SB Holdings Ltd v Kumar [1997] FJHC 40; Hbc0059d.96b (20 March 1997)

Fiji Islands - SB Holdings Ltd v Kumar - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

CIVIL ACTION NO. 59 OF 1996 p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> BETWEEN:

SOLDINGS LIMITED
Plaintiff

AND:

1. KAMLESH KUMAR
span lang=EN-GB style="font-family: Times New Roman">s/o Ra/o Ragunath
2. MOHAMMED ABDUL
s/o Sheik Mohammed
3. EMOSI DANIOGO
4. LABASA BLUE METAL SUPPLIES LIMITED
5. DUAVATA CIVIL ENGINEERING LIMITED
Defendants

Mr. H. Nagin he Plaintiff
Mr. A. Sen for the Defendant

DECISION

This is the Plaintiff's applicatir an injunction seeking the following orders pending final inal decision in the case:

1. AN ORDER that thendants be restrained by themselves and/or through their serr servants and/or agents and/or howsoever from interfering with Plaintiff's operations at Vunimoli and Nagata Rivers of extracting river gravel until the hearing and determination of this action.

2. AN ORDER restraining the Defendants by themselves and/or through their servants and/or agents and/or howsoever from extracting or removing any river gravel, sand, stones or lime from the Plaintiff's licensed areas at Vunimoli and Nagata Rivers, Labasa until the hearing and determination of this action.

There is also a Summons by the defendantstrike out the Plaintiff's statement of claim because it isit is "totally misleading is scandalous, frivolous, vexatious", and an abuse of the process of the Court.

Plaintiff's contention:

The Plaintiff (hereafter referred to as the "Company") which is a ld liability company carryinrrying on the business of earth-moving, civil engineering and supply of crushed metal, river gravel and sand was on 9 May 1996 and 9 August 1996 respectively granted by the Director of Lands Licence Nos. 3/96 and 2/96 for the removal of sand, lime and common stones from Vunimoli and Nagata Rivers, Labasa for one year from 8 May 1996 and 6 August respectively. A photocopy each of the said licences were annexed to the Company's affidavit.

It is alleged by the Company that since late Sept 1996 the defendants have been illegally and without any cony colour of right interfering with the Company's operations at Vunimoli and Nagata Rivers. They have also been extracting river gravel from the Company's licensed sites.

Upon complaint to the Divisionaleyor they were warned by the Surveyor to stay out of the area. The defendants had not takentaken any heed of the warning and a letter dated 14 October 1996 was written to the 4th defendant by the Surveyor. They still continue to interfere with the Company's operations resulting in "irreparable loss". As a consequence the Company is unable to fulfil its contracts to supply river gravel and sand.

Defendants' contention

In reply to the Company's affidavit, KAMLESH KUMAR, who is the fnamed defendant swore on afon affidavit on his own behalf and on behalf of the other defendants.

He states, inter alia, that in Civil n No. 408/96 against eight defendants, two of whom are name named in this action, the Company claimed that it was given Licence No. 2/96 for removal of sand at KOROTARI and now in this action it says that he has licence No. 2/96 in respect of Nagata River.

KAMLESH KUMAR traces the history of action 408/96 and concludes by saying that because the Plaintiff already has an injunction by virtue of a licence issued to it in 408/96 this action is "only a duplicity and abuse of process of court". He therefore argues that the licence 2/96 cannot cover Nagata.

He further states that on 7 June 1996 the fourth defendant was d with a licence to extract gravel for one year by the Dire Director of Lands and marked on a Plan coloured green.

The defendants say this action is "scandalous, frivolous, vexatious, abuse of process of Court and is d is an attempt by the Plaintiff to interfere with the 4th and 5th defendants operations who are substantial companies".

The defendants therefore ask that the Coms action be struck out.

Consideration of the issue

As ordered, both counsel made written submissions and I have considerem.

Reference has been made in the submissions to Civil Action No. 408/96 and to applications to Fiji Court of Appeal pertaining to the extracting etc. of gravel from Korotari and Vunimoli Rivers. In 408/96 the defendants were different except for two of them who are also defendants in this action. That action related to licence granted by the Director of Lands in respect of Korotari river under Licence No. 2/96 and did not include Nagata, river under Licence No. "2/96".

I have this dven a decision in that case.

In this case I am merely concerned with licence over Vunimoli and Nagata Rivers.

According to annexure i> of the Company's affidavit and annexure 'B' of defendants' affidavit, both partiearties have a licence over Nagata River for the Removal of sand, lime and common stone. The licence issued to Labasa Blue Metal Supplies Limited (the fourth defendant) is unnumbered but that of the Company is number 2/96. Evidently there is some error in numbering because it cannot be that for Korotari and Nagata the licence bear the same No. 2/96. However, the fact remains that the area for Nagata is demarcated on a plan attached to the licence so there is no dispute which area the licences for Nagata River cover so there is no question of duplicity. Therefore there is no merit whatsoever in the defendants' argument in this regard.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I find that there was a dispute when the ps encroached on each other's boundaries and consequently thly the Director of Lands wrote to Labasa Blue Metal Supplies Ltd on 14 September 1996 (annexure 'c' to Plaintiff's affidavit) pointing out that "you were still removing out gravel from the Nagata area which is licensed to S.B. Holdings Ltd. You are therefore instructed to confine yourself to your licensed area."

If encroachment is the only bone of contention then the only solution is as suggested by the Director of Lands.

It is thereforembent on the parties to confine themselves to their area under their respective licence as e as demarcated in the Plan attached to the Licences.

The Court's decision would be based on the balance of convenience between the parties. In fact each party has a licence over different areas of Nagata River and so long as each confines to its or his area there will be no problem. If there is any dispute about the boundaries of licensed site it should be resolved with the assistance of the Director of Lands instead of wasting the Court's time. However on the facts before me the Company has grounds for its complaint particularly when there is strong evidence that the defendants are encroaching on the Company's licensed area at Nagata River. Similar observations apply to Vunimoli River.

In the grant of interlocutory injunction there are certain guidelines and in deciding whether to grant one or not the Court ought to look at the whole case. The following passage from the judgment of LORD DENNING

in HUBBARD v VOSPER (1972) 2 WLR 389 at p.396 is pertinent to bear in mind in this case.:

"In considering whetherrant an interlocutory injunction, the right course for a ju 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. Sometimes, it is best to grant an injunction so as to maintain the status quo until the trial. At other times, it is best not to impose a restraint upon the defendant but leave him free to go ahead. For instance, in Fraser v Evans [1969] 1 QB 349, although the plaintiff owned the copyright, we did not grant an injunction because the defendant might have a defence of fair dealing. The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules."

I find that in the circumstances of this case the balance of convenience must be exercised in favour of the Company for it is the party which would be most affected by the refusal of the injunction. The other party have nothing to loose if they confine themselves to their own licensed area.

For these reasons the Company is entitled to orders for injunction as prayed and I der. In coming to this conc conclusion I have also borne in mind the following passage from the judgment of LORD DIPLOCK in AMERICAN CYANAMID CO v ETHICON LTD [1975] UKHL 1; (1975) AC 396 at p.406:

"... to prothe plaintiff against injury by violation of his right for wfor 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".

Further the defendants' summons to strike out the Plaintiflaim is dismissed as the application is devoid of merits. Tts. The defendants are ordered to pay costs to the Plaintiff which is to be taxed unless agreed.

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> D. Pathik
JUDGE

At Suva
20 March 1997

Hbc0059d.96b