IN THE HIGH COURT OF JUSTICE BETWEEN AND CHAGUARAMAS DEVELOPMENT AUTHORITY

Transcription

1 THE REPUBLIC OF TRINIDAD & TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN TRINIDAD SALT COMPANY LIMITED Claimant AND CHAGUARAMAS DEVELOPMENT AUTHORITY Defendant Before the Honourable Mr. Justice R. Rahim Appearances: Mr. R. L. Maharaj SC and Mr. R Bissessar instructed by Mr. V. Gopaul-Gosine for the Claimant Mr. R. Martineau SC and Ms. A. Rahaman instructed by Ms. R. C. Maharaj for the Defendant

2 RULING ON APPLICATION TO CONTINUE INTERIM INJUNCTION 1. By application without notice of the 19th March, 2015, the Claimant sought prohibitory injunctions. The notice was supported by the affidavits of Fernando Miguel Navarro, Fernando Roberto Navarro and Jaikerran Persad also filed on the 19th March, Supplemental affidavits, in accordance with the Order dated the 2 nd April, 2015, of Fernando Miguel Navarro and Jaikerran Persad were filed on the 1 st May, 2015 and 4 th May, 2015 respectively. 2. By fixed date Claim From filed on the 19 th March, 2015 the Claimant sought: i. A declaration that a dispute exists between the parties which is required to be determined by arbitration in accordance with the arbitral provisions at clause (b) [p.11] of the Deed of Lease between the parties made on the 30 th June 1975 and registered as No of 1975 ( the 1975 lease ) ii. An order that the Court do determine and settle the terms of reference for the arbitrators and to give such directions that may be appropriate for the conduct of the arbitration pursuant to Section 4 of the Arbitration Act Chapter 5:01 ( the Arbitration Act ) and paragraph 4 of the First Schedule of the Arbitration Act. iii. An interim injunction pursuant to Parts 17.1(1)(a), 17.1(1)(c), 17.1(3) and 17.1(4) of the Civil Proceedings Rules 1998 (as amended) and Section 31(1) and paragraphs 7 and 8 of the Second Schedule of the Arbitration Act authorizing the Claimant, its servants and/or agents and/or anyone authorized by the Claimant to re-enter and remain in possession of the premises known as and situated at 1 st Avenue South, Chaguaramas ( the demised premises ) and to conduct business. 2 P a g e

3 iv. Interim injunctions pursuant to Parts 17.1(1)(a), 17.1(1)(c), 17.1(3) and 17.1(4) of the Civil Proceedings Rules 1998 (as amended) ( the Rules ) and Section 31(1) and paragraphs 7 and 8 of the Second Schedule of the Arbitration Act against the Defendant, its servants and/or agents and/or anyone authorized by the Defendant, pending the hearing and determination of the Claim and/or the delivery of the arbitrators final award of any further order of the Court:- (a) Prohibiting such from removing and/or damaging and/or destroying any of the Claimant s goods and chattels including any machinery, equipment and cargo on the premises while they remain in the custody and/or control of the Defendant; (b) Ordering such to vacate the premises prior to the re-entry of the Claimant; (c) Prohibiting such from the re-entering and remaining on the premises after the Defendant vacates the premises; (d) Prohibiting such from entering into any lease arrangement or agreement with any third party in respect of the premises; and (e) Prohibiting such from doing anything that is likely to or will interfere with the Claimant s quiet enjoyment of the premises and/or adversely affecting the Claimant s businesses. v. A declaration that the Defendant s action and/or conduct in forcibly re-entering and repossessing the premise on the 14 th March 2015 notwithstanding that the Claimant had activated the dispute resolution provisions of the 1975 lease and was in negotiations with the Defendant for a renewed lease constitutes an act of trespass. vi. Damages for trespass. 3 P a g e

4 vii. An order pursuant to Part 17.1(1)(1) of the Rules directing the Claimant to prepare and file accounts with fourteen(14) days of it being returned to possession of the premises certifying its loss and damage arising from the Defendant s forcible re-entry and repossession of the premises. viii. An order that such loss or damage incurred by the Claimant as a result of the Defendant s forcible re-entry and repossession of the premises be assessed and paid by the Defendant to the Claimant. ix. An order for interim costs pursuant to Part 17.1(1)(i) of the Rules and costs generally. x. Such further or other relief as the nature of the case may require. 3. The Without Notice application was granted by Order dated the 20 th March, 2015 in respect of the interim relief for re-entry by the Claimant and prohibition of the Defendant. The order was served on the Defendant on the 21 st March, 2015 and the Claimant reentered the premises and has remained in possession since. 4. An application to discharge the Order was made on the 26 th March, This application was supported by the affidavits of Ronald Hinkson, Robert Prescod, Peter Neptune, David Saroda, Adrian Simpson, Melvin Aberdeen and Jocelyn Hargreaves all filed on the 26 th March, A supplemental affidavit of Jocelyn Hargreaves was filed on the 27 th March, The application to discharge was dismissed on the 2 nd April, and the injunction granted by Order dated the 20th March 2015 continues in force until determination of this interim application. 4 P a g e

5 The facts as alleged 6. The Claimant, incorporated on 9 th August, 1970 under and by virtue of the provisions of the Companies Ordinance Chapter 31 No. 1 and was continued on 15 th September, 1998 pursuant to Section 340 of the Companies Act Chapter 81:0. The Claimant operates a a salt retailing business on the demised premises and it claims that it offers port facilities at its place of business. 7. The Defendant (CDA) is a body corporate established under and virtue of Section 3(1) of the Chaguaramas Development Act Chapter 35:02 whose principal mandate is to develop the north-west peninsula of Trinidad and Tobago, commonly known as the Chaguaramas peninsula. By virtue of Sections 14(2)(b), (c) and 14(4) of the said Act, the Defendant is authorised to alienate the freehold or grant leases, which are subject to their Vesting order, for a term of not more than thirty (30) years with an option for a further term not exceeding thirty (30) years. 8. The court has made no findings on the facts of the case at this stage but has and recourse to the contents of all the affidavits in order to get a complete understanding of each party s case on the application. 9. The Defendant owns the demised premises comprising 1A, 3R and 30P situated at 1 st Avenue, Chaguaramas. On the 14 th March 2015, the Defendant re-entered the premises and took possession without a court order and according to the Claimant without notice. The Claimant has been continuously in possession as a tenant of the Defendant in respect of the demised premises since the 1 st June, 1975 pursuant to a deed of lease dated the 30 th June, 1975 and registered as No. 9140/1975 ( the 1975 lease )( See FMM 1). The 1975 lease expired by the effluxion of time on 31 st May 2005 and since 2006, according to the Claimant, it had been in negotiations with the Defendant for a renewal of the 1975 lease in accordance with the renewal provisions at clause 3(b) of the said lease. The Claimant was required to give notice in writing at least six months before the expiration of the lease for the renewal of such lease. However, the Claimant by letter dated the 25 th 5 P a g e

6 January, 2005 (See FMM 7) sought from the Defendant the renewal of the lease some four months before the expiration of the lease. The 1975 lease contained an arbitration provision which was activated by the Claimant by way of notice dated the 30 th July, 2014 (See FMN 2). 10. Several meetings were held and communication exchanged between the parties. Some of the communication contained draft leases. On the 28 th May 2013, the Defendant communicated a draft lease to the Claimant which set out the annual rent of One Million and Eighty Thousand dollars ($1,080,000.00), as opposed to the sum of One Hundred and Forty-Five Thousand, Seven Hundred and Twenty-Eight dollars $145, per annum being paid by the Claimant at that time, and a lump sum payment of thirty six months rent in advance in the sum of Three Million, Two Hundred and Forty Thousand dollars $3,240, Further, the Claimants were served on the 4 th September, 2013 with a notice to quit dated the 4 th September, 2013 (See FMM 38) requiring them to quit and deliver up possession of the demised premises to the Defendant by the 31 st May, The date for delivery up of the premises having passed, the Claimant remained in occupation of the premises and negotiations continued between the Claimant and the Defendant. A meeting was also to be scheduled a for the new directors of the Defendant to be introduced to the Claimant. 12. By Arbitration notice of the 30 th July 2014, the Claimant sought to activate the dispute resolution procedure contained in the 1975 lease in relation to the issue of the non renewal of the lease for a further term of thirty years. 13. The Claimant alleges that at the date of re-entry by the Defendant, the parties were in dispute as to the appointment of an arbitrator under the lease. They also allege that the fact that the Defendant s position was that there was no dispute was itself a dispute which ought to have activated the provision for arbitration provided for in the lease. 6 P a g e

7 14. According to the Claimant, approximately thirty of the Claimant s employees became jobless and millions of dollars worth of machinery, equipment and cargo owned third parties were detained by the Defendant upon re-entry. 15. The Claimants attempted to pay the monthly agreed rent of twelve thousand, one hundred and forty-four dollars ($12,144.00) since the 1 st June, 2014 but the Defendants have refused same. The Defendant last collected rent from the Claimant for the period 31 st May, 2014 and has refused to accept subsequent rent payments. 16. The Defendant alleges that it excluded the Claimant from the premises on three grounds; firstly, the notice of renewal was issued by the Claimant out of time secondly, the Claimant owed rent and finally, the Claimant was in breach of the covenant to keep and maintain the demised premises in good repair. According to the Defendant, for these reasons, the lease was not renewed. So that on the Defendant s case, there were breaches of fundamental covenants and negotiations broke down. The Defendant alleges that its position was fully articulated in its extensive letter of the 10 th February 2015 in which it was made clear that the tenancy was at an end and in which it called upon the Claimant to quit the premises forthwith. The court has carefully considered the contents of this letter but has made no finding of fact in respect thereof. 17. On the 16 th March, 2015, some two days after the eviction, the Claimant received a letter, from the Defendant requiring the Claimant to remove its goods and chattels by the 21 st March, 2015 and advising that the Defendant would not be liable or responsible for same thereafter. The test for injunctive relief 18. The law is well settled regarding the criteria to be used when determining whether to grant interim injunctive remedy. The court is therefore to be guided by the following questions: 7 P a g e

8 a) Firstly, is there a serious issue to be tried. In relation to the grant of a mandatory injunction in some cases it may be necessary for the claimant to show on a balance that he is likely to succeed. b) Further, does the greater risk of injustice lie in the grant or refusal of the injunction. In some cases damages may not be an adequate remedy. In some cases, a Claimant may not have a strong case but nonetheless the consequences of the refusal to grant the injunction may have consequences which far outweigh the consequences to the defendant of wrongfully granting it. See East Coast Drilling and Worker Services Ltd v Petroleum Co of Trinidad and Tobago Ltd (2000) 58 WIR 351, Jet Pak Services v BWIA International Airways (1998) 55 WIR 362. In the well known authority of The Privy Council, National Commercial Bank Jamaica Limited v Olint Corp Limited (Jamaica) (2009) UKPC 16, Lord Hoffman crystalised the position when discussing the approach to be adopted in the grant of an injunction be it mandatory or prohibitory in nature at paragraph 19 and continuing as follows; 19. There is however no reason to suppose that in stating these principles, Lord Diplock was intending to confine them to injunctions which could be described as prohibitory rather than mandatory. In both cases, the underlying principle is the same, namely, that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other: see Lord Jauncey in R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603, What is true is that the features which ordinarily justify describing an injunction as mandatory are often more likely to cause irremediable prejudice than in cases in which a defendant is merely prevented from taking or continuing with some course of action: see Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670, 680. But this is no more than a generalisation. What is required in each case is to examine what on the particular facts of the case the consequences of granting or withholding of the injunction is likely to be. If it appears that the injunction is likely to cause irremediable prejudice to the 8 P a g e

9 defendant, a court may be reluctant to grant it unless satisfied that the chances that it will turn out to have been wrongly granted are low; that is to say, that the court will feel, as Megarry J said in Shepherd Homes Ltd v Sandham [1971] Ch 340, 351, a high degree of assurance that at the trial it will appear that at the trial the injunction was rightly granted. 20. For these reasons, arguments over whether the injunction should be classified as prohibitive or mandatory are barren: see the Films Rover case, ibid. What matters is what the practical consequences of the actual injunction are likely to be. 21. Their Lordships consider that this type of box-ticking approach does not do justice to the complexity of a decision as to whether or not to grant an interlocutory injunction. 19. Additionally, however, the Claimants argue that this claim is predicated upon the assertion of the right of the Claimant to invoke the arbitration clause contained in the lease. Attorney for the Claimant has submitted the following in that regard. 20. That with respect to arbitration proceedings, the learned authors of Bean on Injunctions 11 th Edition at pages 72 and 73 at paragraph 4-82 set out an instructive discussion which when summed up demonstrated that the Courts seek to uphold arbitration agreements and in appropriate cases, grant interim injunctions so that the arbitration agreement would not be frustrated and instead would be upheld. 21. The learned authors of Bean (supra) went on to state that: Such an injunction enables the court to preserve the parties rights while the arbitration is under way but may not extend to a final anti-suit injunction due to the express reference to interim injunctions in s. 44(2)c). 9 P a g e

10 but certainly s. 37 of the Senior Courts Act 198 can be used to support arbitration by requiring parties to refer their disputes to arbitration. 22. It has been argued by the Claimant that the position in Bean (supra) can be said to be similar to that of our jurisdiction. Section 31(1) of the Arbitration Act Chapter 5:01 provides that: (1) The Court shall have, for the purpose of and in relation to a reference, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of and in relation to an action matter in the Court; but this shall not be taken to prejudice any power which may be vested in an arbitrator or umpire of making orders with respect to any of the matters aforesaid. The maters set out in the Second Schedule include: 7. The detention, preservation or inspection of any property or thing which is the subject of the reference or as to which any question may arise therein Interim injunctions or the appointment of a receiver Section 37 of the Arbitration Act Chapter 5:01 provides that: (2) For the purposes of this section, an arbitration is deemed to have commenced when one party to the arbitration agreement serves on the other party or parties a notice requiring him or them to appoint an arbitrator, or, where the arbitration agreement provides that the reference shall be to a person named or designated in the agreement, requiring him or them to submit the dispute to the person so named or designated. 23. Further, Section 23(5) of the Supreme Court of Judicature Act Chapter 4:01 provides that: 10 P a g e

11 ...a mandamus or injunction may be granted or a receiver appointed by an interlocutory order of the Court or Judge in all cases where it appears to be just as convenient, and any such order may be made either unconditionally or upon such terms and conditions as the court of judge thinks fit. 24. The Claimants submitted that in the instances where contracting parties agree to have their disputes resolved through arbitration to or to have such arbitration in another county, the Court would not permit a party to do otherwise but instead the Court secures compliance with the contractual bargain. The case of Kitts v Moore (1895) 1 QB 253 was used in support of such position. In Kitts (supra), the Court had to determine if they had jurisdiction to interfere by injunction on equitable grounds to restrain the defendant from commencing arbitral proceedings where it was alleged that the arbitration agreement was voidable. On appeal, the defendant sough to set aside the injunction arguing the Courts did not have the power to grant such injunction. The Court of Appeal upheld the injunction at page 235 on the basis that: the Court has jurisdiction to interfere by injunction, on equitable grounds to restrain the defendant from proceeding to arbitration where an action has been brought impeaching the instrument containing the agreement for reference. 25. Further, in North London Railway Company v The Great Northern Railway Company (1883) 11 QBD 30, the Court dealt with a case which involved a collision of two trains where both owners claimed the other was at fault. One company began arbitration proceedings while the other sought an injunction to prevent arbitration in favour of court proceedings. The Court of Appeal refused to grant such injunction and held that it could not grant an injunction where a claim in arbitration fell outside an existing arbitration agreement as such arbitration did not amount to an infringement of a legal or equitable right. The Court did not prevent the arbitration, and consequently, learned Senior Counsel for the Claimant submitted that the court is cognizant of the contractual obligations of parties who have agreed to arbitrate. 11 P a g e

12 26. At page 38 of North London (supra), Brett L.J stated: If we were to attempt to stop the appellants from proceeding with this arbitration it seems to me that we should be putting upon them a burden and that we would be given the respondents a right, neither of which existed in equity or at common law before this statute. And Cotton L.J in his judgement at page 39 stated: where there is a legal right, the Court may...grant an injunction where it is just or convenient to do so for the purpose of protecting or asserting the legal rights of the parties. 27. This court agrees with the submissions of Attorney for the Claimant on the applicable approach when considering interim relief in relation to the upholding of arbitration clauses in written agreements. Indeed no issue is made of this by the Defendant. The submissions of the Claimant have been well crafted and are founded on solid principles. They do not derogate from the general principles applicable in relation to the grant of interim injunctions as set out above but they augment the well known principles particularly in a case such as this where the main issue is predicated upon the assertion of the right of a party to a contract to arbitrate pursuant to an arbitration clause contained therein. As a consequence this court is of the view that it is well within its remit to grant injunctive relief in a case such as this where the basis for such relief is that of protecting or asserting that legal right. 28. This court has therefore directed itself in terms of the applicable authorities set out above in respect of both the general and specific principles and will therefore proceed to make its determination accordingly. SERIOUS ISSUE TO BE TRIED 12 P a g e

13 29. The main issue raised within the four walls of the claim relates to the appointment of an arbitrator. The Claimant claims that by Clause 3 (b) page 11 of the 1975 lease, the lease contained a dispute resolution provision which made it mandatory for the parties to the lease to refer any question, difference or dispute which arose between the parties touching the construction of any clause or the rights, duties or liabilities of the parties to two arbitrators in accordance with the Arbitration Act Chapter 7: The Claimant has submitted that the dispute to be solved at arbitration could be crystallized in the following terms: Is the CDA in breach of covenant by failing to grant to the TSCL a new lease of the demised premises for a further term of 30 years to commence from the date of the arbitrator s decision, and if so, can CDA be ordered to commence the negotiations afresh. 31. According to the Claimant, the background shows that at a meeting on the 6 th September, 2006, the Defendant agreed that the 1975 lease would be renewed and a draft lease (See FMN 14) was provided to the Claimant by the Defendant. The draft lease stipulated that the demised premises were to be used solely and exclusively for the purposes of operation a factory for processing salt for the local and overseas markets (4e of the draft lease). Such draft contained no commencement date. 32. Subsequently, permission was granted by the Defendant by letter dated the 13 th January, 2012 (See FMN 21) for the Claimant to develop an ice factory using ammonia as a refrigerant on the demised premises instead of erecting a processing plant. 33. The Claimant was provided by the Defendant with another draft lease by letter dated 25 th January 2012 (the 2012 draft lease) (See FMN 22). By letter dated the 22 nd October, 2012 (See FMN 26), the Defendant indicated that it was considering the proposal of the Claimant to operate an ice factory on the premises. 13 P a g e

14 34. By letter dated the 23 rd April, 2013 (See FMN 33) the Defendant wrote to the Claimant requiring it to pay rent in advance in the sum of three million, three hundred and forty thousand dollars ($3,240,000.00). According to the Defendant s letter, Attorneys for the Defendant were preparing a summary of a proposed lease for submission to the Defendant s Board for approval. 35. Negotiations surrounding the draft lease appeared to continued and by letter dated the 28 th May, 2013, the Claimant submitted a revised draft lease (the 2013 draft lease) (See FMN 34) however their request for an option to renew provision was rejected and by letters dated the 4 th and 30 th June The Claimant alleges that the Defendant continued to treat the Claimant as a lessee of the demised premises after the expiration of the 1975 lease. On the 30 th June, 2009 the Defendant approved and consented for the port at the demised premises to be upgraded at the Claimant s expense. A letter of appreciation dated the 22 nd February, 2011 (See FMN 11) was sent by the Defendant informing the Claimant that it looked forward to partnering with the Claimant in the future. Relations subsequently broke down between the parties, the Defendant alleging that there was no dispute to arbitrate and calling on the Claimant to vacate. Re-entry thereafter followed. 37. The Claimant is therefore alleging that even if they were in breach of particular covenants, the Defendant waived such breaches by their clear representations and actions. That in so doing, they treated the lease as subsisting and as a consequence, the Claimants were within their contractual right to seek arbitration in relation to the dispute as to renewal under the lease. The Claimant also denies that rent was due and owning on the date that it applied to the Defendant for a renewal of the lease on the 25 th January, 2005 and consequently they were entitled to a renewal of the 1975 lease since they were not in breach of any of covenant including the covenant to maintain and repair. This is of course disputed by the Defendant who says that rent was due and owing at the date of re-entry. This according to the Defendant was one of the reasons for the re-entry itself, namely a 14 P a g e

15 breach of the covenant to pay rent. The court notes that this is a factual issue that is dependant on the evidence before the court. The evidence appears to show that rent was in fact accepted after the expiry of the lease for a considerable time but that sometime thereafter, the Defendant refused to receive the rent which was tendered but the evidence must be properly explored at trial for the court to make such a finding. But these are the issues raised by the Claimant. DISPUTE The Claimant s submissions 38. The Claimant submits, that Dispute was widely defined in the lease to include the construction of any clause herein contained or the rights, duties or liberties of the parties in respect of any question difference or dispute which arise between the parties. 39. Further, the submission was made that the word dispute has been given a wide meaning by the Courts. In International Arbitration Law and Practice 3 rd Edition by Sammartano, the learned author at page 150 paragraph 6.1 stated: The term dispute is broad enough to include any difference, whether raised formally or merely the result of an exchange of correspondence that shows that the parties disagree on a specific claim, on an issue of law or on a point of fact related to their relationships. 40. The learned authors also referred to a High Court judgement of Singapore, Jiangsu Hantong Ship Heavy Industry Co. Ltd v Sevan Holding I Pte. Ltd (2009) SGHC 288 which affirmed that: courts will interpret the word dispute broadly. As a consequence, they will find that there is a dispute unless the defendant has unequivocally admitted that the claim is due and payable. 15 P a g e

16 41. In Arbitration Law by Robert Merkin, 1991 at 4.5, the learned author notes that the meaning of the word dispute in an arbitration clause will depend upon whether it is used alone or whether it is qualified. The author also observed that the widest form of arbitration clause will cover all or any disputes between the parties and cited Re Hohenzollern Act for Locomotivbahn and City of London Contract Corporation LT 596, a case where the dispute related to the goods supplied and plainly fell within the any dispute clause, at page 597, Lord Esher in the Court of appeal expressed the view that the wording covered all disputes that many arise between the parties in consequence of this contract having been entered into. 42. The Claimant also submitted that it was the Judge or the Arbitrator who would determine the question of where there is a dispute which would activate the arbitration provision. In Merkin (supra) at 4.1. it was noted that arbitrators did not determine whether there was a dispute, that is a matter for the Court. It was stated: Arbitrators are, within one exception, capable of being given the power to determine conclusively the legal consequences of all of these matters. The one exception to hear the dispute, a question which most commonly arises with regard to the validity of the underlying contract but which may also arise in, for example, construing the validity and scope of the arbitration clause or in determining whether there is a dispute between the parties. It was submitted that it will therefore be the duty of the Court at the trial to determine whether there exists a dispute between the parties to activate the arbitral process as stated in the Claim Form and Statement of Case. 43. Learned Senior Counsel for the Claimant further submitted that the Arbitration Act in the First Schedule at paragraph 4 identifies certain implied provisions in the arbitration agreement and states; 16 P a g e

17 If the parties to an arbitration agreement between whom differences have arisen are unable to agree as to the terms upon which such differences shall be submitted to arbitration, any party may apply to a Judge in Chambers to settle the terms of reference. 44. The Claimant therefore submits that the requirement of the Defendant by letter of the 28 th May 2013, that a lease be executed at an annual rent of $1,080, with a lump sum payment of $3,240, in advance was wholly unreasonable, penal and inconsistent with the promises made to the Claimant in the 1975 lease that renewal was to be on similar terms of the original lease. This according to the Claimant is the substance of the dispute to be arbitrated. The Defendant s submissions 45. Learned Senior Counsel for the Defendant is his usual forthright manner expressed to the court very early in his submissions that he had no quarrel with the law relied on in general. He stated that although the Defendant is saying that there is no dispute, it does not mean that there is a serious issue to be tried. Further that even if the court was to conclude that there was a serious issue to be tried, the circumstances of this case mitigated against the exercise of the discretion to continue the injunction. Finally, he accepted that the court s jurisdiction to grant such an order was also to be found in the Arbitration Act. 46. With specific reference to the test of the serious issue to be tried, Learned Senior Counsel submitted that the Claimants had to show that there is a serious issue to be tried in relation to the right of the Claimant to stop the Defendant form re-taking possession of the premises. According to the Defendant, the right to arbitrate under the contract cannot form the basis for injunctive relief to prohibit the Defendant form obtaining possession. It argues that the right that the Claimant is seeking to protect is a right to possess or occupy the premises and therefore it must show a serious issue to be tried in relation to that right. 17 P a g e

18 47. Therefore, the Defendant argues that there is no serious issue to be tried in relation to the Claimant s right to possession. The fact that there may be a difference as to whether a dispute exists cannot form the basis for a successful submission that there is a serious issue to be tried as that issue must relate to possession. The Defendant says that this is the case for several reasons. Firstly, there was no duty on the Defendant to negotiate on good faith; secondly, the draft lease was one subject to contract and could not form the basis of a representation whether implied or expressed that the parties had agreed on a lease or that a lease would in fact be granted. The defence also responded to the issue of legitimate expectation but this court finds that legitimate expectation is not an issue in this case, this not being a public law matter. Further, the Claimant has stated quite clearly that legitimate expectation forms no part of its claim. (The issue raised by the Claimant was in fact that of an expectation of the grant of a new lease having regard to the treatment of the Claimant as a tenant by the Defendant and representations made by the Defendant). 48. In that vein, attorney for the Defendant then took the court through the affidavits in an attempt to demonstrate that the negotiations between the parties were just that, negotiations only and therefore the acts associated therewith did not confer unto the Claimant a right to possession of the premises. The Defendant in so doing proffered that the negotiations were not about renewal of a thirty-year lease but about the grant of a new lease. The lease therefore having expired, the Claimants could claim no right to possession. Finding on the issue 49. Respectfully, the court cannot accept the submissions of the Defendant in that regard. The position articulated in respect of the relationship between the right to possession and the test of serious issue to be tried is simply not sustainable. Injunctive relief is an equitable remedy aimed at protecting the right of the applicant in such a form which 18 P a g e

19 gives more than mere illusory protection to the right claimed. In most cases, the form of the injunctive relief falls squarely within the ambit of the claim but in others, the nature of the injunctive relief bears proximity to the claim in so far as it is necessary to maintain the status quo or to enforce a right set out in that claim. So that by way of example only, the courts often grant injunctions prohibiting a defendant from molesting or harassing or assaulting a claimant (provided there is evidence of same), even though the substantive claim is for trespass alone and there is no claim for assault. In so doing the equitable remedy is used to support and give effect to the substantive claim. So that the remedy and the substance of the claim are not inextricably linked. 50. So that the court does not accept the submission of the Defendant that the court s determination of whether there is a serious issue to be tried in relation to the right of possession by the Claimant is the main criteria in this application. In the court s view, the right to arbitrate may equally entitle a Claimant to seek an equitable remedy from the court by way of a suitable order which gives effect to the protection of that right even if the relief granted is not that which is directly sought in the claim. 51. In the court s view, this Claimant has clearly demonstrated that there are serious issues to be tried. The list while not exhaustive is as follows; a. Whether the Defendant continued to treat the Claimant as a tenant holding over under the terms of the 1975 lease thereby entitling the Claimant to invoke the Arbitration clause contained therein. b. Whether the notice to Arbitrate sent by the Claimant to the Defendant under the provisions of the 1975 lease activated the provisions of the Arbitration Act. c. Whether, the issue of the non-renewal of the lease amounts to a dispute in law and if it does whether same falls within the parameters of the Arbitration Clause in the 1975 lease. d. The terms of reference for the Arbitrators if the answer to issues a,b, and c above are in the affirmative. 19 P a g e

20 e. Whether the Claimant was entitled to remain in possession on the date it was dispossessed and therefore whether trespass was committed by the Defendants. 52. The court is of the opinion that these issues are serious issues to be tried and that the claim is not a frivolous one. The Claimant s case appears to be, that pursuant to the Arbitration clause in the lease, it issued a Notice of Dispute, it having been treated as a tenant under the 1975 lease long after its expiry and that the Defendant has refused to arbitrate. It claims that the dispute is one which ought to properly come before an Arbitrator as agreed to in the lease which forms the basis of the Claimant s tenure as a tenant holding over. As a consequence, the Claimant has demonstrated that the issue of whether it operated under the terms of the 1975 lease and whether it was treated as a tenant holding over and therefore entitled to invoke the arbitration clause is one which must be decided by the court based on the exploration and consideration of all the evidence. It is not for this court to decide whether the Defendant breached the terms of the 1975 lease by failing to renew the lease on similar terms or whether the principle of waiver applies to the circumstances of this case. This court s determination at trial is limited to whether an arbitrator should be appointed. The evidence put before this court by both sides on the issue appears to certainly suggest that the Claimant s case taken at its highest is a good one. The arguments of the Claimant on the issue of the wide interpretation to be given to the term dispute in Arbitration agreements (supra at paragraphs 38 to 41) holds much merit in the courts view. So too does the Claimant s submission that it is for the High Court to determine whether a dispute does in fact exist when the parties are not ad idem on that issue (paragraphs 42 and 43 supra). There are however many other factors for this court to consider should this claim be tried but those are matters for full trial and the court ought not to make any finding thereon at this stage. 53. The court wishes to add that it is of the view that there is also a serious issue to be tried in relation to the issue of promissory estoppel but this issue is equally one that requires full ventilation at trial. 20 P a g e

21 Where does the greater risk of injustice lie, in granting or refusing the injunction. 54. The Claimant alleges that substantial amounts of money were spent by the Claimant as a result of the representations contained in the lease as they relate to renewal and representations made by the Defendant. Three months before the expiration of the said lease and with the approval of the Defendant, the Claimant purchased and installed a fifty two tonne link belt crane and processing plant at a cost of Nine Hundred Thousand dollars ($900,000.00). Further, as a result of such representations, the Claimant spent some Seventeen Million dollars ($17,000,000.00) in improving the demised premises and constructing amenities, installing equipment and constructing docking facilities and a building which cannot be removed or dismantled without destruction of the items or buildings. It is also the Claimant s case that when the Defendant re-took possession of the premises approximately thirty workers were displaced. 55. The Claimant submitted that in light of the substantial amounts of money spent on the demised premises as a result of the promises and assurances given by the Defendant to renew the 1975 lease, it would be unconscionable for the Defendant to renege on its renewal of the said lease. The Claimant also produced the necessary Town and Country approvals for the expansion of his salt company. 56. The Claimant also submitted that damages would not be an adequate remedy. In the event that the Claimant is evicted, it would not be able to return to the said premises as the Defendant proposes to lease the premises out to a new tenant and therefore its business as a salt manufacturer and distributor will be destroyed. In that regard, the Defendant s evidence as contained at paragraph 74 of the principal affidavit of Joycelyn Hargreaves filed on the 26 th March, 2015 is: The CDA s Board has already approved Kaizan Environmental Services (Trinidad) Limited as the new tenant for the premises. 21 P a g e

22 57. The Defendant has submitted that the effect of the injunction if ordered to continue would be to permit the Claimant to occupy premises rent free and deprive the Defendant of its entitlement to financial compensation for the use of its premises and use of the premises itself. 58. Further, that the conduct of the Claimant must be examined in that they have used the premises as a port without the approval of the landlord. 59. Further, the Defendant has given evidence that it is unable to carry out its functions and responsibilities as landlord of the Chaguaramas Peninsula and the premises. That the loss of revenue of commercially viable seafront property is immeasurable, that the security of the Chaguaramas Peninsula is compromised by the denial of access by the Claimant and finally that the Board of the Defendant has approved Kaizen Environmental Services (Trinidad) Limited as the new tenant of the premises. 60. In performing the balancing exercise, the court has taken all of the above factors into consideration. It notes that the allegation of a threat to the security of the peninsula seems largely unsubstantiated. Further, that no lease between the Defendant and Kaizen has been put before the court so that it appears that there is no pecuniary or other substantial loss to be suffered by the Defendant should the injunction be continued. 61. In relation to the likely harm to be suffered by the Claimant should the court refuse the application to continue, it is pellucid that the Claimant may suffer the catastrophic closure of its business resulting in many workers being put on the breadline. The potential consequences to the Claimant far outweigh those likely to be suffered by the Defendant which is a state incorporated entity. In those circumstances damages certainly cannot and do not amount to an adequate remedy. The refusal of the order to continue the injunction is likely to cause irremediable prejudice to the Claimant as opposed to the inconvenience to be meted out to a state incorporated entity by it being out of possession of one of it s properties in the interim. In the court s view the balance of justice in this case must lie heavily in the Claimant s favour and the court so finds. 22 P a g e

23 62. In relation to the issue of possession of property without money payable for occupation in the interim the court will make a suitable order which may assuage the potential consequences of its order in that regard. 63. The order of the court will therefore be as follows; a. The injunction granted on the 20 th March 2015 is to continue until determination of the claim. b. The Claimant shall deposit into an interest bearing account with a commercial bank within Trinidad and Tobago, all sums it claims to be payable as rent due and owing to the Defendant from the 20 th March 2015 and continuing thereafter for each and every month until the determination of the claim or until further order. c. The details of the account into which the sums are deposited by the Claimant pursuant to the terms of this order shall be provided to Attorney for the Defendant by Attorney for the Claimant upon the first deposit being made and thereafter at the end of every six-month period. d. The costs of this application shall be assessed and paid by the unsuccessful party to the claim to the successful party upon determination of the claim in default of agreement. Dated the 30 th September 2015 Ricky Rahim Judge 23 P a g e