Timbers (Fiji) Ltd v Native Land Trust Board (Application 1) [1997] FJHC 133; Hbc0344d.97s (12 September 1997)

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

ACTION NO. HBC 0344 OF 1997

BETWEEN:

TIMBERS (FIJI) LIMITED AND ANOTHER
Plaintiffs

AND:

NATIVE LAND TRUST BOARD,
JOLAME NALAWA, SAKEO VELINAKORO AND
WAISAKE WAIWAIDILO
Defendants

P.I. Knight for the Plaintiffs
Lusiana S. Gu for the First Defendant
I. Fa for the Second and Four Fourth Defendants
No appearance for the Third Defendant

Date of Hearing: 8th September 1997
Date of Ruling: 12th September 1997

RULING ON APPLICATION TO DISSOLVE INJUNCTION

On 18th of August 1997 on the Ex-parte Motion by the Plaintiffs I ordered that the Second, Third and Fourth Defendants forthwith remove a roadblock constructed on the roadway known as Nabukelevu Road over which the First Plaintiff has a licence dated 5th July 1989 issued by the First Defendant.

I further ordered that the Second, Third and Fourth Defendants either by themselves or their servants or agents or otherwise be restrained from erecting a roadblock on or in any way interfering with the free passage with or without vehicles of the First Plaintiff, its servants, agents or licensees over the roadway until further order. I also reserved liberty to apply.

All Defendants were served with a copy of my order and all other documents issued in these proceedings and they all acknowledged service in the appropriate manner. The acknowledgment of service on behalf of the First Defendant was signed by the solicitor for that Defendant; the acknowledgment on behalf of the remaining Defendants was signed by the solicitors for those Defendants.

On the day of such acknowledgment Messrs Fa & Company issued a Summons on behalf of the Second and Fourth Defendants, not be it noted also, on behalf of the Third Defendant, and I heard that Summons on the 8th instant.

The First Plaintiff is the licensee under a licence dated 5th July 1989 issued by the First Defendant under which the First Plaintiff is granted the right to transport logs over the roadway referred to therein which runs between the main Queens Highway and Nabukelevu in the Province of Serua.

In an affidavit sworn in support of its application for an interim injunction, Stuart Gilmore Styche the General Manager of Fenning Pacific (Fiji) Limited, the parent company of the First Plaintiff, deposes that on the 5th of August 1997 the Second, Third and Fourth Defendants either individually or together constructed or caused to be constructed a roadblock, comprising a substantial locked gate across the roadway (hereinafter referred to as such), close to its junction with the Queens Road. He says that the gate effectively blocks heavy trucks from using the roadway and their gaining access to and from a forest Concession granted to the First Plaintiff by the First Defendant and the Conservator of Forests and thereby prevents the removal of logs from the Concession. He says that an opening beside the gate has been left for light vehicles to drive through.

He further says, and this is admitted by the Second Defendant, that the land comprised in the Concession is owned inter alia by Mataqali Naviyaraki of which the Second Plaintiff is the Turaga ni Mataqali and by Mataqali Ketenatukani of which the Second Defendant is the Turaga ni Mataqali.

The roadway is built on land owned inter alia by Mataqali Ketenarukasara and Mataqali Sema. The roadblock is constructed on that part of the roadway owned by Mataqali Sema. This latter allegation is admitted by the Fourth Defendant.

According to Mr. Styche the First Plaintiff has been logging in that part of the Concession owned by the Second Plaintiff. There are currently logs with a volume of approximately 500m which have been felled in this area in July and August 1997 and are waiting to be removed along the roadway to the timber mill owned by the First Plaintiff at Wainunu. Mr.Styche estimates the costs associated with the felling of these logs including royalties, premiums, forestry fees and contractors charges as approximately $31,000.00.

He also says that the blocking of the roadway has resulted in the First Plaintiff's timber mill at Wainunu being closed down because of a lack of logs and that the costs involved in the closure of the timber mill are approximately $5,300.00 per day with the workforce on half pay. He says that on half pay the workforce loses total wages of $750.00 per day. If they have to be laid off they lose a total of $1,500.00 per day.

The First Plaintiff alleges that the blocking of the roadway has also resulted in its inability to pay to the Second Plaintiff the royalties on the timber from the part of Concession owned by the Second Plaintiff which was being logged immediately prior to the construction of the roadblock. These royalties amount to approximately $40,000.00 per month.

The First Plaintiff also says that it has recently upgraded the roadway including the construction of a river crossing at an approximate cost of $190,000.00 and that to date the First Plaintiff has invested approximately $16,000,000.00 in developing its sawmilling operations in the area.

It is important to record these allegations by the First Plaintiff because if true they show that the Plaintiff has a substantial undertaking in the area and that the erection of the roadblock is causing it to lose much money.

There has been a number of roadblocks set up on the roadway in the last 17 months, all of which have resulted in litigation in this Court. The first was in April 1996 as a result of which the First Plaintiff issued proceedings in Suva High Court Action HBC 147 of 1996 against the First Defendant as First Defendant, the Second Defendant as Second Defendant and Peceli Tuisawau the son of the Fourth Defendant, as Third Defendant and sought an interim injunction requiring the roadblock to be removed. In a decision delivered on 9th September 1996 Mr. Justice Scott dismissed the Plaintiff's application for an interim injunction, largely it would appear because the boundary between the two Mataqalis had not been properly and definitively demarcated and that therefore the trees growing in the disputed area should be left where they stand. He also commented adversely on what he called the case being "yet another example of administrative incompetence leading to quite unnecessary legal proceedings".

In November 1996 a new roadblock was set up allegedly by Peceli Tuisawau who on 24th October 1996 issued a Writ against the First Defendant as First Defendant and the First Plaintiff as Second Defendant in Action No. 520 of 1996 in which he seeks, inter alia, an order that First Plaintiff's licence is null and void. Defences were filed by both Defendants in November 1996. An examination of the Court file reveals that there will be a Summons for Directions for Discovery of Documents on 17th September 1997. The First Plaintiff states that the roadblock set up in November 1996 was removed in early January 1997.

In February 1997 a new roadblock was set up apparently by members of the Mataqali Ketenarukasara. This roadblock was removed during April 1997.

After the last roadblock was constructed on 5th August 1997 Mr. Styche wrote to both the First Defendant and to the Navua Police advising them of the situation and seeking their assistance. The general burden of these letters is that the constant disruptions and lawless behaviour evinced by the erection of the roadblocks has caused the First Plaintiff substantial loss and placed in jeopardy close relationships which the First Plaintiff has built up with leading joinery manufacturers in Fiji who depend on reliable supply from the Plaintiff to meet contract commitments.

The letters also allege that not only the Plaintiff's own survival, but the credibility of the Fiji timber industry is threatened by what Mr. Styche describes as "land owner chaos".

In support of their Summons to have the injunction dissolved the Second and Fourth Defendants have sworn affidavits and the First Defendant has also by leave sworn an affidavit which supports the First Plaintiff's allegation concerning the Concession which it says is valid until the 30th of December 2004. The First Defendant also deposes that on the 5th of July 1989 the First Defendant after obtaining the relevant land owners' consent where applicable, also granted a roading licence to the First Plaintiff, valid until the 31st of December 2004 for the use of the access Nabukelevu Road.

I turn briefly now to the affidavits filed in opposition by the Second and Fourth Defendants. They complain of non-disclosure of material facts by the First Plaintiff in particular to Action No. HBC520 of 1996 and HBC232 of 1995. The first allegation can be dismissed immediately because it is referred to by Mr. Styche in paragraph 13 of his first affidavit sworn on 12th of August 1997.

It is also alleged that the Plaintiff failed to disclose in its first affidavit Action No. HBC232. As to alleged non-disclosure of Action No. HBC232 of 1995 it is true that the Plaintiff did not disclose this in its first affidavit but has admitted that such an action is currently before Fatiaki J. in the second affidavit of Mr. Styche sworn on the 1st of September 1997. In the latter action the Plaintiffs who are members of Yavusa Burenitu, of which the Second Defendant is the head of a proprietary unit within the Yavusa, have taken proceedings against the First Plaintiff and the First Defendant over the Navutulevu Concession.

The Originating Summons in this action was issued on 10th May 1995 by the solicitors for the Second, Third and Fourth Defendants in the instant action. In March 1996 the First Defendant issued a Summons alleging that the Plaintiffs have no locus standi but as yet no ruling has been given by His Lordship on this.

The Second and Fourth Defendants allege, without substance as I find, that the First Plaintiff has no right to log in the area concerned because the agreement giving it that right is null and void. This is a reference to a letter dated 20th January 1994 from the First Defendant to the First Plaintiff alleging that the First Plaintiff had committed a breach of a term or condition of the logging agreement by entering into a Scheme of Arrangement contrary to the Forest Concession Agreement and that as the breach was not capable of being remedied the agreement was thereby terminated.

This allegation is repeated in the affidavit of the Second Defendant and again there is no substance in it as is proved to my satisfaction by the affidavit sworn on the 2nd of September on behalf of the First Defendant. This annexes a copy of the agreement which shows that the Concession will not be terminated until 30th of December 2004. It is true that the First Defendant wrote the letter of the 20th of January 1994 to the First Plaintiff but the allegation is clearly rebutted by a Deed made on the 16th of May 1995 between the First Defendant and Timbers (Fiji) Limited. I should add here for completeness that a copy of this Deed is annexed to the second affidavit of Stuart Gilmore Styche sworn on the 1st of September 1997.

Recitals (2) and (3) are relevant here. They state that as a result of allegations that the First Plaintiff had committed certain breaches of the Concession the parties have agreed to enter into the Deed to resolve such differences as had existed between the Native Land Trust Board and the First Plaintiff relating to the two Concessions.

Clauses 1, 4(2) and 5 are relevant here.

By Clause 1 the First Plaintiff was obliged to pay, and paid, the sum of $100,000.00 by way of royalties to the Board.

Clause 4(2) states that the First Defendant waives all actual or alleged breaches by the Plaintiff up to the 16th of May 1995 of any of the terms and conditions of the Navutulevu Concession and/or Navua Concession.

Clause 5 states that the parties agree that both Concessions shall remain in force and be binding on the Board and the First Plaintiff in accordance with the terms and conditions of the Deed.

The Fourth Defendant complains that as a landowner he feels very insulted about being used as a scapegoat in this matter. He may well do so but I regret that I have little sympathy for him if he does so feel. The fact is that an illegal roadblock has been erected on land owned by the Yavusas of the Second and Fourth Defendants as I consider they must know. My reason for saying that should be obvious, namely that until this Court or any Appellate Court of Fiji holds that the First Plaintiff has no rights under its agreement with the First Defendant the erection of any obstruction to access by the Plaintiff to the land in its Concessions is patently illegal.

In his submissions on behalf of the Second and Fourth Defendants counsel alleged that I should not entertain this matter any further but refer it either to Mr. Justice Scott or await the decision of Fatiaki J. on the motion on locus standi presently before him.

In my judgment these two submissions and most of the affidavits of the Second and Fourth Defendants are red herrings designed to distract this Court's attention from the issue before it. This is not the legality or illegality of the agreement between the First Plaintiff and the First Defendant but, and only but, whether an illegal roadblock erected on the 5th of August 1997 barring access to the First Plaintiff's Concession should be removed. There is no such issue either before Scott J. or Fatiaki J at the present time and I consider that I am perfectly capable of dealing with it here.

It was submitted to me by counsel for the Second and Fourth Defendants that the First Plaintiff should have disclosed all these other proceedings in its first affidavit as the basis on which it sought the injunction. I reject this submission. I do not consider it necessary for the First Plaintiff to have referred to the proceedings before Fatiaki J. in his first affidavit because they have nothing to do with the erection of the present roadblock. As far as the First Plaintiff is concerned I repeat what I said above that it is entitled to rely on the agreement it has with the First Defendant and in my view had no reason to anticipate that the validity of its agreement would be called in question by the Defendants. Furthermore the fact is that all these proceedings have now been disclosed by the Plaintiffs and I am satisfied that none of the Defendants has been prejudiced by them not being mentioned earlier.

Counsel for the Second and Fourth Defendants argue that the First Plaintiff should return to Scott J. and attempt to persuade him that the circumstances have changed since his decision of 9th September 1996.

I do not agree because as I have endeavoured to state such an application would have no relevance to the issue then before him because now the Plaintiff is faced with a totally new roadblock so that the circumstances have certainly changed in the last 12 months.

Both Defendants are at pains to claim that they do not know who erected the present roadblock. If that be so, but I hasten to add I have serious reservations about it, then in my view they can have no objection to the block being removed. Certainly in the absence of any denial by the Third Defendant it is reasonable to assume that he erected or caused to be erected the roadblock and that the order made against him to remove the roadblock must stand. I find it disturbing as a Judge to note that despite the existence of a number of actions in this Court concerning the validity of the Plaintiff's licence someone has taken the law into its own hands rather than await this Court's decisions on the validity of the licences.

If this activity is allowed to continue then I am convinced that it can only send the wrong message to the people of this country and to potential investors. Only some seven weeks ago the Prime Minister criticised people, mainly Fijian landowners, who took the law into their own hands and stated that this must have a detrimental effect on this country's wish to encourage investors both local and from overseas. There have been too many instances of this in the past, two of which come to mind being in November 1992 when villagers from Cuvu lit fires at the approach to the Fijian Resort on the Coral Coast and obstructed the free movement of people and guests and the other in late 1995 when landowners from Namoli Village in Lautoka lit fires and told the Manager of the Paradise Island Resort on Bekana Island to leave the island, in the meantime using resort equipment and facilities which did not belong to them. As the Fiji Times was moved to comment at the time, "Forcefully taking over someone else's property is the law of the jungle and belongs in the dark ages".

I consider those comments apposite here. The fact is that until proved otherwise the First Plaintiff has every right to use the road and the land included in its Concessions and to infringe that right is nothing but a blatant breach of the law which this Court will not condone.

At one stage during preparation of this ruling I was tempted only to make an order against the Third Defendant but on further consideration I believe that the Second, Third and Fourth Defendants must be held responsible for the erection of this roadblock.

In view of the history of these roadblocks apparently erected by the same people I consider it appropriate that orders I made on the 18th of August should stand against all three Defendants. In my view the proper people to sue in this case are the owners of this land namely the Second, Third and Fourth Defendants.

In my judgment the First Plaintiff has shown that it has prima facie a good cause of action and that for the reasons set out in American Cyanamid v. Ethicon [1975] UKHL 1; (1975) AC 396 I refuse to dissolve the injunction. If I should be wrong in this and the Defendants should later prove that they have suffered damage then in my view they can be more than adequately compensated by damages in accordance with the First Plaintiff's undertaking.

However in the light of the further material now before me I order not only that the Second, Third and Fourth Defendants forthwith remove the roadblock in issue but as requested by the Plaintiff's counsel at the conclusion of his argument these Defendants are to be restrained from erecting any further roadblocks to prevent the Plaintiff having access to its Concessions.

I would add that given the status of the Second, Third and Fourth Defendants I find it very hard to believe that at least the Second and Fourth Defendants know as little as they claim about the person or persons responsible for the erection of the roadblock. If they are to be believed in their protestations then in my view it can only show abysmal ignorance of what is going on in their communities. Whatever the position be it is of no help to the First Plaintiff.

In addition to the orders I have now made I also order that the Second, Third and Fourth Defendants pay the First Plaintiff's costs of this application.

JOHN E. BYRNE
JUDGE

Case referred to in ruling:

American Cyanamid v. Ethicon [1975] UKHL 1; (1975) AC 396.

The following case was referred to in argument:

Beese v. Woodhouse (1970) Volume 1 WLR 586.