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Chaudhary v Fantasy Company of Fiji Ltd [2006] FJHC 66; HBC111.2003 (25 August 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 111 OF 2003

NO. 166 OF 2006

BETWEEN

UMENDRA JIT CHAUDHARY, JAI PRASAD & EDWARD HENRY THOMPSON
Plaintiffs

AND

THE FANTASY COMPANY OF FIJI LIMITED
First Defendant

AND

ABBAS ALI, SAIYAD HUSSEIN, MASATOSHI KAYANO, FUMIYO KAYANO & RATU APISAI DERE NAEVO
2nd Defendants

Appearances: Janend Sharma Lawyers for the 3rd named plaintiff
Messrs Suresh Maharaj & Associates for the 1st & 2nd Defendants

Hearing: 7 August 2006
Decision: 25 August 2006

Judgment

[1] Before me is a motion by the 1st and 2nd defendants for an injunction restraining the 2nd named plaintiff from allowing and/or permitting any persons or members of the Salvation Army from entering, remaining and occupying the residential dwelling situated on Lot 19 SO 3596 contained in Crown Lease No. 13523 (the property).

[2] The application is strongly opposed.

[3] I have declined the relief sought. I have accepted the evidence that the person (s) in occupation of the property are Mr. Thompson’s caretakers. He has not vacated the property and while he is overseas temporarily, he has installed caretakers. An earlier application to evict Mr. Thompson was dismissed – Coventry J found that he had shown an arguable case to remain in occupation. If I were to grant the order sought in this application my order would have the same effect of permitting the 1st and 2nd defendants to obtain vacant possession of the property when their earlier application for that relief had been declined.

[4] The applicants have also not sufficiently established the alleged nuisance relied on. I have also upheld Mr. Sharma’s submission that the order sought would be ineffective and difficult to enforce if granted.

[5] The substantive hearing of the action which has had a long and checkered history already is set down for 26 and 27 September 2006. Mr. Thompson’s alleged proprietary interest in the property is also an issue to be determined. The status quo is to remain until the Court determines the substantive action.

[6] Mr. Sharma is put on notice that if he is double-booked on the trial dates of this action he should take steps now, if he has not already done so, to ensure that Mr. Thompson has representation on 26 and 27 September 2006. He is to follow up his request for a transcript of the order fixing the action for trial with the Deputy Registrar.

[7] The motion filed by the 1st and 2nd defendants is dismissed with costs to Mr. Thompson assessed in the sum of $500.00.

Gwen Phillips
JUDGE

At Lautoka
25 August 2006