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Chand v Fong [1991] FJHC 41; Hbc0284d.91s (13 June 1991)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 284 OF 1991

Between:

KAMLESH CHAND
Plaintiff

and:

CHEE WAI FONG
1st Defendant

and:

BANABA LIMITED
2nd Defendant

Mr. V. Parmanandam for the Plaintiff
Mr. S. Inoke for the 1st Defendant
Mr. P. Knight for the 2nd Defendant

RULING

This is an application by the plaintiff the occupier of a premises at Pratt Street, Suva for a mandatory injunction against the 1st defendant the lessee of the premises requiring him to "let the plaintiff into possession forthwith" and thereafter restraining both the 1st defendant and the 2nd defendant the owner of the premises from interfering with the plaintiff's continued occupation of the premises.

In support of his application the plaintiff has sworn and filed an affidavit with numerous annexures; the 1st defendant has also sworn and filed an affidavit opposing the application and seeking an order for possession of the premises.

As for the 3rd defendant Banaba it is common ground that it is not directly involved in the present dispute between the plaintiff and 1st defendant which it maintains was of their own making, however, as owners of the contested premises it is also 'interested' in the outcome of the action.

In addition, although the matter was not pressed with any fervour by the plaintiff's counsel at the hearing of the application nevertheless an injunction is sought against the company which is joined as 2nd defendant in the plaintiff's substantive action.

Without detailing the various facts that gave rise to this application it is clear that the plaintiff's claim or 'cause of action' arises out of an alleged invasion of an equitable right for which the 1st defendant is amenable to the jurisdiction of the court. That the plaintiff's right is based on equitable principles does not in my view preclude the grant of an equitable remedy such as an injunction.

Having carefully considered the opposing affidavits and the plaintiff's Writ of Summons I am satisfied that these collectively raise serious issues to be tried by the court for which oral evidence must inevitably be heard if the various issues are to be resolved.

Needless to say the plaintiff's occupation of the premises for the past 2 years has not been merely by oral arrangement, there were 2 'agreements' executed between the plaintiff and 1st defendant under which possession of the premises was ostensibly given and taken and although the term and legality of these agreements is not entirely clear at this stage, nevertheless the 1st defendant himself accepts that the plaintiff continued to occupy the premises after January 1991 "... on a month to month basis".

A further issue is the sworn assertion by the plaintiff and the 1st defendant that both these 'agreements' were prepared by the other and presented for execution; and the 'unconditional' acceptance of rental for the premises for the month of June by the owner's authorised agent Messrs. Ragg and Associates.

I move next to consider the adequacy of damages as a remedy available to the plaintiff and in this regard learned counsel for the plaintiff whilst properly conceding that that might be a "way out" nevertheless asserted that the substantive relief being sought was an assignment of a renewal of the lease between the defendants presumably in the event that that should occur.

In any event counsel submits that the 'balance of convenience' in the case rests with maintaining the "status quo" that existed for at least 2 years prior to and immediately before the 'lockouts' and which was that the plaintiff physically occupied the premises with the knowledge and agreement of the 1st defendant.

Counsel for the 1st defendant on the other hand alleges that the plaintiff seeks equitable relief with 'unclean hands' and asserts in any event that any "right" of the plaintiff to occupy the premises that might have existed between them ceased in January 1991 and was finally terminated by the 'notice to quit' served on the plaintiff on the 29th of April and which notice expired on the 31st of May 1991.

In the circumstances, the 1st defendant complains that any continued occupation of the premises by the plaintiff effectively deprives him of his legal right as lessee of the premises to occupy it and may 'endanger' his equipment in the premises.

In this latter regard the 1st defendant has issued a summons under S.169 the Land Transfer Act for an order for immediate vacant possession against the plaintiff and that action is listed to be heard sometime later in the month.

I am also mindful of learned counsel for Banaba's comment that the 1st defendant's 'head lease' for the premises expires on the 30th of June 1991 and whatever might be the 'equities' between the plaintiff and the 1st defendant, in the absence of a renewed head-lease there would be no premises over which occupation could be given.

Furthermore counsel submits that the absence of any clear agreement between parties as to what is to become of the 1st defendant's furniture, fittings and chattels within the premises casts some doubt on the plaintiff's assertion that there was an agreement to assign the renewal of the lease.

In considering whether or not damages are an adequate remedy in the case, I bear in mind that on the premises being sought by both parties is a lucrative takeaway business which was operated by the plaintiff's wife for the past 2 years and although both parties can be compensated by damages, each seeks to occupy the premises but both are presently locked-out.

In my view it is in neither parties interest that the premises should remain locked-up until such time as their respective rights are finalised by the court and in the circumstances exercising as best I can my discretion in the matter and without in anyway deciding the substantive issues in the case, I find that the 'balance of convenience' lies in maintaining the status quo that has held sway between the parties for the past 2 years and up until the 31st of May 1991.

Accordingly subject to the plaintiff giving an undertaking as to damages an injunction will issue against the 1st defendant requiring him "forthwith to let the plaintiff into possession of the premises at 16 Pratt Street and thereafter restraining him, his servants and/or agents from interfering with the plaintiff's occupation of the premises until further order".

In so far as the 2nd defendant is concerned, as presently advised I can see no sufficient cause to order an injunction against it and accordingly it is refused.

For the sake of completeness the 1st defendant's application for an injunction in Civil Action No: 283 of 1991 is hereby refused.

(D.V. Fatiaki)
JUDGE

At Suva,
13th June, 1991.

HBC0284D.91S