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Chandar v iTaukei Land Trust Board [2015] FJHC 561; HBC120.2015 (28 July 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. HBC 120 of 2015


BETWEEN:


RAMANA CHANDAR
of Hamilton, New Zealand and Saweni, Lautoka, Property Manager.
PLAINTIFF


AND:


I-TAUKEI LAND TRUST BOARD
a body corporate duly constituted under the iTaukei Land Trust Act Cap. 134
1ST DEFENDANT


AND:


MUSTAQ ALI of Saweni, Lautoka, Team Leader.
2ND DEFENDANT


Appearances
Ms Q. Vakanavanua for Plaintiff
No appearancefor Defendants


Date of Hearing: 28.7.2015
Date of Ruling : 28.7.2015


RULING


  1. This is an ex parte notice of motion for the grant of certain injunctive orders.Today-28 July 2015, Plaintiff filed a notice of motion in conjunction with an affidavit sworn by Ramana Chandar (plaintiff) on 24 July 2015 ('the application'). The application seeks the following orders:
  2. The application is made pursuant to O.29 of the High Court Rules 1988 ('HCR') which provides as follows:

1.-(1) An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party's writ, originating summons, counterclaim 60;third party no60;notice, as&#he ca60;may&#may be.<

(2) >(2) Where the applicant isplainand the case is one of urgency such application may be made ex parte on affidavitdavit but, but, except as aforesaid, such application must be&made&by mo#1on&#1on or su60;summons.


(3) The plaintiff may not make such an application before the of tit orinating summons by which the cause or matter is to be begun except wher where thee the case case is one of urgency, and in that case the injunction applied for may be granted on terms providing for the issue of the writ or summons and such other terms, if any, as the Court thinks fit.


  1. The plaintiff has issued a writ against the defendant on 28 July 2015 seeking relief inter alia: an order that the 1st defendant to rectify the surrendered native lease, rescission of the surrendered lease and special damages in the sum of $15,725.00 and general damages.
  2. Precisely, the plaintiff's allegation is that he went to the 1st defendant's office (iTLTB) and advised them of his intention of surrendering 1.100m2 only to the 2nd defendant, limited only to the area the 2nd defendant is purchasing, to which the employee of the 1st defendant advised him to sign a surrender form. He also wrote a letter to the Manager Native Land of his intention of granting the 2nd defendant only 1.100m2 of area. Instead, the 1st defendant granted more than the area of land he had intended to surrender. The plaintiff alleges fraud on the part of the 1st defendant. All these incidents, according to plaintiff, occurred in 2012.
  3. All the alleged incidents occurred in 2012. The plaintiff in his affidavit states that the 2nd defendant has erected blocks blocking the other tenants from the enjoyment and use of the driveway, making them look for their routes to reach their homes. There is no evidence before the court to show that the 2nd defendant has obstructed the plaintiff's driveway. I do not find real urgency in the matter as all allegations which the plaintiff makes occurred in 2012. The Plaintiff thus fails to satisfy me that there is real urgency in the matter.
  4. On the facts of the case, the balance of convenience cannot favour the grant of an ex parte injunction unless the case is one of great urgency. If the applicant has delayed with knowledge of the facts before coming to court an injunction will be refused, even where the defendant would not be greatly inconvenienced by the restrain: promptness is essential, see Bates v Lord Hailsham and others [1972] 1 WLR 1373.
  5. I now return to the issue of damages. In his writ the plaintiff claims not only general damages but also special damages in the sum of $15,725.00. Hence it appears that damages would be appropriate remedy in this case. If the plaintiff can be fully compensated by an award of damages, no injunction will be granted. In particular, where the wrongdoing has ceased and there is no likelihood of its recurring, an injunction will generally be refused, see Proctor v Bayley [1889] UKLawRpCh 138; (1889) 42 Ch D 390.
  6. In the matter at hand, the alleged wrongdoing has ceased and there is no evidence that there is likelihood of its recurring.
  7. Furthermore, there is no proper undertaking as to damage. The plaintiff cannot rely on the disputed property for undertaking as to damages.
  8. For these reasons. I decline to issue ex parte injunctive orders sought.

M H MohamedAjmeer
JUDGE


At Lautoka
28.7.15

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