Charan v Labasa Blue Metal Supplies Ltd [1997] FJHC 131; Hbc0056d.97b (12 September 1997)

Fiji Islands - Charan v Labasa Blue Metal Supplies Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

CIVIL ACTION NO. 56 OF 1997

BETWEEN:

RAM CHARAN
s/o Sampat
Plaintiff

AND:

LABASA BLUE METAL SUPPLIES LIMITED
1st Defendant

AND:

THE DIRECTOR OF LANDS and
THE ATTORNEY GENERAL OF FIJI
2nd Defendant

Mr. A. Kohli for Plaintiff
Mr. A. Se First Defendant

DECISION

This is the First Defendant's (hereafter referred to as the "Blue Metals" - 'BM') summons filed 26 June 1997 praying for orders as follows:

"i) that the injunction granted by this Honourable Court on the 14th day of August 1997 be dissolved on the grounds contained in the affidavit of the defendant and filed together with this application.

ii) An Injunction restraining the Plaintiff his servants or agents or otherwise from interfering, stopping, and blocking the defendant, his servants, agents, workman or any of them by any means howsoever or any manner howsoever from using public roads, state access to the defendants land contained in Approval Notice of Lease known as Valebasoga Part of (Parts of lots 1, 2 and 11, 12 and 13 T1220(L) in the District of Labasa in the province of Macuata until the final determination of this action.

iii) That the Plaintiff give such security of cost for the defendants costs of this action or this proceedings as this Honourable Court may deem just."

The learned counsel for BM was given liberty to pursue said item (iii) relating to security for costs at a later stage should he so decide to do so.

Background facts

On 13 August 1997 the Plaintiff issued a Writ of Summons against the defendants making various claims.

At the same time the Plaintiff applied for an interim injunction which was granted in the terms that "the first defendant his servants and or agents be restrained from entering, grading or in any way interfering with the Plaintiff's peaceful possession of land in LD Reference No. 4/9/3927". The summons was returnable at Labasa High Court on 26 August 1997.

In his affidavit in Support of his summons for injunction the Plaintiff alleges that some twenty years ago he came onto the land in question and was "assured" by an officer in the Lands Department that he would be granted tenancy over the area he had "chosen". Thereafter he erected an iron and bamboo house and cleared about five hectares of the land which had upon it "grown up trees and bushes". He also planted vegetables on part of this land.

The Plaintiff says that he was promised a lease of the area occupied by him but no lease was ever issued despite payment by him of $10.00 being application fee. He was unable to produce any receipts as they were destroyed during hurricane "Martin".

He said that on 7 August 1997 BM bulldozed part of the land as the company has been granted an Approval Notice of Lease of the land for the purposes of a quarry.

He further says that the 'lease' granted to BM is subject to condition that it will be responsible for the cost of "relocating the squatters directly affected by the issue of the quarry lease".

The Managing Director of BM, Mohammed Abdul in his affidavit in support of its Summons says, inter alia, that the Plaintiff is a squatter over no more than five hundred square metres of the land in "issue" and that "all occupation by the Plaintiff is unlawful without any written consent from the Director of Lands".

The Managing Director agrees that by virtue of paragraph 16 of the terms and conditions of the said lease, the First Defendant was to be responsible for the cost of relocating the squatters.

He further states that his company is suffering inconvenience loss and damages. In paragraphs 47 to 49 he states:

"47. THAT the Quarry lease has been issued to the First Defendant on the basis that there are major road developments in Vanualevu which have been hampered by obstruction of this similar nature.

ass=MsoNormaNormal style=margin-left:36.0pt>48. THAT First Defendant has several contracts for supply of crushed metal to the government of Fiji and other organizations and the First Defendant will not be ableulf fulfil its obligation until the injunction now subsisting is dissolved and the Plaintiff is restrained from interfering the First Defendant.

ass=MsoNormal style=margin-left:36.0pt>49. THAT the Plaintiff is a squatter who has no permanent employment or income or any assets and would not be able to either pay any costs damages or costs incurred by the First Defendant."

Consideration of the issue

It is against the above background that I have to consider the applications before me.

As stated earlier, after the issue of the writ the Plaintiff moved ex parte for an interim injunction which was granted. Thereafter on the returnable date the Plaintiff applied for the continuation of the said injunction while by the said Summons the Defendant applied, inter alia, for its discharge.

The law pertaining to interim injunctions is laid down by the House of Lords in AMERICAN CYANAMID CO v ETHICON LTD [1975] UKHL 1; (1975) A.C. 396. Injunctions are an equitable remedy and are within the Court's discretion. Injunction will be refused if the Plaintiff can be fully compensated by an award of damages. In LONDON & BLACKWELL RAILWAY CO v CROSS [1886] UKLawRpCh 7; (1886) 31 Ch.D. 354 at 369 LINDLEY L.J. said: "The very first principles of injunction law is that prima facie you do not obtain injunction to restrain actionable wrong for which damages are the proper remedy".

In considering the issue before me I have borne in mind the principles governing the "balance of convenience" as stated by LORD DIPLOCK in the CYANAMID case (supra) where at p.510 His Lordship said:

"My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff's legal right is made on contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesis the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do."

He goes on to say:

"The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where the balance of convenience lies."

Here I have a case on the one hand of the Plaintiff who alleges that he was assured that he would be given a lease but has not produced any evidence of a documentary nature to establish a case. On the other hand I have the first defendant who has an Approval Notice of Lease from the second Defendant. There is a question of evidence involved and without hearing evidence I would not like to say anything about the Plaintiff's chances of success either fully or partially. I adopt the following words of LORD DENNING in HUBBARD v VOSPER (1972) 1 All E.R 1023 at 1029:

"....In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done."

Here, for the reasons the Plaintiff has given in his affidavit in support of injunction he wants the injunction to continue until the trial of this action. On the whole of the affidavit evidence it appears that the Plaintiff could not have been given six hectares of land which he claims as a "squatter" (the Plaintiff has himself used the word "squatter" in his own case in his affidavit) to be entitled to after the alleged assurances by the second defendants. If a lease was to be given it would have been a small area which may have been allotted to him. Therefore in his claim, for the purposes of the present application, his demand to occupy the five to six hectares of land is excessive and unreasonable as appears from the affidavit evidence before me.

I should also mention at this stage that Court and counsel agreed to visit the site in question for the Court to see for itself the topography of the area, the Plaintiff's house site and the land comprised in the Notice of Approval of Lease. The second defendant (representative of Director of Lands) who was present on site visit offered to relocate the Plaintiff on any other piece of land away from the 'lease' land and to grant him a lease as well. Similarly, Mr. Abdul agreed to relocate him at his own expense and provide him with, inter alia, water and electricity and even employ him.

There was no agreement on these matters when we resumed hearing in Court after visiting the site and it was agreed by counsel that I hear them on their application on another day. This is what I did on 2 September 1997 at Suva.

Looking at the whole case, the question is "where does the balance of convenience lie?" Sir ROBERT in CAYNE v GLOBAL NATURAL RESOURCES plc (1984) 1 All E.R. 225 at 237 describes the process thus: "the balance of the risk of doing an injustice better describes the process involved". Similarly, in FRANCOME v MIRROR GROUP NEWSPAPERS (1984) 1 W.L.R. 892 at 898E DONALDSON M.R. succinctly expressed the views which are apt here and fit to be applied to the facts and circumstances of this case. He said:

"I stress once again, that we are not at this stage concerned to determine the final rights of the parties. Our duty is to make such orders, if any, as are appropriate pending the trial of the action. It is sometimes said that this involves a weighing of the balance of convenience. This is an unfortunate expression. Our business is justice, not convenience. We can and must disregard fanciful claims by either party. Subject to that, we must contemplate the possibility that either party may succeed and must do our best to ensure that nothing occurs pending the trial which will prejudice his rights. Since the parties are usually asserting wholly inconsistent claims, this is difficult, but we have to do our best. In so doing we are seeking a balance of justice, not convenience."

As stated already the Plaintiff is a "squatter"; he has no lease of the land in question although he says he was promised one by an officer in the Office of the second defendant. He has produced no documentary evidence of any kind in support of his to claim possession. As to who is a 'squatter' and the law as to squatters have been fully

ATTORNTTORNEY-GENERAL v HARDEO SHANDIL (20 FLR 93 at 94 et seq.) with particular observation of LORD DENNING in >McPHAIL v PERSONS UNKNOWN (1973) 3 All E.R. 393 at93 at pages 395 and 396. In SHANDIL the Court concluded that:

"the defendant being a squatter on the land should have vacated it when he was required to do so. Equally I can find no substance in the defendant's claim that there are important issues in this case which should be the subject of a trial. In my view this is a simple case of trespass on land belonging to the Crown. In the circumstances I have no alternative but to grant the application and order possession to be given to the plaintiff."

On the other hand we have the first defendant who is a lessee under Notice of Approval of Lease from the Crown (the second defendant). The BM's title is not in issue and he would therefore be entitled to resist any application to an injunction and therefore it is now asking for the discharge of the interim injunction whether or not the Plaintiff's occupation does any harm to it or not but in this case how BM is affected is as stated in Managing Director's affidavit.

The Plaintiff claims in his affidavit that he has the right to remain on the land. In such a situation the court has to consider the application of the principles set out in CYANAMID case (supra) [1975] UKHL 1; (1975) AC 396 in relation to the grant or refusal of an interlocutory injunction. There LORD DIPLOCK at p.407 stated:

"The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial."

The above principles relating to injunctions have to be applied to the affidavit evidence in this case bearing in mind that the Plaintiff must show some evidence of his right.

On the basis of the affidavit evidence before me I am not convinced because of the Plaintiff's status that there is an arguable case for the Plaintiff and that there is a serious issue to be tried. That being the situation the question of balance of convenience, status quo and damages being an adequate remedy do not arise. However, in all the circumstances of this case, doing the best I can and "seeking a balance of justice" I propose to adopt a certain course which will allow the Plaintiff to prove his claim in the trial of this action as will let him remain on the land until further order of this Court.

In the outcome, for the above reasons I do not think it wise to disturb the status quo except to the extent I state hereafter. But before I depart from the consideration of the issue before me it would do well for the Plaintiff to seriously consider the offers made by the defendants as stated above to relocate him in the light of the circumstances prevailing in this case although for the Court without hearing it would be difficult to say anything about the chances of the Plaintiff succeeding in this action. For the reasons given, I shall grant the Plaintiff a qualified injunction on the applications before me.

The interim injunction granted herein on 14 August 1997 is varied to read and it is so ordered that the first defendant its servants or agents be restrained from entering, grading or in any way interfering with the Plaintiff's possession specifically of the land on which the house is erected and an area of land 3 chains all around it being part of land comprised in LD Reference No. 4/9/3927 until further order of this Court with liberty to either party to apply for a proper demarcation of the boundary stated. The costs are to be costs in the cause.

D. Pathik
Judge

At Suva
12 September 1997

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