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Pal v Begum [2010] FJMC 173; Civil Case 587.2010 (14 December 2010)

IN THE MAGISTRATE'S COURT AT NASINU

Civil Case No: 587 of 2010

RAVINDRA PAL
PLAINTIFF

V

NUR BEGUM
DEFENDANT

Mr. J. Waqaivolavela for the Plaintiff
Mr. M. Saneem for the Defendant
Ruling on: 14th December 2010

Ruling on the Plaintiff's ex-parte Motion and Orders

1] The plaintiff filled its Ex-parte application seeking, inter alias, that an abridgment of time be given in favour of the Plaintiff and injunction to be granted requiring the Defendant not levy distress of rent on the plaintiff and his family at his place of abode until further Orders. Having satisfied with the plaintiff's ex-parte motion, I granted orders in terms of said motion on the 02nd December 2010.

2] The defendant was properly served and presents this court on 13th December 2010. Counsel for the Defendant made their oral submission by opposing the plaintiff ex parte motion. Plaintiff said that the Defendant should file their objection by way of an affidavit with supporting documents if any. In replying that Defendant said that distress is regular and the Plaintiff has no right to get an injunction for it. The Counsel drew the attention of section 91 of the Proprety Law Act in supporting this contention. Thereafter both parties agreed to file legal submission in this regard. Case was stood down till 200pm. Case then called at 2.20pm and Defendant filed the written submission. The Plaintiff's counsel then asked 15 minutes to consider the submission.

3] Case was recalled at 3.00pm. The counsel for plaintiff applied to lead oral evidence which the counsel for the Defendant strongly objected. Plaintiff wanted to adduce evidence in relation to Rent receipts. This application was made under Order III Rule 2 of the Magistrates court rules.

2. Subject to any particular rules, the court may, in all causes and matters, make any interlocutory order which it considers necessary for doing justice, whether such order has been expressly asked by the person entitled to the benefit of the order or not.

4] This application was rejected by court as this court was reluctant to exercise its discretion. . I decided to deliver ruling as a matter of urgency. I am relying on the legal maxim of "Lex Vigilantibus, Non Dormientibus, Subvenit- Law assists the wakeful, not the sleeping". If he had rent receipts earlier he could have produced beforehand which he failed to do so. Thus, the Plaintiff has to bear his own risk by failing to produce rent receipts. The main contention for the Plaintiff is that plaintiff disputes the arrears of rent. Then onus goes to the Plaintiff and he should show that he has paid the rent up to date.

5] In confronting of this legal issue, I should say the Magistrates Court Rules is a general statue. The Property Law Act is a special statute. In Harlow v Minister of Transport [1951] 2 KB 98 English court applied that legal maxim of Generalia Specialibus non Derogant, that is General statue's provision does not override Special Statute's provision and, special statue's provision should prevail. Property Law Act specially enacted for matters of property and ownership etc.... But Magistrates Court Rules is enacted for streamline the civil proceedings and it is a general statute. Therefore the application of Order III Rule 2 of the Magistrates court rules has no effect on Section 91 of the Property Law Act and Property Law Act prevails all the times. Therefore, the Plaintiff's legal argument is misconceived.

5] Now I turn to the facts placed before me. According to the affidavit of Ravindra Pal, He (the Plaintiff) entered Tenancy agreement with the Defendant- Landlord on 06-02-2010. The Tenancy agreement not marked along with affidavit but just attached it. Thus Tenancy agreement is isolated from the pleadings and cannot be treated as part and parcel of the Plaintiff's pleadings. Paragraph three of the affidavit indicated the termination of tenancy by written letter. This letter was not marked and produced before this court. The Plaintiff then said that the defendant had instituted Civil Case Number 103/2010 and later she had withdrawn it. They appeared six times before court for that matter. However that case does not attract or gives weight to the Plaintiff case as he has filed to produce any documents in relation to that. On 24-11-2010 Bailiff issued a distress of rent to the Plaintiff the he filed this application before this court.

6] It is to be noted that material documents have not been disclosed to this court as above mentioned. This is amount to a non disclosure of material facts. In Votualailai Ltd v The Fiji National Provident Fund Board ( Lautoka C.A. No: 272 of 1988 at page 10 Court held" The non disclosure of material facts, even if it is innocent or inadvertent, is enough to avoid the injunction. The cases of material non disclosures as in this case the ex-parte injunction is liable to be dissolved on that ground alone, without any enquiry into the merits of the case". The Plaintiff failed to mark rent receipts and termination letter of tenancy. This vitiates the Plaintiff's Case.

7] Further, Basic legal principles for granting interlocutory injunctions are set out in American Cyanamid Co. V. Ethicon Ltd [1975] UKHL 1; [1975] AC 396;

A) The Plaintiff must establish that there is a serious question to be tried.

B) The inadequacy of damages to compensate the Plaintiff by the Defendant

C) Balance of convenience.

8] Now I analysed the facts before me. The nexus between Plaintiff and the defendant stems from the Tenancy agreement which was not properly marked. On the other hand the Defendant exercised a statutory right under Section 91 of the Property Law Act. I reproduce the section;

"91. In every lease of land there shall be implied the following powers in the lessor, his personal representatives and transferees:

(a) that he or they may, by himself or themselves, or his or their agents, at all reasonable times, enter upon the demised premises and view the state of repair thereof, and may serve upon the lessee, his personal representatives, transferees or assigns, a notice in writing of any defect requiring him or them, within a reasonable time, to be therein prescribed, to repair the same in accordance with the covenant in that behalf contained or implied in the lease;

(b) that whenever the rent reserved is in arrear he or they may levy the same by distress;

(c) that whenever the rent or any part thereof, whether legally demanded or not, is in arrear for the space of one month, or whenever the lessee has failed to perform or observe any of the covenants, conditions or stipulations contained or implied in the lease, and on the part of the lessee to be performed, or observed, he or they may re-enter upon the demised premises (or any part thereof in the name of the whole) and thereby determine the estate of the lessee, his personal representatives, transferees or assigns, therein, but without releasing him or them from liability in respect of the breach or non-observance of any such covenant, condition or stipulation."

9] Therefore it is evident that Plaintiff has no arguable or serious question to be tried.

10] Would distress cause irreparable loss to the Plaintiff? Court notes that damages to the Plaintiff can be quantified. . Moreover, there is no undertaking by the Plaintiff as to damages of frivolous applications. In National Australia Bank Limited & others v. Bon Brewing holdings Limited & others (1990) 169 CLR 271 court held "that the ex parte order should not have been made without an undertaking as to damages being offered or required". This factor also lies with the Defendant's favour.

11] Now I consider the third limb. The Plaintiff admits that there are some arrears of the rent and do not even suggest the mode of settlement. He disputed the arrears, but it self gives powers to distress under section 91 of above act.

12] I have carefully considered the facts before me. I am of the view that suspension order cannot be sustained and should be vacated. Therefore, I make following orders.

i) The order on 02nd December 2010 on Plaintiff's application is vacated/dissolved and dismissed.

ii) The Defendant ordered to file Statement of Defence for the main case within 14days and The Plaintiff should file the reply within 7 days from thereafter.

iii) The Plaintiff should pay $ 280 as cost to the Defendant.

Sumudu Premachandra
Resident Magistrate