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Singh v Director of Land and Survey [2006] FJHC 72; HBC117.2006 (14 September 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 117 OF 2006

NO. 186 OF 2006

BETWEEN

MALKIT SINGH
Plaintiff

AND

THE DIRECTOR OF LAND AND SURVEY
1st Defendant

AND

THE ATTORNEY GENERAL OF FIJI
2nd Defendant

AND

GO FORWARD INVESTMENT LIMITED
3rd Defendant

Appearances: Messrs Suresh Maharaj & Associates for the plaintiff
Office of the Attorney General for 1st & 2nd defendants
Mr. Anu Patel for Messrs Maharaj Chandra & Associates for 3rd defendant

Hearing: 5 September 2006
Decision: 14 September 2006

JUDGMENT

[1] The summons which is before me asks for the following orders on behalf of the plaintiff:

(i) That there be an injunctive order ordering the 3rd defendant by itself or by its servants, agents, employees, directors and shareholders or nominees to forthwith move out and remove themselves from the said land after having entered unlawfully on 14th August, 2006 at 10.00 am

(ii) That there be an injunctive order of this Court restraining the 3rd defendant by itself or by its servants, agents, employees, directors and shareholders or nominees from continuing to do bulldozing works on the said land and or causing damage or carrying out any development work on the said land until the final determination of this action

(iii) That there be an injunctive order of this Court restraining the 3rd defendant by itself or by its servants, agents, employees, directors and shareholders or nominees from entering into the said land in future and carrying out any bulldozing or development works and or causing damage to the said land until the final determination of this action

(iv) That copies of the injunctive orders be posted on a sign post and affixed at the entrance of the said land.

[2] Two earlier applications filed by the plaintiff for injunctive relief are pending. Learned counsel for the plaintiff, Mr. Maharaj confined his submissions to the 3rd application filed on 15 August 2006.

[3] The application was strongly opposed. The 1st and 2nd defendants rely on the affidavits of Mr. Babu Lal and Adivuna Drikalu. The 3rd defendant relies on an affidavit by its Managing Director filed on 28 August 2006.

Consideration of application

[4] An interim injunction provides relief that is both temporary and discretionary. Before granting such relief, the Court is required to carefully balance or weigh the needs of a plaintiff against the needs of a defendant. The starting point for the consideration as to whether the order sought should be maintained or granted are the principles expressed in American Cyanamid –v- Ethicon Limited [1975] UKHL 1; [1975] A.C. 396. At pages 406 & 407 of the judgment Lord Diplock expresses the principles as follows:

"The object of the interlocutory injunction is to protect the plaintiff against the injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty will resolve in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty will resolve in the defendant’s favour at the trial. The Court must weigh one need against the other and determine where "the balance of convenience lies."

On page 407 Lord Diplock said:-

"It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of interlocutory injunction was that "it aided the court in doing that which was its great object viz. abstaining from expressing any opinion upon the merits of the case until the hearing": Wakefield v. Duke of Buccleugh (1865) 12 L.T. 628, 629. So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought."

It is upon this basis that I consider the application before me.

[5] I had informed Mr. Maharaj when I set down the application for inter party hearing, having declined to hear the application on an ex parte basis on the initial returnable date of the summons, that the plaintiffs undertaking as to damages was inadequate. It was my view that the plaintiff had placed insufficient material before the court to fortify the undertaking given. I had expected the plaintiff to rectify this before I heard the application inter party. That has not been done.

[6] The plaintiffs undertaking in damages is contained in paragraphs 10 and 11 of Loreen Ranita Singh’s affidavit of sworn on 13 July 2006. On behalf of the plaintiff, Mrs. Singh avers that:

(i) I give the usual undertaking as to damages to the defendant should they suffer any loss by reason of orders prayed for herein being granted and it appears to this Honourable Court at the determination of this action that the orders ought not to have been made and that the defendant have suffered loss and damages as a result of the same being granted.

(ii) the plaintiff has substantial asset which includes a 4 bedroom house together with all amenities, valued at about $120,000.00, standing sugar cane of about 250 tonnes, monies in Bank and is in a position to meet for any orders for damages this Honourable Court may order.

[7] The Fiji Court of Appeal in Natural Waters of Viti Limited –v- Crystal Clear Mineral Water (Fiji) Ltd (Civil Appeal Nos. ABU0011 & ABU 0011A of 2004S) reinforced the principle that sufficient material should be placed before the Court to fortify the undertaking given. At page 12 of the judgment, their Lordships held that:

"Applicants for interim injunction who offer an undertaking as to damages should always proffer sufficient evidence of their financial pornition. The Court needs this information in order to assess the balance of convenience and whether damages would be an adequate remedy".

[8] Mrs. Singh agrees to be liable for any damage suffered by the defendants because of the operation of the injunction if the plaintiff fails at the trial. However her mere assertion unsupported by any credible evidence of the plaintiff owning a substantial asset i.e. a 4 bedroom house valued at $120, 000.00 is insufficient. Asserting that the plaintiff has "monies in Bank and is in a position to meet for any orders for damages" is wholly inadequate. Mr. Maharaj has not convinced me that in the circumstances of this case I should exercise my discretion to dispense with an undertaking in damages. I am satisfied on the evidence before me that the 3rd defendant is likely to incur substantial losses if I were to grant the injunctive relief sought preventing it from exercising its legal rights under the registered lease. Clearly in my view it could not be adequately compensated under the plaintiffs undertaking in damages if this case was eventually decided in the defendants favour at the trial. Notwithstanding that I am satisfied that there are serious issues to be tried (even though a statement of claim has not been filed and an originating summons is not the proper procedural vehicle for the obtaining of an injunction) and that damages may not be an adequate remedy, I have concluded in the absence of a sufficient undertaking in damages that the balance of convenience lies in refusing the interlocutory relief that is sought.

[9] The plaintiffs application for the injunctive orders fails because the undertaking as to damages is inadequate. The plaintiff has failed to proffer sufficient evidence of his financial position fortifying the undertaking given.

Order

i) Summons dated 15 August 2006 dismissed.

ii) Plaintiff to pay defendants costs of the application. $450.00 to 1st and 2nd defendants and $450.00 to 3rd defendant.

Gwen Phillips
JUDGE

At Lautoka
14 September 2006