the Plaintiffs are seeking general and exemplary damages in Paragraph 18 of the Statement of Claim. This according to the Defendant is clear acknowledgment that damages may be an adequate remedy for the Plaintiffs.

[6] On the issue of the balance of convenience for the Plaintiffs it was submitted that “a good starting point when trying to assess this is from the orders sought themselves and the effect of the orders. The orders will in effect maintain status quo and in effect protect both the parties’ interests until final determination of the matter.” For the Defendant it was argued that the balance of convenience favours maintaining the status quo in that the Defendant being the registered owner is entitled not to have any adverse orders made against him. The undertaking as to damages by the Plaintiff is stated in the affidavit in support by Mohammed Atish Akbar as “that both the Plaintiffs give the usual undertakings as to damages. In support of this undertaking. I note that both the Plaintiffs are entitled to hereditaments from Gulnoor’s estate here in Fiji which should suffice to meet this undertaking.” The Defendants oppose such an undertaking and argue that the Plaintiffs cannot make their entitlement be used as undertakings as to damages.

[7] I note that from 1993 the Defendant has had one-third undivided share in the property over which an injunction is sought. A third each were the parents share. The Defendant in his affidavit in opposition has averred and annexed a Deed of Settlement dated 7^th October 2010 where his parents agreed to sell and transfer their shares in the property to the Defendant for consideration as set out in the said Deed. The Deed of 7^th October 2010 is not in dispute. Later in 16^th November 2018 another Deed of Settlement was entered into between the Defendant and his mother (Gulnoor Akbar), in personam and as the Executor of Estate of Mohammed Razaak Akbar. The 16^th November 2018 Deed acknowledged the 7^th October 2010 Deed and sought that Gulnoor Akbar convey the two undivided shares (One third in personam and one third as Executrix of the Estate of Mohammed Razaak Akbar) to the Defendant.

[8] In paragraph 10 of the Affidavit in Reply of Mohammed Atish Akbar, states that “also the Deed is executed by Gulnoor Akbar as Transferee in person and transferor and by the Defendant as Transferee in his capacity as Executor of Estate of Mohammed Razak Akbar. If one third of the property was transferred to the Defendant in 1993 and two thirds of the Estate were transferred on 7^th October 2010, then there were no other shares in the property to be transferred. The documentation appears to be defective.” On the material before me I note that the Defendant is not the Executor of the Estate of Mohammed Razak Akbar. I note that the deed was executed by Gulnoor Akbar, in personam and as the Executor of Estate of Mohammed Razaak Akbar. One third share of the Property was transferred to the Defendant in 1993. I have not seen any documentation of a transfer of the property or estate taking place on 7^th October 2010.

[9] In my assessment of the material submitted to me I find that there are certain issues between the parties that the court needs to clarify. It is in the parties interest that the issues are resolved. The Plaintiffs are seeking an injunction restraining the Defendant from dealing with the Estate of Gulnoor Akbar. The Estate cannot be brought to a standstill. An Executor needs to continue his work. He is accountable for his dealings of the Estate. The Plaintiff states that there are serious issues, while the Defendant argues otherwise. The Plaintiffs have pleaded and sought damages. I am of the view that damages might be adequate remedy for the Plaintiffs. The Plaintiffs acknowledge that the property has sentimental value. They hold that it is sentimental for both the parties. The chance of the property being disposed of is low.

[10] Lord Diplock in the American Cyanamid stated that “one of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that " it aided the court in doing that" which was its great object, viz. abstaining from expressing any opinion upon "the merits of the case until the hearing " (Wakefield v. Duke of Buccleugh [1865] 12 L.T. n.s. 628 at 629). So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.” The undertaking as to damages are stated by the Plaintiffs to be as usual. In fact, the undertaking by the Plaintiffs is unusual. They should provide undertakings of their own financial capabilities and not be reliant on their shares in the Estate of Gulnoor Akbar. In Natural Waters of Viti Ltd v. Crystal Clear Mineral Water (Fiji) Ltd [2004] FLR 545; FJCA 59 (26^th November 2004), Justices Barker, Tompkins and Scott stated “applicants for interim injunctions who offer undertakings as to damages should always proffer sufficient evidence of their financial position. The Court needs this information in order to assess the balance of convenience and whether damages would be adequate remedy.”

[11] After weighing all the relevant factors I have reached a conclusion that the balance of convenience lies in refusing an interlocutory injunction. Status quo is maintained.

[12] The other issue (second issue) is the accounts of the Estate of Gulnoor Akbar. The Plaintiffs have sought that “the Defendant file and serve on the Plaintiffs’ solicitors an affidavit disclosing the accounts of the Estate of Gulnoor Akbar within 14 days of grant of an order for such accounts”. Order 43. Rule 1 provides “(1) Where a writ is indorsed with a claim for an account or a claim which necessarily involves taking an account, the plaintiff may, at any time after the defendant has acknowledged service of the writ or after the time limited for acknowledging service, apply for an order under this rule.”. The Writ of Summons filed on 13^th July 2023 by the Plaintiffs is not indorsed with a claim for an account or a claim which necessarily involves taking an account. Order 6 Rule 2 (1) (a) provides that “Before a writ is issued it must be indorsed– (a) with a statement of claim or, if the statement of claim is not indorsed on the writ, with a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby;”. Where an account is sought, the claim for it must be indorsed in the Writ of Summons. No claim for an account of the Estate of Gulnoor Akbar is made in the Writ of Summons. The Plaintiffs have not complied with Order 43 Rule 1 of the High Court Rules. In order to seek an account of the Estate of Gulnoor Akbar under Order 43 Rule 1 of the High Court Rules 1988 the Plaintiffs needed to indorse in the Writ of Summons as per Order 6 Rule 2 (1) (a) of the High Court Rules 1988 a claim that an account is sought for the said Estate.

[13] For the reasons given here the Originating Summons are dismissed. The Plaintiffs are to pay the Defendant $2000.00 as costs, within 30 days. The Costs have been summarily assessed.

[14] The Court Orders as follows:

(a) The Plaintiffs Summons seeking interlocutory injunctions and ancillary orders are dismissed.

(b) The Plaintiffs are to pay the Defendant $2000.00 as costs, with 30 days. The costs have been summarily assessed.

.....................................
Chaitanya Lakshman
Acting Puisne Judge
16^th February 2024