Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Narayan v Singh [2008] FJHC 273; HBC228.2007 (2 February 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. 228 OF 2007

BETWEEN

SHIU NARAYAN f/n Jai Narayan,
RAJENDRA PRASAD f/n Ram Prasad and
MANOJ SHARMA f/n Sitla Prasad
Plaintiffs

AND

JIWAN SINGH

f/n Makardhuj Singh
1st Defendant

AND

ARUN KUMAR, POONAN SADHU,

RAGUWAN and RAM PRATAP
2nd Defendant

Appearances: Samuel K. Ram & Haroon A. Shah for the plaintiffs
for the defendant

Date of Hearing: 15 and 22 February 2008
Date of Decision: 2 February 2008

EX-TEMPORE RULING

[1] On 20 July 2007 the plaintiffs were granted an ex-parte injunction as follows:

i) that an injunction be granted restraining the first defendant and the second defendants whether by themselves or their servants, agents, workmen or howsoever or otherwise from calling, convening, conducting, concluding or participating in any Annual General Meeting of the Vatulaulau Sanatan Dharm School on 22nd July 2007 or on any other or subsequent date unless so ordered or authorized by the Court until the 31st day of July 2007

ii) that an order that the first defendant and the second defendants whether by themselves or their servants, agents, workmen or howsoever or otherwise prepare and file in Court within 14 days of the receipt of this order an audited set of the financial and management accounts of the Vatulaulau Sanatan Dharm School from the 24th day of January 2007 till the receipt of this order until the 31st day of July 2007

iii) that an order that the first defendant and the second defendants whether by themselves or their servants, agents, workmen or howsoever or otherwise prepare and file in Court monthly audited set of the financial and management accounts of the Vatulaulau Sanatan Dharm School from and including August 2007 and onwards

iv) that these orders are made on an interim basis until the 31st day of July 2007

v) that this matter is adjourned to 31st day of July 2007 for mention inter-partes.

[2] On 15 February 2008 the matter was listed for inter parties hearing. I informed plaintiffs counsel interalia that the submissions filed did not convince me that the injunction should be maintained and that further submissions were to be filed and adjourned the hearing before me this morning. Mr. Samat who appeared for the plaintiff on limited instructions was obviously unprepared and had not been properly instructed.

Should the injunction be maintained

[3] 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.

The fundamental requirements might be summarized as:-

(i) Is there a serious question to be tried?

(ii) Are damages an adequate remedy?

(iii) Where does the balance of convenience lie?

Serious issue to be tried

[4] For reasons stated above it is not for this court in an application for interim injunctive relief or in maintaining it, to carry out a trial on merits of the dispute. It suffices for the Court to be satisfied that there is in fact a serious question to be tried. I have not been convinced that there is a serious question to be tried. This is an action akin to that involving a ‘master and servant’ relationship between the parties. The restraint order against the holding of an Annual General Meeting is a guise to defer indefinitely the appointment of a new school manager. I apply the principles outlined in Suva City Council –v- Joeli Kalou[1] wherein Justice Fatiaki, as he then was said:

"The plaintiff’s relationship with the Association is one of master and servant. It is well established law that a contract for personal services cannot be enforced by an order for specific performance. In Vine –v- National Dock Labour Board [1957] 2WLR 106 Lord Keith said at p.118:

"Normally and apart from the intervention of a statute there never would be a nullity in terminating an ordinary contract of master and servant. Dismissal might be in breach of contract and so unlawful but could only sound in damages".

[my underlining]

In my view it is extremely unlikely that the plaintiffs will succeed in the claim for a permanent injunction at trial. Their remedy is only sound in damages.

Are damages an adequate remedy

[5] Again I have not been convinced that damages would not be an adequate remedy. In my view damages clearly would be an adequate remedy.

Material non-disclosure

[6] It is trite law that when applying ex-parte for injunctive relief, the plaintiff has a duty to make full and frank disclosure. The following principles apply:

"If on hearing of a motion by a plaintiff for an injunction, or, in the alternative, to continue an interim injunction already obtained ex-parte, it appears that the interim order was irregularly obtained by suppression of facts, the Court may discharge the ex-parte order without any cross notice of motion for that purpose by the defendant; though it may grant the injunction asked for (Boyce v. Gill (1891) 64 L.T. 824)"[2]

[7] Here it is patently obvious from the affidavit in reply that this obligation was not met. The ex-parte order was irregularly obtained by a suppression of facts. I refer to paragraph 7 (ix) (x) (xi) and (xiii) of the affidavit of Mr. Jiwan Singh. This pertinent information was not brought to the court’s attention when the ex-parte order was applied for. The plaintiff also misled court by including Mr Sharma as a plaintiff when he had not consented to proceedings being issued in his name.

[8] The ex-parte order is dissolved forthwith with costs to defendants assessed in sum of $1000.00 to be paid 14 days.

[9] Call 26 March 2008 before Master for directions. This ex-temporary judgment will be typed and available for counsel to collect on Monday.

Gwen Phillips
JUDGE

At Lautoka
22 February 2008

^[1] (Civil Action No. 121 of 1992) at page. 2
^[2] The Supreme Court Practice 1995, Notes at para 29/1/17.