Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Kumar v Kolitaciane [1991] FJHC 55; Hbc0448d.91s (30 September 1991)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 448 OF 1991

Between:

ASHOK KUMAR
s/o Shiu Kumar
Plaintiff

- and -

TEVITA KOLITACIANE
1st Defendant
CHEN YIJING AND
HUANG TZUNG HAO
2nd Defendants

Mr. M. Raza for the Plaintiff
Mr. H. Nagin for the Defendants

RULING

On the 16th of September the plaintiff obtained ex-parte an interim injunction restraining the defendants from selling or disposing of shoes and other items taken from the shop premises of A. Kumar Footwear situated at Lilac Theatre.

A. Kumar Footwear was first registered by the plaintiff on the 30th of April 1991 with the plaintiff, the 1st defendant and one Shi-Zhi-Xin as joint partners.

The firm originally traded in shoes but later expanded to clothing, toys and household goods and appliances. The plaintiff in whose name the firm was registered was responsible for the 'day-to-day' trading of the firm and he was paid a weekly wage of $80. It is also common ground that at the end of each days trading the receipts were taken by the 2nd defendants. Why this was so is not fully explained by the plaintiff and at best tends to support the defendant's assertions to the contrary.

The firm traded in that manner for several months until about the month of August 1991 when differences arose between the partners as to the manner in which the business was being run by the plaintiff.

Matters came to a head on the 9th of September 1991 when the 1st defendant and the 1st named 2nd defendant entered and removed almost the entire stock-in-trade of the business from its premises at Lilac Theatre to the 2nd defendant's residence at 140 Nailuva Road and part to the 1st defendant's retail shop at Nausori Town.

The justification offered by the 1st defendant for this seemingly "precipitative" action was that:

"The goods were legally taken by Silver Rule for the following reasons:

(a) the goods were the property of Silver Rule;

(b) the goods were taken by Silver Rule with the consent of Shi-Zhi-Xin and myself. We are two of the three partners in A. Kumar Footwear."

To support this assertion the 1st defendant has produced 4 sets of customs import entries and invoices that indicate that numerous items including shoes and other merchandise was imported into Fiji by Sum Yun Trading Co. immediately prior to, during and for some time after A. Kumar Footwear began to do business.

I note however that no effort has been made to independently 'link' Silver Rule to Sum Yun Trading other than by a disputed assertion by the 1st defendant that the importation of the goods was effected by Silver Rule " ... through Sum Yun Trading".

Not surprisingly the plaintiff denies that the stock in trade belonged to Silver Rule and every effort has been made by him in his most recent affidavit, to deny the existence of any relationship between Silver Rule and A. Kumar Footwear.

The plaintiff does not appear however to have denied that the goods imported under the various invoices and import entries comprised some, if not all, of the stock in trade of A. Kumar Footwear.

Clearly the ownership of the goods and the relationship (if any) between Silver Rule and A. Kumar Footwear raises serious questions that can only be decided by oral evidence. That however is only a threshold question which may support the issuance of an injunction.

The immediate question for determination however is whether the injunction granted ex-parte to the plaintiff ought to be continued and in that regard I have reached the firm conclusion that it ought not to be for the following reasons:

(1) The plaintiff whilst seeking to restrain the disposal of the items in question has not provided any inventory of the goods nor has he sought to adduce independent documentary evidence to support his bald assertion that the goods are the property of A. Kumar Footwear other than the fact that they were in the premises of A. Kumar Footwear;

(2) The plaintiff on his own affidavits and Statement of Claim is "... in financial difficulties ..." and whatever financial interest he may have in real estate is as yet unclear. Needless to say his bold assertion that he had contributed $11,000 in cash towards the business borrowed from relatives and friends could have been independently supported yet was not;

(3) The circumstances surrounding the withdrawal of a sum of $1,350 from the bank account of A. Kumar Footwear and its material non-disclosure to the Court in the plaintiff's original affidavit suggests to my mind a lack of umberriae fides on the plaintiff's part in obtaining the injunction ex-parte; and

(4) I am firmly of the view that the plaintiff's claim can be adequately met by an order for the taking of an account and an award of damages in the event that he is able to successfully prosecute his claim.

Accordingly the injunction is hereby dissolved with costs to the defendants to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
30th September, 1991.

HBC0448D.91S