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Aziz v Miller [1994] FJHC 128; HBM0465d.1994s (27 September 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBM0465D OF 1994

Between

ABDUL AZIZ
(f/n Abdul Gafoor) of Wailevu, Labasa, Businessman.
Plaintiff

And

VERNON MILLER
of Dreketi, Bua, Businessman.
Defendant

Counsel: Mr. Raza for Plaintiff

Hearing: 27 September 1994
Decision: 27 September 1994

DECISION OF PAIN J. ON
APPLICATION FOR INTERLOCUTORY INJUNCTION

The Plaintiff has filed a writ alleging that the Defendant is in breach of an agreement dated 29 September 1993 whereby the Plaintiff agreed to sell machinery and motor vehicles to the defendant. He claims that he is entitled to immediate return of the machinery and vehicles in terms of paragraph 9(b) of the agreement. The claim is for immediate return and/or $64,000 (being the balance alleged to be outstanding under the agreement).

Contemporaneously the Plaintiff has filed an ex parte motion for an order that the Defendant forthwith deliver the machinery and vehicles to the Plaintiff. Counsel for the Plaintiff submits that the Plaintiff is validly exercising his rights and is entitled to the return of the articles. He suggests that the Defendant be given 7 days to challenge an order for its return.

At the hearing I indicated to counsel for the plaintiff that the application would be refused and I would give brief reasons in writing.

An ex parte order can only be made under Order 29 Rule 1(2) "where the case is one of urgency and the delay caused by proceeding in the ordinary way would entail irreparable or serious mischief". In this case it is alleged that the default is in payment of two amounts of $32,000 each for which the defendant's cheques dated 1st April 1994 and 1st August 1994 were not met on presentation. However there is no evidence whatever that the matter is one of urgency or that any harm is being caused to the Plaintiff. The threshold requirement for the making of an ex parte order has not been established.

Furthermore the Plaintiff is seeking an ex parte mandatory injunction to obtain the final relief claimed in the action. In my decision dated 6th July 1994 on a similar application in Fiji Development Bank v Alfred Thomas (Civil Case 290/94) I referred to this practice of using the interlocutory injunction procedure to obtain final judgment without the Defendant having any opportunity of being leard. I also made reference to the reluctance of the Court to grant an interlocutory injunction that effectively puts an end to the substantive action. I confirm the views expressed in that decision. As in that case, I consider that the present ex parte application is totally inappropriate.

The application is refused.

JUSTICE D.B. PAIN

HBM0465D.94S