Baldeosingh v Bholai et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Ibrahim, J.
• Judgment Date: 17 June 1983
• Neutral Citation: TT 1983 HC 71
• Docket Number: 404 of 1982
• Court: High Court (Trinidad and Tobago)
• Date: 17 June 1983

High Court

Ibrahim, J.

404 of 1982

Baldeosingh

and

Bholai et al

Appearances:

Mr. De Labastide S.C. ( Mr. Sharma and Mrs. May with him) for plaintiff

B.P. Maharaj for 3rd and 4th defendants.

Injunction - Interlocutory injunction — Application for continuation of interlocutory injunction restraining the defendants or their servants from entering a parcel of land — Summons for continuation of interlocutory injunction — Dictum of Lord Diplock in American Cyanamid Co. v Ethicon Ltd [1979] 1 ALL E.R. 504 applied — Failure of applicant to disclose the parties that would be entitled to the injunction — Failure to do so amounted to a suppression and misrepresentation of material facts — Order applied for is refused and injunction is discharged with costs.

Ibrahim, J.

1 On April 15th, 1982, the plaintiff applied for and obtained an interlocutory injuction, ex-parte, against the 3rd and 4th defendants: Pundit Sasenarine and Vishnu Dhanashwar Sasenarine. The order was:–

2 That the third and fourth defendants by themselves, their servants and or agents and every one of them be restrained and an injunction is hereby granted restraining the third and fourth defendants by themselves, their servants, agents and or workmen each and every one of them from entering upon ALL AND SINGULAR that piece or parcel of land comprising 16,184 square feet, more or less and being Lot No. 90 and situate at Rio Claro Main Road, and bounded on the North by a space along the Naparima Mayaro Road, on the South by lot No. 89 and by a road reserved on the East by Lot No. 91 and on the West by Lot No. 135 and shown on the general plan described in Certificate of Title in Volume 2589 Folio 433 and now described in Certificate of Title in Volume 2594 Folio 509 being a portion of the land described in Certificate of Title registered in Volume 1500, Folio 261 and erecting thereon any structure or interfering with the fence or gate or in any ether way interfering with the plaintiff's use occupation and enjoyment of the said lands until after the hearing of a Summons returnable on the 28th day of April, 1982. That the plaintiff be at liberty to issue and serve with the Writ of Summons herein an office copy of this order and a Summons to continue this injunction and that the costs of this application be reserved fit for counsel.

3 The application was supported by two (2) affidavits, both sworn to by the plaintiff on 15th April, 1982, (hereinafter referred to as the plaintiff's affidavits).

4 The plaintiff's solicitors took out a Summons on 15th April, 1982 returnable on 28th April, 1982, purportedly seeking a continuation of the interlocutory injunction until further order. Copies of the Office Copy of the order and Summons were served on the defendants on 19th April, 1982.

5 The 3rd defendant filed an affidavit in opposition to the grant of the injunction. That was sworn to on the 4th day of May, 1982, (hereinafter referred to as the 3rd defendant's affidavit). Kumar Baldeosingh filed an affidavit on 25th May, 1982. That was sworn to on the 25th May, 1982. It was in reply to the 3rd defendant's affidavit. The 3rd defendant filed an affidavit on 24th June, 1982. That was sworn to an 16th June, 1982 and was in reply to the affidavit of Kumar Baldeosingh.

6 The Summons of 15th April, 1982 was adjourned on several occasions. On each occasion, the court ruled the interlocutory injunction to continue until the adjourned date. That Summons is now before the court for hearing and determination.

7 It will be observed at this point, that the Summons of the 15th April, 1982 sought no order from the court. I assume that the purpose of the Summons was to obtain an order that the interlocutory injunction granted on 15th April, 1982 be continued until further order. The words ‘to continue’ are not included in the Summons. The Summons as drafted therefore makes no sense.

8 Assuming it is to be construed as I perceive it to be, then counsel for the plaintiff submitted that the questions to be considered in determining the issue whether to continue the injunction or not were set out by Lord Diplock in his speech in the House of Lords in American Cyanamid Co. vs. Ethicon Ltd., [1975] 1All E.R. 504. Lord Diplock stated the questions to be:–

• (a) The case must not be frivolous or vexatious; in other words, that there is a serious question to be tried.

• (b) The adequacy or inadequacy of damages to be considered; and

• (c) Consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief sought.

9 He submitted that these were the only questions with which the court should be concerned.

10 Counsel for the defendants submitted that there is a much more fundamental question the court should consider. He submitted that the injunction was granted on a suppression or misrepresentation of material facts which was of such a character as to present to the court a case which was likely to procure the injunction, but which was in fact different from the case which really existed. Or, as stated by Gomes C.J, in Sadaphal vs. Paul [1961] 3 W.I.R. 340 at page 344, “If it can be demonstrated that the plaintiff concealed the fact which makes his contention in the issue untenable then it would amount to a suppression of a material fact in which event, the principle we are here discussing would come into operation.”

11 What is the suppression or misrepresentation of which counsel complains? He says it is contained in the plaintiff's affidavits and the affidavit of the plaintiff's son Kumar Baldeosingh (which was filed in reply to the defendants affidavit). The first affidavit of the plaintiff sworn to on the 15th April, and filed on the same date is his principal affidavit. The 3rd defendant is implicated in paragraphs 12, 13, 14, 15 and 16. The allegations against this defendant relate to a trespass on 12th April, 1982 and a fear that he will continue his acts of trespass against the plaintiff's possession and occupation if not restrained. Paragraph 15 sets out the only complaint against the 4th defendant. That paragraph states that the 3rd and 4th defendants acquired the parcel of land, the subject matter of these proceedings on 15th December, 1981. There is...