Prasad v Fiji Sugar Corporation Ltd [1977] FJSC 167; Action 41 of 1977 (25 March 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 41of 1977

BETWEEN

SHIU PRASAD, HARI CHAND
& SHIRI CHAND
sons of Patan
Plaintiffs

AND

FIJI SUGAR CORPORATION LTD.
Defendant

Mr. G.P. Shankar for the Plaintiffs
Mr. K.P. Mishra for the Defendant

JUDGMENT

This is a summons for an injunction requiring the defendant to pay to the plaintiffs all moneys from plaintiffs' farm No. 7156. The affidavit in support merely states that the plaintiffs are the holders of a sugar cane contract for Farm No. 7156, that they supplied sugar cane from the farm to the defendant and that the defendant will not pay them. I have no doubt that the defendant had some reason for refusing to pay and that the plaintiffs know the reason and I would have expected the plaintiffs to disclose that in their affidavit. However, an officer of the defendant states that the money are held in pursuance of the order of this Court in Action No. 135 of 1976. The application was adjourned for the plaintiffs to file a further and better affidavit. They have filed a further affidavit. They say they are exhibiting an order of the Court, but what they do in fact exhibit is a copy of a judgment of Williams J. I would have hoped that plaintiffs' solicitor knew the difference between a judgment of a judge and an order of the Court. Of course, in this case his difficulty is that he did not seal an order in pursuance of the judgment at all. Then the plaintiffs exhibit two letters, one from Messrs Sahu Khan which makes no reference to Farm No. 7156, and one from Messrs G.P. Shankar & Co. to the defendant. The letter from Messrs G.P. Shankar says it is clear from Sahu Khan and Sahu Khan's letter that there is no dispute about Farm 7156. With all respect to the writer of that letter, I do not think it is clear at all. Then the affidavit goes on to show that, although Farm 7156 comprises 13.5 acres from Native Lease 10551, that lease was never owned by Ram Kali deceased who was the wife of the First plaintiff. The Plaintiffs says that Farm 7156 is owned by the three of them, the first plaintiff in his own right and the second and third executors of their father. The plaintiffs, incidentally are all brothers.

I turn now to Action 135 of 1976 and the judgment of Williams J therein in an application for injunction. That application was for certain relief in relief of Farms 7154 and 7155. The learned judge refused the application but ordered the Fiji Sugar Corporation to hold all moneys from Farm 7155 and any other contract which formed part of the estate of Ram Kali deceased. The learned Judge also required the plaintiff in that action who is the first plaintiff in this case, to file an affidavit giving further information. That has been done, but it gives no information about Farm 7156.

I am quite clear after looking at the papers that Farm 7156, although part of Native Lease 10551, did not form part of Ram Kali's estate because the latest contract for Farm 7156 was issued in the name of the plaintiffs in 1970 whereas Ram Kali died in 1974, and any sublease of the land over which the contract operated would have been unlawful. However, I am also clear that Mr. Shankar has been the author of his own difficulties by failing to make a full affidavit in either the proceedings before Williams J or the present proceedings. In my view these proceedings need never have begun. This Court has discretion in the grant of an injunction and I am not prepared to exercise that discretion in this case in the plaintiffs' favour. Mr Mishra undertakes that in view of what I have said defendant will pay out moneys held under Farm 7156, and Mr. Shankar accepts that undertaking. There will be no order on the summons.

(Sgd.) K.A. Stuart
JUDGE

25th March, 1977
LAUTOKA.