IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
CIVIL CASE NO. HBC 54 OF 2016
(SUVA CASE NO. HBC 261 OF 2015)

BETWEEN:			EMMETT KENT MORGAN
PLAINTIFF

AND:				RAVINDRA KUMAR LAL

1ST DEFENDANT

ITAUKEI LAND TRUST BOARD

2ND DEFENDANT

Appearance:	Plaintiff 	-	Mr. H. Robinson for the Plaintiff
		Defendants	- 	Mr. S. Raramasi for the 1st Defendant
					Mr. K. Ratule for the 2nd Defendant

Date of Hearing 	:	13th February, 2019
Date of Judgment 	:	15th February, 2019

JUDGMENT

Introduction
[1]	The Plaintiff obtained ex parte injunction against the Defendant inter alia restraining the use 	of his bank account number 05497494 with ANZ. The cause of action against the 1st 	Defendant was 	conversion of his money specifically remitted for 2nd Defendant (which was 	removed by order dated 31.8.2016). The Plaintiff is a foreign citizen and the ex parte 	injunction was set aside on 31.8.2016 on the basis of noncompliance of certain statutory 	requirements. On the date of trial Plaintiff sought an adjournment on the basis that he was 	in China and Mayanmar for business trip, and other witnesses for Plaintiff had not turned up 	for trial. The application for adjournment was declined. At the trial Plaintiff did not give 	evidence or call any witnesses to prove his claims and accordingly it was struck off. The 1st 	Defendant had 	counterclaimed against the Plaintiff regarding the damages he incurred 	during the pendency of the ex parte injunction which was dissolved subsequently. After 	dismissing the Plaintiff’s claims the Defendant was given an opportunity to lead evidence to 	prove the counter claim for damages and only the Plaintiff gave evidence. The Plaintiff did 	not cross-examine the Defendant’s evidence. Parties were given the opportunity of making 	oral submissions and or written submissions. The Plaintiff’s counsel made an oral submission 	and said 1st Defendant had not proved its damage as no documentary evidence was 	produced. 1st Defendant filed a written submission on 14.2.2019
Facts
[2]	On 28.7.2015 the Plaintiff made an ex parte motion seeking following injunctive orders
	“Applicants filed Notice of Ex-parte Motion seeking following Orders:
1.	For an order restraining the ITaukei Land Trust Board from issuing a lease over the land known as Naravuka S/D Stage 2 in the Tikina of Wailevu West, Province of Cakaudrove containing an area of 65.2724 Hectares (the “land”) to the first Defendant until further orders of this Court.

2.	For an injunction restraining the First Defendant by himself or through his servants or agents from killing, selling or removing or in any way dealing with any sheep currently on the said land until further orders of this Court.

3.	For an injunction restraining the First Defendant by himself or through his servants or agents from removing any machinery, buildings, building materials, fencing or other improvements from the said land until further orders of this Court.

4.	For  an  order prohibiting the First Defendant by himself or through his servants and or agents from setting foot on the said land.

5.	For  an  order  that  the  First  Plaintiff  take  over  and  manage the farm on the said land until further orders of this Court.

6.	For  an  order  that  the  ANZ  Bank,  freezing   the  Plaintiff’s  Bank Account  number  05497494  at  the  Savusavu  Branch of the ANZ 	Bank until further orders of this Court.

7.	For  an  order  that  the  ANZ Bank provide this Honourable Court 	with a Bank statement of the First Defendant’s bank account No. 	05497494 at  the  Savusavu  Branch  of  the  ANZ  Bank  from 26 	February 2013 until now.

8.	For an order that  the  First  Defendant provide to the Court within 3 days an affidavit listing all his assets.

9.	For   an  order  that   the   First  Defendant  be  restrained   from transferring, selling, disposing,  destroying  or  otherwise  dealing  	with any  asset  bought  with  funds sent to him  by  the  Plaintiff directly or through Balaga Bay Farms (Fiji) Ltd.”(emphasis added)

 [3]	 On 30.7.2015 a judge had granted ‘order in terms of paragraphs 1,2,3,6,7,8 and 9’ and also 	ordered that the documents to be served to the Defendants .
[4]	 The said orders made ex parte were vacated on 31.8.2016 after inter partes hearing of the 	injunction and following orders were made;
		” i) 	The Second Plaintiff’s name be removed from this proceedings;
		(ii) 	The interim Orders granted on 30 July 2015, be discharged;
	(iii) 	The Notice of Motion dated and filed on 28 July 2015, is dismissed and struck 		out;
	(iv) 	The First Plaintiff pay First  Defendants/First  Respondents  costs  assessed  in 		the sum of $2,000.00 within twenty-one (21) days of this Ruling;
	(v) 	There  be  no  Order  for  costs  in  favour  of  the  Second  Defendant/Second 		Respondent.
	(vi)	…….”

[5]	In the said judgment it was held; 
		‘It is undisputed fact that the First Applicant obtained shares in Second Applicant in 		breach  of  section  10  of  Exchange  Control  Act and  as  such  is  invalid.  Bianco v. 		Ruggiero  &  Anor. (1997)  43 FLR 229;  Ruggiero  &  Anor.  v  Bianco  [1998]  FJCA; 		ABU0061 of 1997 (7 October 1998)’
[6]	It was further held that that 1st Plaintiff who is not a resident of Fiji had not obtained 	permission as required under Section 10 of Exchange Control Act,1950 and cannot 	institute proceedings on behalf of the 2nd Plaintiff and the 2nd Plaintiff was remove from the 	action.
[7] 	The Defendant did not deny the receipt of money but stated it was to set up a poultry farm 	and he had set up that farm and it functioned for some time and upon request of the 	Plaintiff its operations were terminated and money distributed.

Analysis
[8]	1st Defendant counterclaimed for damages resulting from ex pate injunction .In the counter 	claim 1st Defendant is seeking for damages pursuant to undertaking given by the 1st Plaintiff 	at the time of the ex parte injunction.(see paragraph 33 of the statement of defence of the 	1st Defendant).
[9]	There is no defence to counterclaim though a reply to the defence was filed on 13.10.2016 	and judgment on default was entered in relation to the counterclaim on 17.11.2016.
[10]	 In junction is an equitable remedy and court has the discretion in granting orders sought or 	to vary them so as to restrict orders that would justify the purpose of granting such orders. 
[11]	In this case the court had not granted orders 4, and 5 sought in the ex parte motion that 	deals with the management of the sheep farm and entering the land, where sheep farm 	operated. So, the Plaintiff was not prevented from either entering and or managing sheep 	farm and he was restrained from selling or dealing of movable and immovable property 	on 	the said land.
[12]	Ex parte orders granted were valid only from 30.7.2015 to 31.8.2016 and they were 
a.	Restraining 2nd Defendant from issuing a lease known as Naravuka Stage 2 (the 	land)
b.	Restraining  1st  Defendant  from  killing, selling,  or  removing  or  dealing  with
	sheep   and   removal   of   machinery,  building   materials,   fencing   or   other 	improvements on the land.
c.	Freezing of ANZ bank account No 05497494.
d.	ANZ  bank  to  provide  the  court with Bank Statements of above account from 	26.2.2013 to 30.7.2015.
e.	The Defendant to provide court a list of his assets.
f.	Restraining 1st Defendant from disposing with assets bought with funds sent to 	him by the 1st Plaintiff directly or through Balaga Bay Farms (Fiji) Ltd.
[13]  	1st Defendant is required to provide evidence to assess the damages incurred in terms of 	the default judgment entered in regard to his counter-claim. 
[14]	 Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry 	[1974] 2 All ER 1128 at 127, [1975] AC 295 at 361 held;
'[The court] retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry into damages at which the principles to be applied are fixed and clear. The assessment is made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction. (See Smith v Day ((1882) 21 Ch D 421 at 427) per Brett LJ.)'
[15]	 In the evidence 1st Defendant did not state any damage that occurred to him due to 	restraining order issued to 2nd Defendant regarding the preventing them from issuing a lease 	for the land which was operational during the pendency of the ex parte order.
[16] 	There cannot be any loss to the 1st Defendant in the order that directed ANZ bank to provide 	Bank Statements of Account No 05497494 to the Court or the order to provide list of his 	assets to the court.  In his oral evidence he did not even mention about these orders and or 	any loss from such orders.
[17] 	If a substantial amount of money is frozen in an account from a businessman it can cause 	damage due to the loss of opportunity cost of the money involved. For this reason and other 	devastating consequences that can result in an appropriate case this method of restraining 	of a defendant is considered as using ‘nuclear weapon’ ( see; Cheltenham and Gloucester 	Building Society v Ricketts [1993] 4 All ER 276 at 284, [1993] 1 WLR 1545 at 1554 per 	Peter Gibson LJ.
[18] 	However when the claim is involved in the same subject matter  preservation of the subject 	matter or a freezing orders  to maintain staus quo can be obtained through an interim 	injunction.(see Universal City Studio v Muktar & sons Ltd  [1976] 1WLR 658 [1976]2All ER 	330.
[19]	The 1st Defendant needs to prove the amount of money that was frozen and how much 	profit or income he could make from that. 
[20] 	The Plaintiff did not prove either of the above. He did not produce at the hearing bank 	statement to show how much money was frozen. If there was no money when the account 	was frozen there cannot be any loss. This can be so if Defendant pre-empted such an action 	and siphoned the money before an order to freeze.
[21]	Since ex parte order directed ANZ bank to provide Bank Statements regarding personal 	Account No 05497494 to the court the court is having custody of them and perusal of them 	show a balance of$1,754.89.  If this is considered still the Defendant needs to prove how 	much profit or income could have earned from that during the period it was frozen.
 [22] 	So, the 1st Defendant’s evidence that he suffered loss due to freezing order is without any 	base and needs to be rejected. Even if he proved that there was sufficient money in the 	account when it was frozen his burden of proof is not to prove the loss due to freezing of the 	amount of money in Account No 05497494 in ANZ bank during the time period of the ex 	parte order which was dissolved subsequently. 
[23]	The Plaintiff was unable to prove that he has a business that earns substantial income.  No 	documentary evidence was presented at the trial. Even in his oral evidence no evidence was 	given regarding its income/turnover, profits of his business. No accounts produced to assess 	even an estimation of his probable profit.
[24]	 Only Plaintiff gave evidence and said that he was seeking a damage of $100,000 as 	damages. He did not produce any documents or how that amount was calculated. He said 	due to the ex parte injunction order he could not sell sheep. It was operational for a period 	only and how many sheep were to be sold during that time was not revealed hence no 	damage can be 	assessed.
[25]	In E Bailey & Co Ltd v Balholm Securities Ltd [1973] 2 Lloyd's Rep 404 the claim was based 	on damages due to loss of profit from commodity market and Kerr J at p 416 held;
“'Mr. Staughton contended that they were entitled to substantial damages on the ground that they had lost the chance of making a profit. He relied on cases such as Chaplin v. Hicks [1911] 2 K.B. 786 which deal with the measure of damages for the loss of a chance. But those were all cases in which the plaintiff might or might not have obtained some pecuniary advantage or benefit and lost the chance of doing so as the result of the defendant's wrongful act. He therefore lost the chance of being better off than he was, but he was not exposed to the risk of being worse off. In cases like the present, on the other hand, a person who is prevented from speculating in cocoa or sugar futures may have lost the chance of making money or may have been saved from losing money. A cynical view would be that there is an equal chance either way. No doubt experience and skill play a large part, and to this extent there may be said to be a better chance of winning than losing. But in my view this is not the kind of situation which the law should recognize as giving a right to damages for the loss of a chance. Even though in law trading in commodity futures does not amount to gambling, the loss of a general opportunity to trade-- as opposed to the loss of a particular bargain--is in my view much too speculative to be capable of having any monetary value placed upon it.”
[26] 	The ex parte injunctive order was operational from 30.7.2015 to 31.8.2016. During that 	time period, how many sheep were affected in what manner, and the cost of that was 	not 	stated or produced through evidence. So even a speculative loss could not be assessed from 	the evidence presented at the hearing.
[27]	The 1st Defendant also said since his personal account No 05497494, was frozen it affected 	his business. He said it was his personal account which he got income from his business as 	market vendor. The 1st Defendant did not state even his profit margin for a month or how it 	had affected and to what extent it had affected to his business was affected. He could have 	opened another account for his business.
[28]	 He said his insurance lapsed due to the non-payment of premium which was a payment 	from the said account. Insurance premiums can be paid to the insurer if the account is 	frozen or closed. What it the premium and why it could not be paid using another method 	was not explained.
[29]	In any event there was no evidence of 1st Defendant seeking order of the court to release 	funds for payment of insurance premium. In a freezing order a party affected adversely can 	make urgent application for release of funds till final determination.
 [30]	 The Plaintiff was unable to prove any loss due to lapse of insurance. He did not even 	produced evidence to prove that there was insurance for him that had lapsed during the 	period when ex parte injunction was operational
[31]	 In the circumstances the Plaintiff failed to provide evidence to assess the damages due to ex 	parte order and accordingly no damage is granted.
[32]	 The 2nd Defendant is seeking costs from the Plaintiff. There is no cause of action pleaded 	against the 2nd Defendant and it was made as party  to  ex parte injunctive order as the order 	was issued restraining them from issuing lease to the land, and no cause of action pleaded 	against them. So they could have sought to strike out from action after ex parte injunction 	was dissolved on 31.8.2016. In the circumstances I award a cost of $750 against the 2nd 	Defendant. The Plaintiff is seeking costs from 1st Defendant regarding counterclaim but they 	have not filed a defence to counterclaim and judgment was obtained on default. In the 	circumstances no costs awarded for the Plaintiff. 1st Defendant is also awarded a cost of 	$750 summarily assessed considering the circumstances of the case.
Final Orders
[33]	a.    The Plaintiff’s claim is dismissed and struck off.
b.	The counter-claim of 1st Defendant is struck off. 
a.	The Plaintiff is ordered to pay cost of $750 for each defendant.

					Deepthi Amaratunga
						Judge