V.E.B. Nicholson & Sons (Antigua) Ltd v the Friends of English Harbour

• Jurisdiction: Antigua and Barbuda
• Judge: Bishop J.
• Judgment Date: 27 October 1982
• Neutral Citation: AG 1982 HC 26
• Docket Number: No. 288 of 1981
• Court: High Court (Antigua)
• Date: 27 October 1982

High Court

Bishop, J.

No. 288 of 1981

V.E.B. Nicholson & Sons (Antigua) Ltd.

and

the Friends of English Harbour

Appearances:

Mr. Phillips, Q.C., and Mr. John E Fuller, for Plaintiffs

Mr. Franklyn A Clarke for Defendants

Injunction - Interlocutory injunction — Plaintiff sought order restraining defendants from letting, renting or disposing of possession of certain building — Whether balance of convenience favoured granting of injunction — Matters in dispute better dealt with by early trial — Defendants to give undertaking to Court to refrain from taking steps to affect interests and opportunities of plaintiff company until determination made at trial.

Bishop J.

1 The summons filed on the 25 ^th June 1982, as amended on the 20 ^th October 1982, seeks, on behalf of the plaintiff Company an order that the defendants by the Supervisor, the Committee, or other their Directors, officers, servants, workmen or agents or any of them or otherwise howsoever be restrained from letting, renting, disposing of or partly with the possession of that building known as the Pay Office situate at the Dockyard, Antigua, or any part thereof to any person or persons other than the plaintiffs until the final disposition of Action Number 288 of 1981 of the High Court of Justice of Antigua and Barbuda; and that the costs of the application be costs in the cause.

2 This summons is supported by an affidavit sworn to by Rodney A Nicholson, Director of English Harbour, St Paul(s, Antigua.

3 In addition to the affidavit learned counsel at the hearing referred to certain paragraphs of the Statement of Claim and to the dates on which the pleadings on record were filed.

4 Learned counsel Mr. Phillips, in dealing with the summons, submitted that on the facts disclosed in the affidavit in support of the summons, the plaintiff company was entitled to the injunction sought, because, on the face of it, it appeared that the defendants were about to act in violation of a contractual duty and of a statutory duty owed to the plaintiff Company; and the Court ought not to permit anyone to behave like that. In addition to his analysis of the facts in the affidavit in support, Mr. Phillips cited sections 11, 12(f), 18(2) and 19 of the Rent Restrictions Ordinance Cap. 327 of the Laws of Antigua, and he supported his submission by reference to rubrics to Order 29 rule 1 of the Supreme Court Practice 1982 centenary edition of England.

5 Learned counsel Mr. Clarke in his reply contended that the plaintiff Company was obligated to showing that there was a legal right which formed the basis of the injunction sought by the company; and he submitted that the only legal right which the plaintiff company had in the instant case was that of being given an opportunity to renew the tenancy and it had no legal right to possession of the premises as was being pursued in the Statement of Claim at paragraph 14(a). Counsel submitted further that the documents exhibited with the affidavit of Rodney A Nicholson revealed that the plaintiff company was afforded an opportunity to renew the tenancy, notwithstanding the failure to reach agreement. Mr. Clarke asked that the Court indicate a preference for the rubrics he cited from the 1970 Supreme Court Practice of England, from which, he said, the Rules of Supreme Court 1970 of the West Indies Associated States were directly taken, over the rubrics cited from the 1982 centenary edition. Counsel for the defendant also cited Order 29 rule 5 of the Rules of Supreme Court 1970, contending that to determine the instant summons was to decide all the issues in the pleadings.

6 At this stage I wish to state that the relevant Rules in the summons before me — rule 1 of Order 29 and rule 5 of Order 29 — are set out in the same words in the two editions of the Supreme Court Practice mentioned by learned counsel for the parties, as well as in the 1967 and 1973 editions. The Rules of Supreme Court (Revision) 1970, in current use in this State, set out Order 29 rules 1 and 5 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 or third party notice, as the case may be.

• (2) Where the applicant is the plaintiff and the case is one of urgency such application may be made ex parte on affidavit but, except as aforesaid, such application must be made by motion or summons.

• (3) The plaintiff may not make such an application before the issue of the writ or originating summons by which the cause or matter is to be begun except where the case is one or 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.(

  5. Where on the hearing of an application, made before the trial of a cause or matter, for an...