Saw

- vs -

Director of Lands & Mines

Judgment

Edgar Joseph Jr J

1. These were two separate applications by Summons-in-Chambers supported by affidavits for interlocutory injunctions against a Public Authority, restraining it or its servants or agents or otherwise howsoever from pulling down and demolishing certain premises known as 115-H and 117-L, Jalan Tengku, Penang, standing on Lots 305 and 306 s 1 Town of Jelutong, North East District, Penang, respectively.

2. The applications arose out of two civil suits being Nos 1508 and 1509/85 in which the two plaintiffs are different but the three defendants are the same. In each application, the interlocutory injunction sought is only against the third defendant, the Urban Development Authority.

3. As common questions of law and fact were involved in both applications, for convenience and with the concurrence of counsel, they were both heard together.

4. In each suit, the plaintiff claims:

   (a)	A Declaration that the acquisition of the land known as Lots 305, 306, 333 and 334 s 1 Town of Jelutong, North East District, Penang vide Gazette Notification No 339 dated the 24 April 1980, made pursuant to an enquiry held on 22 July 1980 and 5 August 1980 be declared null and void and of no effect whatsoever for non-compliance with the provisions of the Land Acquisition Act, 1960;
   (b)	A Declaration that the alienation of the said Lots to Urban Development Authority is ineffective, null and void and of no effect whatsoever;
   (c)	A Declaration that the plaintiff in entitled to remain on the land until evicted according to due process of law.
   (d)	An Injunction restraining Urban Development Authority by themselves or their servants or agents or otherwise howsoever from entering onto the said Lots and pulling down or demolishing the said premises;
   (e)	Damages.
   (f)	Costs.

5. At the conclusion of the arguments yesterday, I dismissed both the applications. I would now state briefly my reasons for that decision as I gather there is some urgency about the matter.

6. In American Cyanamid v Ethicon [1975] AC 396 — Lord Diplock, in enunciating the guidelines for the grant or refusal of interlocutory injunctions, concluded by saying that, “there may be many other special factors to be taken into consideration in the particular circumstances of individual cases”.

7. One such special case concerns actions brought against a Public Authority.

8. It is settled law that a Public Authority — and the Urban Development Authority is such a body — should not be restrained by interlocutory injunction from exercising its statutory powers unless the plaintiff has shown a real prospect of success in his claim for a permanent injunction at the final hearing.

9. I do not consider that the plaintiffs in the present applications had satisfied this requirement for, apart from the merits, I was satisfied that a powerful argument could be mounted at the final hearing, that their claims in the suits are barred by limitation — specifically, by s 2 of the Public Authorities Protection Act, 1948, and by accord and satisfaction.

10. As to the defence of limitation, it could be strongly argued that the plaintiffs’ cause of action (if any) arose when they first became aware of the events upon which their suits are based. This was in June 1982 when negotiations for settlement on an ex-gratia basis were held as between the occupiers including the plaintiffs and a representative of the Urban Development Authority (see Exh Rs-4 annexed to Enclosure 9 in Civil Suit No 1508/85 and Enclosure 7 in Civil Suit No 1509/85). However, both the suits herein were instituted only on 30 November 1985 — that is to say, more than the period of three years prescribed by the statute.

11. As to the defence of accord and satisfaction, both the plaintiffs had affirmed in their affidavits in identical terms as follows:

    9.

    However the third defendant approached me to negotiate the terms of compensation for delivery of vacant possession which are as follows: (a) Payment of $52,000; (b) Payment of $20,000 being part of the cost of building another house on another piece of land; (c) rental subsidy of $50 a month for three years; (d) allocation of one unit of flat in the proposed development at a price to be determined later; (e) Delivery of vacant possession to be given after the completion of my new house upon Occupation Licence being given; (f) the third defendant to obtain the said Occupation Licence for me.

    10.

    I have accepted the said offers without prejudice and it was agreed that I will move to the now house as soon as the said house is completed and the Occupation Licence thereof is issued to me.

12. The plaintiffs admitted that they did receive a sum of $52,000 from the Urban Development Authority, but only in partial settlement of their claims. But, according to the Urban Development Authority, this payment was intended to be in full and final settlement of all claims.

13. It would not be justified for me at the interlocutory stage to resolve this controversy upon a mere conflict of affidavits — it will have to await the final hearing.

14. Be that as it may, it could be strongly argued at the final hearing, that on the plaintiffs’ own versions, there was a valid and binding compromise. If, that were so, then their claims for a permanent injunction at the final hearing would be barred by accord and satisfaction and their remedy would lie in an order for specific performance of the compromise.

15. I was therefore not satisfied that the plaintiffs had demonstrated, within the meaning of the Cyanamid case, so far as it applies to special cases, that they had a real prospect of success in their claims for a permanent injunction at the final hearing.

16. This brings me to the next ground on which I dismissed their applications.

17. “The very first principle of law”, said Lindley LJ in London Blackwall Railway Co v Cross (1886) 31 Ch D 354, 369 —.

    ... is that prima facie you do not obtain an injunction to restrain actionable rights in which damages are the proper remedy.

18. In the Cyanamid case, Lord Diplock made the same point at p 408 B & C in the following terms:

    [T]he court should first consider whether, if the plaintiff were to succeed at the trial in establishing its right to a permanent injunction, he would be adequately compensated by an award of damages for the lost he would have sustained as a result of the defendants continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages ... would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage.

19. In these circumstances, as I had no doubt as to adequacy of the plaintiffs’ remedy lying in damages should they succeed in their claims at the final hearing, there was no need for me to consider the further question of the balance of convenience (see the Cyanamid case at p 408). But, had it been necessary to do so, then I was satisfied that the balance of convenience favoured the Urban Development Authority rather than the plaintiffs.

20. The evidence, relevant to this part of the case, is to be found in the following extracts from the two affidavits of Mr. Safie Abdul Rashid, being Enclosure 9 in Civil Suit No. 1508/85 and Enclosure 7 in Civil Suit No. 1509/85, in particular, paras 32 and 33, respectively, which were identically worded and which read as follows:

    I humbly stress that more hardship would be suffered by the third defendant if the plaintiff’s premises are to remain for the following reasons: (a) the presence of the said premises has delayed the commencement of the said project since 17 January 1983 when the relevant plans were first approved. (b) the delay in the completion of the said project would also defeat the statutory objective of the third defendant to provide cheap housing to the lower income group within the shortest time possible. (c) the third defendant would be unable to take advantage of the relatively low costs of building materials and contract tenders. Any increase in the price of the aforesaid due to delay would be financially straining to the third defendant who is not motivated by profits in its urban renewal projects. (d) the delay would also be detrimental to the other 16 occupiers who had been promised the purchase of flats, shop houses, upon the completion of the said project and who are now temporarily lodging in the said long houses in Sungei Ara.

21. In considering the question of the balance of convenience, I thought I was entitled to, and did take into consideration, the public interest since Urban Development Authority is a public authority: see Smith v Inner London Education Authority [1978] 1 All ER 411. The wider public interest may, in some cases, as it does in my opinion in this case, prove to be of decisive importance. See for example, the case of Rousse-Uclaf v Seanlre & Co [1977] FSR 125 where the plaintiffs had alleged that a drug marketed by the defendants infringed the plaintiffs’ patent, the defendants argued successfully that the drug had life-saving qualities and it was greatly in the public interest not to restrain the sale of such a drug at the interlocutory stage.

22. In the result, I dismissed both the applications with costs.

Cases

American Cyanamid v Ethicon [1975] AC 396; London & Blackwall Railway Co v Cross (1886) 31 Ch D 354; Smith v Inner London Education Authority [1978] 1 All ER 411; Rousse-Uclaf v Seanlre & Co [1977] FSR 125

Legislations

Public Authorities Protection Act 1948: s.2

Representation

Subash Chandran (R.Rajasingam with him) for the plaintiffs.

Bazain Idris (DPP) for first and second defendants.

John WT Heah for third defendant.