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Kohli v Kohli [1994] FJHC 33; Hbj0141d.1993s (11 April 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 141 OF 1993

BETWEEN:

AMI CHANDRA KOHLI
Plaintiff

AND

HARISH KOHLI
Defendant

M. Patel: For the Plaintiff
G.P. Shankar: For the Defendant

Date of Hearing: 27th September 1993
Date of Interlocutory
Judgment: 11th April 1994

INTERLOCUTORY JUDGMENT

The Plaintiff is a solicitor residing at Nasea, Labasa. The Defendant is a retired solicitor also residing at Nasea, Labasa.

On the 11th of March 1993 I granted the Plaintiff an Interim Injunction restraining the Defendant from preventing the Plaintiff and his family from entering and peacefully enjoying and residing in the bottom flat of premises held by the Defendant under a Crown Lease dated 15th of October 1968. I further ordered that the Defendant be restrained from:

(i) preventing the Fiji Electricity Authority from re-connecting power to the flat; and

(ii) that the Defendant be restrained from entering the bottom flat occupied by the Plaintiff;

(iii) that the Defendant be restrained from changing any of the locks of the flat;

(iv) that the Defendant be restrained from interfering with the Plaintiff's right of access to and from the flat;

(v) that the Defendant be restrained from interfering with the water supply or any of the amenities to the flat.

I also made two other incidental orders against the Defendant which are immaterial for present purposes.

The Plaintiff swore an affidavit on the 11th of March 1993 in support of his application for the injunction in which he alleged the following:

The Defendant is a recently retired solicitor and the Plaintiff's step-father. He is more than 80 years old.

On the 17th of February 1989 the Plaintiff entered into an Agreement with the Defendant to purchase his private practice, a copy of which was annexed to the affidavit and to which I shall refer in due course.

The Plaintiff alleges that he duly performed all his obligations under the Agreement including the payment of the sum of $15,000.00 in or about February 1989.

By virtue of Clause 4 of the Agreement the Plaintiff claims that he and his family are entitled to reside in and occupy the bottom flat of the Defendant's building situate at James Madhavan Street, Labasa, free of rental as long as he wished provided that he paid annual Town Rates and rentals to the Director of Lands. The Plaintiff annexed a copy of the Crown Lease No. 106639 to his affidavit.

He then deposed that he has been paying the Town Rates and rentals and that these had been paid up to the 31st of December 1992. He further stated that the Director of Lands has consented to the Agreement.

The affidavit then goes on to allege that the relationship between the Defendant and the Plaintiff and his family rapidly deteriorated since the death of the Plaintiff's mother in February 1991. He then alleges that on or about 30th of November 1992 the Defendant asked the Plaintiff for a loan of $6,000.00 but that because of other financial commitments the Plaintiff could not lend this money to the Defendant.

The Plaintiff then alleges that as a result of his refusal to make the loan the Defendant became very abusive and violent towards the Plaintiff and began writing a series of abusive letters to him as well as to professional friends and colleagues in Labasa. Various other allegations are made against the Defendant but are immaterial here but the Plaintiff then alleges in his affidavit on the 9th of March 1993 the Defendant instructed the Fiji Electricity Authority to disconnect the electricity to the Plaintiff's flat although the Plaintiff had been regularly paying for such electricity for both the up-stairs and down-stairs flats. This, coupled with an allegation that the Defendant caused the lock on the bottom flat to be changed thereby denying the Plaintiff entry, caused the Plaintiff to seek relief from this Court.

In an affidavit sworn on the 18th of March 1993 the Defendant denies the allegations made by the Plaintiff. Much of this and the subsequent affidavits filed by the parties contain a great deal of hearsay and matters clearly irrelevant to the present proceedings. Indeed an application was made on the 6th of May 1993 by the Plaintiff to have various parts of the Defendant's affidavits struck out on the grounds that they contain matters which are scandalous, irrelevant or otherwise oppressive.

The latter application has not yet been heard but was adjourned from time to time in the hope that the parties might be able to resolve their differences amicably without further recourse to this Court. Regrettably that has not occurred and presently before me there is an application by the Defendant dated the 7th of September 1993 to have the Court injunction of the 11th of March 1993 dissolved. I shall refer to the Defendant's motion shortly but before doing so I should refer to certain allegations made by the Defendant against the Plaintiff which I regard as irrelevant to the issues herein.

The Defendant alleges that in March 1993 he was 79 years old and that the Plaintiff is not his step-son although the Defendant had brought him up at the request of his father from the age of 11 years. Here I note that in a Copy Will alleged to be that of the Defendant made on the 29th of May 1992 in Australia. which has not been denied by the Defendant and which is exhibited to a further affidavit of the Plaintiff in reply dated the 31st of March 1993, the Defendant refers to the Plaintiff as his son. In my view the exact nature of the relationship between the Plaintiff and the Defendant is immaterial because I have no doubt that until the events of November 1992 the Plaintiff and the Defendant regarded themselves as closely related and that probably the Plaintiff was entitled to regard the Defendant as his step-father.

The Defendant in his affidavit of the 18th of March 1993 denies most of the allegations made against him by the Plaintiff and I do not propose to refer to most of these because they do not assist me in deciding whether or not I should dissolve the injunction of 11th March 1993.

The Defendant denies that the Plaintiff paid rates to the Labasa Town Council when they were due in January 1993 or that he paid Town Rates or rental to the Director of Lands for the year 1993. He also alleges, and this is not denied by the Plaintiff, that although the Agreement between the Plaintiff and the Defendant was executed on the 11th of February 1989 no prior consent was obtained from the Director of Lands and the Director of Lands did not give his consent, within the Defendant's knowledge, until the 25th of March 1991. The Defendant then makes various allegations about the Plaintiff's conduct which I need not state in any detail. Suffice it to say that whatever may be the truth or otherwise of these allegations there can be no doubt that at the latest by December 1992 the former harmonious relationship between the Plaintiff and the Defendant had soured most noticeably.

In a later affidavit sworn on the 4th of September 1993 in support of his Application to dissolve the injunction the Defendant alleges that the Plaintiff has acquired a dwelling property next door to the Defendant's premises. He alleges that the Plaintiff bought this property knowing very well that he has no legal right to occupy the Defendant's property and that consequently for this reason alone the injunction should be dissolved, the Plaintiff's remedy if any being in damages.

In the last affidavit the Defendant also alleges that the Agreement was prepared by the Plaintiff and that the Defendant agreed that he was to occupy the ground floor as a member of a joint family by way of family arrangement so long as he and others lived quietly and peacefully therein. He also deposes that the Agreement is null and void because it did not create any proprietary right in favour of the Plaintiff.

The Defendant annexes to this affidavit a copy of Caveat No. 306973 purportedly signed by the Plaintiff on the 26th of August 1991 and claiming an equitable interest under a Sale and Purchase Agreement dated 17th of February 1989 in the land of which the Defendant is Crown Lessee.

The Defendant states that this is further evidence of non-disclosure of material facts by the Plaintiff in that the Plaintiff did not disclose to the Court when applying for his ex-parte injunction that he had lodged this Caveat. The Defendant also alleges that the Plaintiff was never a purchaser of the building or any part thereof and that the only interest the Plaintiff has is that of a licensee.

No request has been made by the Plaintiff for leave to reply to the Defendant's affidavit of the 4th of September 1993 or a later affidavit sworn on the 6th of September which in my view does not advance the Defendant's case any further for reasons which will appear later.

On the 27th of September 1993 Mr. M. Patel appeared for the Plaintiff and made no application to file any answering affidavit in reply to the last two of the Defendant but undertook to file and serve written submissions by the 18th of October 1993. Mr. Patel stated that the only issue the Court had to decide was the legality of the purported grant to the Plaintiff.

Recently when I was about to prepare this judgment the Court Registry at my request informed the Defendant's solicitors that the Plaintiff had not filed any submissions and was told that the Defendant would not consent to any extension of time. There had apparently been some suggestion by the Plaintiff to the Court office that the matter had been resolved between the parties but the Defendant's solicitors denied this and have asked me to proceed with my judgment without further delay.

I have received full written submissions from counsel for the Defendant but still none from the Plaintiff.

The first question I have to consider is whether there has been full and frank disclosure of material facts by the Plaintiff to warrant the granting of the interim injunction in the first place. If there has not been, then, all other considerations aside, the injunction must be dissolved.

In Judicial Review No. 16 of 1991 Sunbeam Transport Limited v. Vatukoula Express in a judgment on 29th November 1991 I quoted with approval the remarks of T.A. Gresson J. in United Peoples' Organisation (World Wide) Inc. v. Rakino Farms Limited (No.1) (1964) N.Z.L.R. 737 at p.738 who said:

"It is well settled that it is the duty of a solicitor certifying to an ex parte application to make the fullest disclosure to the Court of all matters relevant to such an application, whether or not such solicitor considered any such matter unimportant. He has a duty to disclose to the Court the defence to the action if he knows it, and the facts on which it is based, so that the Court can judge for itself whether they are material or not. Failure to do so may in itself furnish ground for dissolving the injunction, W v. Public Trustee (1935) N.Z.L.R. s.23; (1935) G.L.R. 163; Escott v. Thomas (1934) N.Z.L.R. s. 175; (1934) G.L.. 544; Simpson v. Murphy (1947) G.L.R. 411.

If on a motion to dissolve an ex parte interim injunction it appears that the plaintiff has misstated his case, either by misrepresentation or by the suppression of material facts, so that an injunction has been obtained which might have been refused if all the facts had been stated, that is itself is a sufficient ground for dissolving the injunction."

A similar statement of the law had been made by Kay J. as he then was, in Republic of Peru v. Dreyfus Bros. & Co., 55 L.T.R. 802 at 803 who said:

"I have always maintained, and I think it most important to maintain most strictly, the rule that, in ex parte applications to this Court, the utmost good faith must be observed. If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, as to impress upon all persons who are suitors in this Court the importance of dealing in good faith with the Court when ex parte applications are made."

In this case the Defendant's allegations are that the Plaintiff failed to disclose that the consent of the Director of Lands had not been obtained before the Agreement of the 17th of February 1989 was entered into. Section 13(1) of the Crown Lands Act Cap.132 reads thus:

"13. (1) Whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisions of the Crown Lands Act"

(hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained, nor except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, nor, without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease.

Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void."

In the instant case Crown Lease 106639 reads in part "and provided further and it is expressly declared that this lease is a protected lease under the provision of the Crown Lease Ordinance."

Clauses 4 and 5 of the Agreement of 17th of February 1989 read as follows:

"(4) That the purchaser and his family shall be entitled to reside in and occupy the bottom flat of the Vendor's Building situate at James Madhavan Street, Labasa free of rentals as long as they wish and upon paying annual town rates and the rentals to the Director of Lands for the said Crown Land.

(5) That the Vendor's Co-habitee KALA WATI and my step son DHARMENDRA KUMAR KOHLI and his family shall be entitled to use and occupy and enjoy the top flat of the vendor's property situate in James Madhavan Street, Labasa free of rents during their life time."

It will be noted that Section 13 of the Crown Lands Act requires the written consent of the Director of Lands to be first had and obtained and as was held by Madhoji J. in Action No. 117 of 1980 Kumar Gurdial Singh v. Mehar Singh and Pritam Singh any alienation of Crown Land without the prior written consent of the Director of Lands first being obtained is null and void and unlawful.

In his judgment Madhoji J. referred to and relied among other cases on Chalmers v. Pardoe (1953) 3 All E.R. 552. That was a case in which by "friendly arrangement" with the owner of Native Leasehold land the Appellant built a house on part of the land and entered into possession. No consent of the Native Land Trust Board was obtained. The Privy Council regarded the transaction as a lease but even regarding it as a licence to occupy land coupled with possession, their Lordships held that it was a "dealing" within the meaning of Section 12 of the Native Land Ordinance.

In my judgment similar considerations apply to the present case and it is of no help to the Plaintiff to claim as he does in paragraph 6 of his affidavit of 31st March 1993 that the Agreement was forwarded to the Director of Lands for consent and that the Defendant's knowledge is not a prerequisite for the granting of consent. I agree, but in my judgment the fact that this consent appears not to have been obtained until more than two years after the Agreement was signed is fatal to the Plaintiff's claim to have the injunction continued. Furthermore there is no evidence that the Plaintiff obtained the prior written consent of the Director of Lands to the institution of these proceedings. In my judgment he was duty bound to inform the Court of these two matters in his affidavit in support of his application for the injunction and he did not do so. It is true that in Chalmers v. Pardoe the Privy Council held there had been full performance before any consent. In this case I am satisfied there has been substantial if not full performance and therefore the alleged consent of the Director of Lands is immaterial.

There is a further matter of the Plaintiff having allegedly bought premises next door to those to the subject of the Agreement. This was also not disclosed by the Plaintiff as in my view it should have been because it bears on the question of whether the Plaintiff could be said to have suffered irreparable damage as he claims in paragraph 21 of his first affidavit. So far he has made no attempt to deny this allegation by the Defendant and I am therefore of the opinion that had the Plaintiff made full disclosure, which I find he has not, I probably would never have granted the injunction.

Counsel for the Defendant cites numerous cases dealing with the question of whether the present was merely a family arrangement and as such not legally enforceable. I have read these cases but, as these are still interlocutory proceedings, I find it unnecessary and in any event unwise to make any findings on this question in the absence of further evidence, particularly after cross-examination of the parties.

For the reasons which I have given I hold that the injunction of the 11th of March 1993 should now be dissolved. However since the illegality of the Agreement in so far as it relates to the Plaintiff's occupation of the bottom flat has obviously been well-known to the Defendant, probably from the time the Agreement was entered into, I consider it would only be fair to the Plaintiff that he be given a stay of 14 days from the date of this judgment to vacate the premises if he so wishes.

The orders of the Court therefore are:

(1) That the injunction of the 11th of March 1993 is hereby dissolved.

(2) There is to be a stay of execution on this order until the 25th of April 1994.

(3) The Plaintiff is to pay the Defendant's costs to be taxed if not agreed.

JOHN E. BYRNE
J U D G E

HBJ0141D.93S