IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 0535 OF 2000

BETWEEN:

MARY MARAIA PETERSON HEWITT
AND ARTHUR LORD
Plaintiffs

AND

HABIB BANK LIMITED AND JOHN
LOW
Defendants

S.R. Valenitabua for the Plaintiffs
S. Lateef for the First Defendant

Date of Hearing: 12th February 2001
Date of Ruling: 2nd July 2001

RULING

The Court has before it two Motions, the first on behalf of the Plaintiffs dated 22nd November 2000 and the second on behalf of the First Defendant dated 17th January 2001. The first Notice of Motion seeks various orders requiring the First Defendant to provide statements of accounts of two Fixed Deposit Bank Accounts in the name of the First Plaintiff and of the Bank Account or Accounts with the First Defendant in which an overdraft facility of $200,000.00 or more was granted to a Company called the Charcoal Chicken Limited. 

The other orders sought are: 

1)	That the Second Defendant be suspended and restrained from any involvement with Charcoal Chicken Limited until further order of this Court.

2)	That the First and Second Plaintiffs administer or conduct the operations of Charcoal Chicken Limited until further order of this Court.

3)	That the legal or equitable effects of all security documents signed by the First Plaintiff be suspended until final determination of this Action.

4)	That the First and Second Defendants be restrained from doing or omitting to do any thing which can or will interfere with the transfer to another Bank of the sums of $46,000.00 and $60,000.00 plus interest accrued therefrom now held in fixed deposit accounts at the First Defendant’s bank in Suva.

On the 17th of August 1999 the Charcoal Chicken Limited gave the First Defendant Bills of Sale over the following motor vehicles:

5)	Mitsubishi Canter Registration No. CR708; and

6)	Isuzu Station Wagon Registration No. DD402.

Reading the affidavits on behalf of the parties it is clear that there are various triable issues and questions of law and fact which will call for eventual determination by the Court. Among these are whether the First-named Plaintiff signed documents knowing that by so doing her personal properties were to be used as securities for moneys advanced by the First Defendant to the Charcoal Chicken Limited.

Another question is whether the Power of Attorney No. 21730 was valid authority to the Second Defendant to execute documents authorising the advancement of moneys by the First Defendant to the Company on behalf of the Plaintiff. The Plaintiff alleges that the Power of Attorney was purely for the management of the First Plaintiff’s property and collection of rent therefrom while she was overseas but the authority given to the Second Defendant is on its face not so limited for example paragraphs 6, 7, 8 and 10.

I accept that an interlocutory injunction will not ordinarily be granted to interfere with bankers’ irrevocable credits unless a sufficiently grave cause is shown - Discount Records Ltd. v. Barclays Bank Ltd. (1975) 1 WLR 315. This again is a question of fact or even mixed fact and law to be decided at the trial.

The Plaintiff relies on the principle of Non Est Factum when she alleges she did not know the nature of the document she signed in the office of the solicitors Khan & Co. The First Defendant denies this and relies on the decision of Fatiaki J. in National Bank of Fiji v. Sultan Ali HBC No. 80 of 1996 unreported judgment of 10th June 1997 who dismissed a claim that the guarantee in question was covered by this rule on the ground that the Defendant admitted he signed it knowing what he was doing. No such admission is made by the First Plaintiff in this case but again this is a triable issue.

The principles governing the granting of injunctions are well settled and were summarised in American Cyanamid Co. v. Ethicon (1975) 1 ALL E.R. 504. I do not propose to restate them here except for one most important principle stated by Lord Diplock at p.510 of his judgment that:

“If damages in the measure recoverable at common law would be adequate remedy and the Defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the Plaintiff’s claim appeared to be at that stage.” (Our emphasis) 	

It is also worth noting the statement of Sankey L.J. in Lloyds Bank Ltd. v. Chatered Bank of India, Australia and China (1929) 1 K.B. 40 at p.73:

“In my view, a bank cannot be held liable for negligence merely because they have not subjected an account to a microscopic examination. It is not to be expected that the officials of banks should also be amateur detectives.”

During argument the First Plaintiff conceded through her counsel that the sum of $106,000,000.00 referred to in paragraphs 1 (a) and (b) of the Plaintiff’s Notice of Motion should remain with the First Defendant and be considered as a payment into Court. On the material before me I am satisfied that I should maintain the status quo as far as possible and accordingly make the orders sought by the Plaintiffs in paragraphs1 (c), (2), (3) and (4) of the Plaintiffs’ Notice of Motion.

The concession made by the Plaintiffs as to the order sought in paragraph 5 renders it unnecessary for me to make any order in that paragraph.

As to the First Defendant’s Summons of the 17th of January 2001 I am satisfied that the orders sought in that Notice of Motion should be granted and that the two motor vehicles in question be released to the First Defendant. If the Plaintiffs should suffer any loss thereby I am satisfied the First Defendant will be able to compensate them in damages. 

Orders are therefore made as stated. The pleadings will now take their normal course. Costs will be in the cause.

JOHN E. BYRNE
JUDGE