Bajrang Builders (Pty) Ltd v Harini & Company (Pty) Ltd (MA 78/2017 (arising in CS11/2016)) [2017] SCSC 883 (18 June 2017)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: MA 78/201'7 (arising in CSl 1/2016 [201'i] scsc 471 BAJRANG BUILDERS (PTY) LTD Applicant versus HARINI &COMPANY (Pty) Ltd Respondent Heard: 5 th day of April 20 1 7 Counsel: Mr. A. Derjacques for applicant Mr. S. Rouillon for respondent Delivered: 9 th day of June 201 7 ----·------·---···---------·-·--·-·---------··------ --- ~ - - - - - - -···-·-· ------ ---·- RULING ON MOTION Govinden J [ 1] This is a Ruling on a Motion filed by th e pplican t dated 10th day of March 2017, seeking that an Order of interim interloc tory injunction be immediately issued ordering the Respondent to cease b d desist from all further construction at the premises in this uit, nam ly the commercial building s ituated on land parcels V 15933 d V 159 8 (as amended) at Providence Estate, Providence, Mahe; an rder th t the Respondent immediately ceases the business of plastic torage aip-d manufacture in the portion allocated to the Applicant and to vacate that portion of the said premises immediately; and an Order to restore th1 possession of the allocated portion of the building to the Applicant d this (by way of revision to the Order of this Court of the 8th day of Ap il 2016 in MA 44 of 2016.) [2] In support of this Application, the Applicant's director and representative Mr. Bhupesh Danji Hirani has filed an Affidavit deponing to the purported grounds in support of the Application. Ij a gist the main grounds as averred reflect as follows . That by virtue of the interim Order of this Court dated 8th day of April 20 16, the pplican had been ordered, inter alia, to vacate the premises forthwith 'pending the full and final determination of the main suit on its me ·ts or u Jitil further Order of the Court'. That the Applicant has fully c mplied ith that Order and that the Respondent presently and is continuing to ransform the said building in the main action from one structure to ano her. Particulars of the 'transformation is set out in the Affidavit as to the Respondent's removal of lawful structure s, authorized by plannin Authority in that said portion allocated for the Applicant's use for 10 years, as per the contract subject matter of the main suit, the Respondent's entry on the said portion a llocated to Applicant's use and ·s utilizinL the same to store and process plastic material, the Respon ent is e~tending the said building by a further 200 meters square and transfdrming it from one structure to another and this will give ri e to futh re, repeated and multiple litigation. That the Respondent mus preserv the building as is, until final Judgement of the Court in the main suit s<D that the object of the main suit not be destroyed. [3] It is further averred that the Applicant is suffl ring gre t hardship in that it does not have another work site, it mus retain i s work force and continue its business and hence prays this ourt to onsider and allow the Applicant to re-enter its allocated portio ilding to continue only lawful activity allowed by the Planning A thoritie and the Court. [4] As it would transpire from Records of proceedings in ivil Side No. 11 of 2016 (the main suit), by a Plaint dated the 18th day of February 2016 Respondent seeks for the reliefs of rescis ion of he building lease agreement dated the 24th day of September 2010 between the parties; and ordering of the Applicant to imme iately s l p operating the workshop inside the leased premises or any ctivities k hatsoever and to vacate the premises forthwith; to remove all the temporary sheds, containers and workers accommodation remove all construction materials, debris an ry immediately; to allow an independent architect to be appointed to fin ize the cost of the building and include the defaults cost in hi final r ort; to cover any rents paid by the plaintiffs to third parties namely t sh Leather & Co since January 2012 at S. R. 3 7, 500 / - per mo th for c I rying out its own business activities; and to pay the Res ondent the sum of S. R. 200,000 / - special damages and cost of the ao ion. [5] A further Motion was filed arising out of the tyain suit r y the Respondent which Motion sought for an interlocutory injuncti~n to prevent the Defendant from carrying on with the conti ued illegal occupation and activities in the Plaintiff's premises until th matters mentioned in the Plaint are fully and finally decided by this Hoi,ourable f our!. [6] In furtherance to the above-mentioned Motion, this ~ourt delivered on the 8th day of April 2016 an Order wherein the Cou t ruled inter alia, that: - 'having carefully scrutinized the Affidavit and supporti g submissions and attachments in support of this Motion, I am satisfied a follows: (i) Firstly, on the face of the pleadings, I am satisfied thj the Plai tiff appear to have a bona fide claim as against the Defendant in the mair suit; I am further satisfied that unless the Court grants the Inte;locutory Irjunction as sought by the Applicant in this matter, the Plaintif) will suff.er substantial and irreparable loss, hardship, inconvenience, pr :fudices nd distress in the event Judgement is given in their favour. Ha ing give careful thought to the entire circumstances of the case and in he intere t of justice and in terms of the equitable powers conferred on in pursuance to sections 5 and 6 of the Courts Act (supra), I h reby gra t the Motion for an Interlocutory Injunction to the following effect: Th t the Respondent immediately ceases all unauthorized activit es on t'! leased premises namely on the leasehold of Parcels VI 5933 and VI ~! 78 of Providence, Mahe more particularly operating a carpe try war shop, construction depot and temporary site accommodation for oreign corstruction workers; immediately demolish the unauthorised dorm tories, cohugated iron sheet hoarding and corrugated iron sheet store on the abovl-said parcels; cart away all debris as resulting from the dem(!)lition of all the above-said unauthorized structures and vacate the premises forth ith pending the full and final determination of the main suit on its merits o until further Order of this Court.' [7] As a result of the main suit, Applicant fi ed a s l ement of d efence wherein it moves for the dismissal of the Plair;i.t and r ·ses a counterclaim for loss and damages suffered as a result of alleged l njust enrichment' on the part of the Respondent should they s cceed witjh the Plaint' in the sum of S . R. 6 million. [8] The Respondent by way of written submissi9ns of Le ned Counsel Mr. S. Rouillon dated the 5th day of April 201 i objects to t he Application submitting in a gist that the statutory autho ·ty for gr t of injunction is found in section 304 of the Seychelles Cod of Civil Procedure; that a prima facie case has to be showed prior to applications for temporary injunctions before the determination of the main suit land that it stands to suffer irreparable loss should the injunctio not be ranted. [9] I wish to state at this juncture that the Respondenf through Learned Counsel's written submission in no uncertain terms sur mits at paragraph 5 of the submission that, "the main reason ff r the gmmt of a temporary Injunction is to preserve the status quo a 1d to pr tect a party from suffering irreparable harm or injury which wo ld not be adequately atoned for by damages. That on the question of irrep j able las the words of Lord Diplock, in American Cyanamid co v Ethicon td, 197 (1) ALL ER 504 is repeated.' [10] It is further argued by the Respondent that 'in th instant case the applicant in its main suit has prayed only for damar es (in the sum of (S. R. 250,212, 5000.00 and interest at 4 % pe annum nd cost). There is no prayer for injunctive relief or a permanent i ,junction. None of the orders sought in the application for a temporary 'njunctio form part of the prayers in the head suit. . . . . . The interim relief sought on this application has no relationship to the final relief sought in the head suit. The Applicant has therefore failed to clear the first threshold that it has an arguable case for a permanent injunction to restrain the Respondeh t from continuing breach of the contact or withdrawing certification or ccreditation of the applicant. (Emphasis is mine for not reflected in the pleadings) . [ 11] It is further submitted by the Respondent th t by clai ing damages only as it has done in the main suit it is clear at the pplicant's alleged losses can be compensated by an award of damages. [ 12] It is trite that incidental demands may be m de by eit er party to a suit, in the course of the main suit and this should be made by way of an application to the court by way of motion to ake an ·ncidental demand I and the motion shall be accompanied by Affida it of the facts in support thereof and shall be served upon 121 and 122 of the Seychelles Code of Civil Pro edure (Cap 213) (hereinafter referred to as the "Code") refer). [ 13] It is also trite in furtherance to the above-cit d sectio s of the Code that the powers of the Court to grant ad interim ·njunctio s has as basis the provisions of Section 304 of the Code as reatl. with th equitable powers of the Court by virtue of the provisions of se tions 5 and 6 of the Courts Act (Cap 52). The preconditions of substantial an inconvenience, prejudices and distress f the event the irreparable loss, Judgment is given in Applicant's favour (in a pending ain suit) are also hardship, of paramount importance to be considered by tHe Court in such incidental applications. [14] I should also stress at this stage that all parties should come to Court with clean hands and once an Order of Interim ln}U!,nction is 1ranted in favour of one party pending the final determination of the main uit (subject matter of the Interim Order), it is also the duty of the benefir ary of the interim Order to ensure that nothing is done to breach the Inte1 m Court Order and or to change the status quo of the premises pem.ding the 1/inal determination of the suit ensuring that justice is not only do e but se n to be done to all parties (whichever way the Judgement goes o the meri s). [15] In this Application, true it is that the Applicl t in it counterclaim has sought for claim for damages and loss arising out of' njust enrichment' as a result of the actions of the Respondent,. breachi~ g the contract' as contended in the statement of defence nam ly at patagraphs 3 and 10 thereof and 'it should be noted that the Plai t of the espondent in the main suit is sought to be dismissed in terms of the A plicant's prayer in its statement of defence'. Hence the wording of section 304 of the Code is to be given its widest interpretation as read with sect ons 121 to 125 of the Code and in terms of the continuance of a breach of contract as and when it arises. It is only logical in this case to fi d, based on the pleadings for the purpose of this Applic ion, tha the breach and continuance of breach of agreement in modification and alteration of the premises started only the iss ing of the interim Order of this very Court of the 8 t h April 201 hence c uld not have been foreseen at the stage of the filing of the st tement f defence and the counterclaim of the Applicant and in any e ent, the Respondent is not contesting the alleged breaches and continuance of breach of the agreement in terms of the particulars of the pplicati n by the Applicant as averred at paragraphs a , b and c of the p ticulars [ 16] It follows therefore on the above basis and i line wit the provisions of sections 5 and 6 of the Courts Act, I find that this is a 1t and proper case whereby this Court ought to intervene to exercise it equitable powers, authority and jurisdiction to administer justice and t do all acts for the due execution of such equitable jurisdiction in al cases where no sufficient legal remedy is provided for by the law of Se chelles. [ 1 7] In exercising its equitable powers the Court · s minde that it should not without any good reason delay a successf "plaintiff' in realizing the fruits of his Judgement from the the same time it cannot also deny an unsuccessful party the ruits of is judgement from the Court of Appeal in the event of his succ ss (if an ), in an appeal. In the present case, the hearing of the main suit is pending and the Respondent has sought and been granted in erim me sures to secure its interests so as to avoid damages and or fu ther da ! ages (if any) as a result of alleged breach of the contract in the main su t by the Applicant. Likewise, it is only just, that the Applicant w o is den ·ng the Plaint and seeking its dismissal and raising a co nterclaillj1 should not be prejudiced by the actions of the Resp ndent ~y alteration and modification of the premises subject matter o the con sted contract and arising, commencing and continuing after he issu,·ng of the interim order of the 8th day of April 2016 which p rpose w s to maintain the original status quo of the premises (prior t alleged llegal activities as averred in the relevant Application leading to the said terim Order). [ 18] The Court thus, hereby finds that the princip es gover ing granting of an interim injunction cannot be restricted to or igeon ho d within the strict and or sole grounds as canvassed by Learned Counsel for the Respondent as per his submissions. To y mind, the relevant and foremost question to be asked is to be de ermined not on the basis whether the case satisfies any or one of the :rounds b t primarily on the basis of whether the interim Order is to tie grante in terms of the prayers in whole or in part and if it is necess the given set of facts and circumstances. I ends of justice in s rather prefer to ask myself the question as to what does justice requir , whether to grant or refuse the Application in the case at hand. It is Jy considered view that the principle is to be discretionary withm the eq itable powers and jurisdiction of this Court. [ 19] Firstly, I am satisfied ex-facie the pleadings n the ab ence of contest of the alleged alterations and modifications of the premi es subject matter of the main suit, that the Applicant has satisfied t is Court of valid grounds in support of this Application for the purpose f reliefs sought at paragraphs (i) and (ii) of the Application (Ro an lette s). Secondly, I am equally satisfied, ex-facie the pleadings, filed in support of the Application and the non-contest as above-referred b the Respondent, that undue prejudice, inconvenience, loss and hardsh p shall be suffered by the Applicant by refusal of the reliefs afor mention d. [20] Thus after taking into consideration all the r levant facts and circumstances of the case, the Court finds that the Applicant has valid grounds in raising the objections to the acti s of the Respondent vis-a. vis the Respondent with regards to the remises pending the final determination of the main suit. r the balance of inconvenience, hardship and loss that the p rties ma suffer in granting or refusing the Application. I find in that la ter regartl, that the alleged injury the Applicant may suffer due to incon enience, loss and hardship by refusal of the Application as specified is more th n that which the Respondent will suffer by the grant of t e Appli measures are already in place to secure the Res pending the final determination of the main s it). [21] Having given careful thought to all the relevant facts d circumstances of this case and in the light of the principles formulate , above, I find tha t an ad Interim Injunction in favour of the Applicant for the ends of justice is required to be granted by this Court in line with t e observations at paragraph [ 19] of this Ruling and subje ct to t~e followi (i) Firstly, following the Order of this Cour:t of the 8 hday of April 2016 an Interim Injunc tion is h e r e b y issue d orde 'ng the R spondent to cease and desist from all further construction a the pre ises in this suit, namely the commercial building situated on land parcel S 15933 and V15978at Providence Estate, Providence, ¥ahe the fina l adjudication of the main suit; (ii) Secondly, the Respondent shall immediately ceaise the business of plastic storage and manufacture in the portion allocated to the Applicant (which is subject matter of the main suit) and this pending the final adjudication of the main suit; (iii) Thirdly, in view of the Order of the 8 th ay of Ap il 2016, the Court finds that there is no substantial r ason at this stage of the proceedings which has been proved to e satisf ction of this Court to justify reinstatement and or restora ·on of th possession of the allocated portion of the building to the .t.\pplicant on the Affidavit evidence as filed by the Applic nt nam y paragraph (d) of the particulars thereof. Hence the sta us quo f the Applicant in terms of possession of the premises re ains as !ordered as per the interim Order above-referred. [22] For the reasons stated hereinbefore, I partially grant he Application for an Interim Injunction as sought by the Applicant su ject to conditions above-ref erred. [23] The hearing dates as fixed in the main suit re . . run as 1 elivered at Ile du Port on 9th da of June O 1 7. 10