Mr. Sen for the defendants submits that the basis of the "Plafs claim is that he has a ls a licence while the defendants don't." He says that because the letters from the Lands Department have been considered by Scott J and Fiji Court of Appeal, it is an abuse
of the process of the Court to make this application.
Consideration of the issue
Mr. Sen is arguing that because Scott J. had refused interlocutory injunction before on an ical application and the Fihe Fiji Court
of Appeal has also dissolved the interim injunction, the matter is res judicata and that the same issue cannot be relitigated. He
says that there is also an appeal by the Plaintiff pending in the Fiji Court of Appeal against the refusal of injunction by Scott
J. Further, he says that Motion of Appeal dated 7 February 1996 (should be 1997) has been lodged against the Chief Justices's refusal
of leave to defendant for Judicial Review on 21 January 1997 in Judicial Review No. 27/96.
As far as the matter of Judicial Review by the fifth defendant (Seremaia Ramoce No. 1) is concerned, it dealt firstly, with leave
to file judicial review of the decision of the Director of Lands to issue licence to the Company in this action to extract gravel
from Korotari river and secondly, decision by the Director of Lands cancelling licence issued to the fifth defendant on 13 August
1996 to extract gravel from Korotari river with effect from 13 September 1996. The Chief Justice refused the application for leave
to apply for Judicial Review and Notice of Appeal has been lodged against such refusal.
As I see it, the Company's licen not affected by such refusal. It is still valid and stands as against the defendants who hwho have
no licence at all and this fact has been admitted by them. The question that arises now is what right have they to interfere with
the Plaintiff's operations? None whatsoever in my view on the facts and circumstances of this case. The fact that there is an appeal
does not affect the Company's licence.
As far as Scott J's decision of 4 September 1996 is concerned, it has to be looked at in the light of the facts
that werere His Lordship. He said in his decision, inter alia, that:
"having seen the documents presented by the parties it is perfeperfectly clear to me that it was the intention of the native
owners of the land in question that the 1st Defendant and not the Plaintiff should be allowed to remove gravel from the site in question."
It is to be noted thasequently leave for judicial review was refused in respect of the area in question by the Cthe Chief Justice.
Scott J goes on to say:
"On the basis of the incomplete information and materials placed beforbefore me I do not think I would be justified in interfering
on the side of one party at this stage. It is evident to me that the native owners in both mataqali must sit down with the Director
of Lands and sort out this muddle. If all attempts to resolve the dispute administratively fail then the matter can be restored in
Labasa next month. The present application is dismissed."
It is clear from the above the bon which the application was refused. The information before Scott J was incomplete. I have have before
me the full facts including the Plaintiff's licence about which there can be no dispute. The decision of the Director of Lands still
stands as Judicial Review has been refused on the fifth defendant's application.
One further matter that ought to be considered is that although the intenjunction was discharged byed by the Fiji Court of Appeal,
the fact that the defendants are again interfering with the Company's operations there is nothing to stop the Company from coming
to this Court and making the very same type of application to Court and this is what the Company is doing now. I am therefore required
to consider the application on the affidavit evidence before me.
It is my view that any appeals or proposed appeals do not in any way affect the present application being made. When the facts are
so clear that it is the Company which has the licence and not the defendants, the Court will come to the Company's aid and allow
it to continue with its operations under the said licence.
The defendants know very well that the licence in question is for one yely and there is only a few few months to go for it to expire.
It is abundantly clear from the discussion I had with the parties concerned at Labasa in my Chambers, that the defendants have no
licence at all and they have admitted that that is so. Then what right have they to interfere? If they want to contest this action
it is entirely upon them but they cannot prevent the Company from operating under the licence. No amount of threat of violence, which
some of them indicated to Court, erupting from allowing the Company to operate should or will thwart the Company's operations.
In view of what I have said hereabove in regard to the previocisions, I reject the defendants' counsel's submission that that the
principle of res judicata applies to the facts and circumstances of this case.
The decisions were interlocutory decision with liberty reserved to parties to apply to Court. None of the cases cited by Mr. Sen has
any relevance to the facts of this case. I have already stated how Scott J came to his decision but still left it open to them to
come before the Court on three days' notice. The decision on the Judicial Review means that there is only one valid licence and it
is that of the Company. In Chambers on 20 January 1997 the fourth defendant Abdul told the Court that he has no licence saying "but I am extracting gravel and stone under permission granted to me by the Mataqali:" and as it has come out in evidence that the Mataqali's licence has been cancelled.
To conclude, it is abundantly clear that the defendao not possess any licence in respect of Korotari River over over which there is
this dispute. It is the Company which holds Licence No. 2/96 over Korotari River.
I find that on the facts and circumstances of this case, the Company is entitled to the injunction. The guiding principles in the
granting or refusal of an interlocutory injunction have been borne in mind by me as stated by LORD DENNING in HUBBARD v VOSPER (1972) 2 WLR 389 at p.396. He said:
"nsidering whether to grant an interlocutory injunction, the right course for a judge is to s 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."
On a balance of convenience between the parties, when one party has the licence and the otht, there ought to be an injn injunction
restraining the defendants from interfering with the Company's operations. In coming to this conclusion I have not lost sight of
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 protect the plaintiff againjury by violation of his right for which he could not be adbe 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".
For these reasons the Company is in the circumstances entitled to Orders for injun which are granted as pray prayed. The defendants
are ordered to pay costs which is to be taxed unless agreed.
D. Pathik
JUDGE
At Suva
20 March 1997
Hbc0067d.96b
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