Sharma v Devi [2011] FJMC 147; Family Case 07 NAN 186 (30 November 2011)

IN THE FAMILY DIVISION OF THE MAGISTRATE'S COURT
AT NADI WESTERN DIVISON

Nadi Family Case No. 07 NAN 186

BETWEEN:

UMA DUTT SHARMA father's name Brahama Dutt Maharaj, Dentist
Of Lot 30, ATS Subdivision, Namaka, Nadi.
APPLICANT

AND:

SHANTI DEVI father's name Dhanpati Raju, Unemployed
Of Lot 30, ATS Subdivision, Namaka, Nadi.
RESPONDENT

Ms. Tupou Draunidalo for Applicant
Messrs Vijay Naidu & Associates for Respondent
Date of Ruling: 30. 11. 2011

RULING

1. BACKGROUND

THIS is an application by the Respondent to dissolve the interim injunctive orders granted by this on 15.07.2011.

On 15 .03.2011 the Applicant filed an Application for final orders in Form 9 and 12 seeking certain orders:

In Form 9 Application the Applicant sought the following orders:

1. Full custody of the children namely Divya Shivangni Sharma and Anoushka Arundhati Sharma with reasonable access to the respondent.
   
2. Non molestation order.
   
3. Respondent to give me on(e) vehicle for my children to travel to school.
   
4. Any other orders the Honourable Court deems just.
   

In Form 12 Application the Applicant sought the following orders:

1. Respondent to give me one vehicle for my children to travel to school
   
2. Respondent to stay away from me and children within 50-100 metres away wheresoever.
   

In support of these Applications the Applicant filed her Affidavit and two other Affidavits sworn by her daughters namely Divya Shivangni Sharma and Anoushka Arundhati Sharma. These Affidavits were sworn on 15. 07. 2011 to which the Respondent filed an Affidavit in Opposition sworn on 27. 07. 2011.

The Respondent, on the 18th April 2011 filed Response to the Application for Final Order (F10) with Supporting Affidavit sworn on the 14th April 2011.

The Applicant also filed another Application in Form 5 for Maintenance or Contribution for herself and for the two daughters on the same day, being 15.03.2011. To which the Respondent filed response (From 6) on the 24th May 2011.

On the 1st July 2011 the Applicant filed another Application for final orders (Form9) and sought the following orders:

i) That the Respondent to be restrained from transferring assigning the matrimonial properties:

a). Vehicle registration nos. DIVYA and DU 553.

b). Property situates at Lot 30 ATS Subdivision being Certificate of Title no. 28009 comprising of 600sq meters.

ii) Any trust fund and / bank account in any bank or financial institution under the name and style of Uma Dutt Sharma family trust and any bank account named under the name and style of Uma Dutt Sharma (father's name Barma Din Maharaj) be frozen forthwith until further orders of the court.

iii) That the Respondent be restrained from evicting any of the existing tenants occupying or renting the property situated at Lot 30 ATS Subdivision also known as Namaka Shortlane Street.

In the meantime, on 15.07.2011 the Applicant filed an ex parte Notice of Motion together with supporting Affidavit sworn on 15.07.2011 and obtained the following orders:

1. Restraining the Respondent from coming near the matrimonial property.
   
2. Restraining the Respondent from renting out any part of the property to anyone else pending the determination of the Final Orders sought on 01/07/11.
   

On the 28th July 2011 the Respondent filed Response (Form 13) gather with Supporting Affidavit and sought, inter alia, that the Interim Order granted against the Applicant by this Honourable Court on the 15th July 2011 be dissolved forthwith. To which the Applicant filed Affidavit in Reply on 16th August 2011. The Respondent also filed to the Application for the Final Orders on 1st September

To my surprise, the Applicant filed another affidavit sworn on 26.07.2011 to which the Respondent filed an Affidavit in Opposition sworn on 17. 08. 2011.It is noteworthy that this supplementary affidavit, without serving to the Respondent, has been filed after obtaining the ex parte orders on 15.07. 2011.

At the hearing into the dissolution of the Injunctive orders which was held on Friday the 11th November 2011, the Respondent and Dr. Isireli Biumaitotoya gave sworn evidence and they were cross examined by the Applicant's counsel. The Applicant did not give evidence. She chose not to give sworn evidence in Court.

2. THE ISSUE
The issue before the court now whether the ex parte injunctive orders obtained on 15. 07. 2011 by the Applicant should be dissolved.

3. THE LAW
The principles with respect of the application for a dissolution of interlocutory injunction granted ex-parte was canvassed by the High Court of Fiji in Eastern Express Limited v Merchant Bank of Fiji Ltd and Credit Corporation Fiji Ltd Civil Action No: 0026/2001 at the High Court in Labasa. His Lordship Justice Fatiaki as he was then held that:

The principle requiring full and frank disclosure in ex parte applications has recently been enunciated and affirmed in Bank of Mellat v Nikpour [1985] F.S.R. 87 where Donaldson J said:

"This principle that no injunction obtained ex parte shall stand if it has been obtained in circumstances in which there was a breach of the duty to make the fullest and frankest disclosure is of great antiquity.

Indeed, it is so well enshrined in the law that it is difficult to find authority for the proposition; we all know I; it is trite law. But happily we have been referred to a dictum of Lord Justice Warrington in the case of R. V. Kensington Income Tax Commissioners, ex p. Princess Edmond de Polignac (1917) 1 K.B. 486 at p. 509. He said: 'It is perfectly well settled that a person who makes an ex parte application to the court – that is to say, in the absence of the person who will be affected by that which the court is asked to do – is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him'."

Furthermore, Lord Cozens-Hardy M. R. in dealing with the consequences of non-disclosure in ex parte applications aptly summed it up when he said in R. v. Kensington Income Tax Commissioners (op.cot) at p.505:

"....... the court ought not to go into the merits of the case, but simply say, 'we will not listen to your application because of what you have done'".

4. MATRIMONIAL PROPERTY

The Applicant has obtained the ex parte injunctive orders on the assertion that the property she is residing is a matrimonial property. There is no application for property settlement filed by the Applicant. The subject property is a Trust Property and the Deed of Trust was registered on 12. 05. 2005. The Respondent is the Trustee of the property.

5. NON-DISCLOSURE

The Applicant did not disclose the fact that the subject property was a Trust property when she obtained the ex parte injunctive orders on 15 July 2011. In my opinion this is a material non-disclosure on the part of the Applicant and if this fact, the fact that the subject property was a Trust Property, had been revealed at that time the court would not have issued the ex parte injunctive orders. After obtaining ex parte interim injunctive orders the Applicant cannot be heard to say that she has provided better and clear information to court. The Applicant should have disclosed this information before obtaining the ex parte injunctive orders. The Applicant was in a hurry to obtain the ex parte injunctive orders. She obtained the ex parte injunctive orders and removed the Respondent from the property he was residing in. The Applicant after the ex parte orders even prevented the Respondent from collecting the rent from the property which he was doing before.

The Applicant did not come to court with clean hand. She did not disclose the material information relating to the subject property. The Applicant had a duty to make the fullest and frankest disclosure to court. She was in breach of this duty. The Applicant had obtained the ex parte injunctive orders with a sinister intention.

It is fundamental to any ex parte application for an injunction that the party applying for it should show the utmost good faith in making the application and that the doctrine uberimmae fidei in affect applies.

In the matter at hand the Applicant has failed to show the utmost good faith in making the ex parte application. I should say in this case ex parte injunctive orders have wrongly been obtained by the Applicant. The court cannot listen to her application because of what she has done.

6. SUBSTANTIVE RELIEF

The Applicant has obtained these ex parte injunctive orders without any substantive relief. No application for property settlement was filed by the Applicant. Even in the Application for Final Orders the Applicant has sought some restraining orders without any substantive relief.

7. CONCLUSION

The Applicant has obtained the ex parte injunctive orders without making the fullest possible disclosure of all material facts within her knowledge as I have explained in this ruling. I therefore dissolve forthwith the ex parte injunctive orders made on 15. 07. 2011 by this court.

M H Mohamed Ajmeer
Resident Magistrate

30. 11. 2011