State v Minister for Lands & Mineral Resources, Ex parte Nivis Motors & Machinery Co Ltd [1998] FJHC 37; Hbj0033d.1997s (25 March 1998)

Fiji Islands - The State v The Minister for Lands & Mineral Resources, Ex parte Nivis Motors & Machinery Co Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

JUDICIAL REVIEW NO. 0033 OF 1997

The State

v.

The Minister for Lands and Mineral Resources

ex-parte Nivis Motors & Machinery Co. Ltd.

Mr. H. Nagin for the Applicant
Mr. S.r for the Respondent

RULING

On the 4th of February 1998 this Court dismissed the applicant's application for leave to issue an application for judicial review of a decision of the Minister of Lands and Mineral Resources dated the 5th of September 1997 to compulsorily acquire a small portion of the applicant's Crown Lease No. 9007 for the purpose of the 'Nabua By-Pass Road'.

The applicant now seeks leave to appeal to the Fiji Court of Appeal and a stay of proceedings pending the disposal of the appeal. Both applications are opposed.

Section 12(2)(f) of the Fiji Court of Appeal Act (Cap. 12) provides that no appeal shall lie '... from any interlocutory order or judgment' without the leave of the Court or judge making the order.

Undoubtedly in this case (and both counsels agree), the court's refusal to grant the applicant leave to issue judicial review was an 'interlocutory order' insofar as the order did not finally determine the matter in dispute or dispose of the rights of the parties. Indeed the court's order if I may say so, does not even dispose of the question of 'leave' which might still be granted by the Court of Appeal should it see fit to do so [See for example: per Denning L.J. in R. v. Minister of Housing ex-parte Hove Corporation (1952) WN 373 at 374].

Counsel for the applicant in seeking leave to appeal submits that the 'general rule' is to grant leave if the applicant is able to make out some prima facie arguable ground of appeal.

In this latter regard counsel drew the court's attention to the well-known dictum of Diplock L.J. in I.R.C. v. National Federation of Self-Employed [1981] UKHL 2; (1982) A.C. 617 at 643H and submitted, that in the absence of any answering affidavit from the respondent, leave to apply for judicial review ought to have been granted without too much analysis of the applicant's evidence or grounds for seeking leave (See: in similar vein the recent observations of the Fiji Court of Appeal in Fiji Airline Pilots Association v. Permanent Secretary for Labour Civil Appeal 5 of 1997 (unreported) at pp. 8 & 9).

Counsel further submitted (and State Counsel agrees) that the appeal raises, for the first time, a point of general importance namely, the justiciability of a Compulsory Acquisition Notice and/or the circumstances (if any) under which the Minister's decision to compulsorily acquire land under the State Acquisition of Lands Act (Cap.135) is reviewable by the Courts.

State Counsel for his part, in opposing the application for leave to appeal, referred to the Court's judgment refusing leave to apply for judicial review and emphasised the court's firm conclusion: "... that the grounds raised on the applicant's behalf either have no chance of success or raise no justiciable issue". That, counsel submits was the Court's view formed solely on the basis of the applicant's own affidavit evidence and the grant of leave to appeal would only serve to perpetuate an appeal that is 'doomed to fail'.

What's more the refusal of leave to appeal would not prejudice the applicant since it would have an opportunity of opposing the State's pending application before the Court for an order pursuant to Section 6(1) of the State Acquisition of Lands Act (Cap. 135) and, in any event, the State is obliged to compensate the applicant for any land compulsorily acquired.

Reference was also made to the discretionary nature of the court's decision on an application for leave to issue judicial review proceedings and Counsel stressed that appellate courts are generally reluctant to interfere or overturn an interlocutory judgment involving the exercise of a discretion unless it is clearly wrong. (See in this regard the recent unreported judgment of the Supreme Court of Fiji in Fong Sun Development Ltd. v. Minson Fiji Limited Civil Appeal No. 7 of 1997 at p.7)

In the The 'Iran Nabuvat' (1990) 3 ALL E.R. 9 the English Court of Appeal (per Lord Donaldson M.R.) in rejecting a similar argument and in confirming the leave granted in that case, held:

"The purpose of requiring leave to appeal is to screen out appeals which will inevitably fail. Accordingly ... the test to be applied by the court in deciding whether leave should be granted is whether there is an arguable case by way of appeal and not whether there is a probability or reasonable likelihood of the appeal succeeding, since the bias must always be towards allowing the (Court of Appeal) to consider the complaint of the dissatisfied litigant."

In an interlocutory decision delivered in Reddy Enterprises Limited v. The Governor of the Reserve Bank Civil Appeal No. 67 of 1990 (unreported) the Resident Justice of Appeal said in granting a stay of proceedings pending the determination of an appeal against the refusal by Byrne J. of an application for judicial review, at pp.13, 14:

"It is not my function to assess the actual merits of the appeal but if prima facie it is obvious that the appeal is wholly unmeritorious or wholly unlikely to succeed then it would be appropriate for me to say so ... The important point is whether there is a serious question for adjudication as opposed to it being frivolous or vexatious."

For my part having carefully considered the opposing submissions and mindful of the 'bias' in applications of this kind, I am unable to say there is an 'unarguable case by way of appeal' or that the appeal is either 'wholly unmeritorious or wholly unlikely to succeed' and accordingly leave is granted to the applicant to appeal.

I turn next to consider the application for a 'stay of proceedings' which is made considerably easier to determine by the grant of leave to appeal.

In this regard I have considered the self-explanatory facsimile of the Permanent Secretary for Communication, Works & Energy dated the 6th of February 1998 to the applicant, wherein he states inter alia:

"I have given instructions to our contractor, Vuksich and Borich, that they may proceed to taken (sic) possession of the area in question."

It is, I think, common ground that in the absence of a court order authorising the compulsory acquisition of the applicant's land which is the situation in the present case, (as opposed to 'compulsorily taking possession' of the land), the threatened action by the contractors would be prima facie illegal. (See: Section 6(1) of the State Acquisition of Lands Act)

State Counsel submits however that the fact that the contractors have not actually proceeded to take possession of the applicant's land since the facsimile, is sufficient assurance to the applicant and the Court, that the law will be fully complied with before the bulldozers move in, so-to-speak.

Counsel for the applicant is not so sure however and submits, that a failure to maintain the 'status quo' would result in irreparable harm being caused to the applicant's existing premises and render nugatory its appeal in the event that it is successful after the bulldozers have moved in.

Exercising my discretion in the matter and mindful that the State itself has not completed all the steps necessary to compulsorily acquire the applicant's land, I grant a stay of all proceedings pending the disposal of the applicant's appeal to the Fiji Court of Appeal.

D.V. Fatiaki
JUDGE

At Suva,
25th March, 1998.

Hbj0033d.97s