Sahib v Commissioner of Police [1999] FJHC 73; Hbc0338d.99s (30 July 1999)

Fiji Islands - Sahib v Commissioner of Police - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 0338 OF 1999

BETWEEN:

:

ABDUL GANI SAHIB & OTHERS
Plaintiff

AND:

COMMISSIONER OF POLICE
1^st Defendant

ATTORNEY GEEY GENERAL OF FIJI
2^nd Defendant

Cou Mr A.K. Singh fogh for Plaintiff
Mr E. Walker & K. Keteca for Defendants

Hearing: 29^th July 1999
Decision: 30^th July 1999

DECISION

This is an application for an interlocutory injunction, for the immediate release of some 86 vehicles seized by the Police and kept in police custody since 23^rd July 1999.

The motion, in paragraph (b) also requests an injunction restraining the police from seizing any of the vehicles in question in the future. However at the hearing of the application, counsel for the Plaintiffs conceded that such an order would be unreasonable. He did not pursue the application in respect of paragraph (b).

The application was heard inter partes on 28^th July 1999. Mr K. Keteca requested time to file an affidavit in response to the affidavit of Abdul Gani Sahib, which was filed by the Plaintiffs in support of the motion.

The affidavit of Asaeli Tamanitoakula, Assistant Superintendent of Police, was filed on the 28^th of July. A further affidavit for the Plaintiff, of Naseem Khan was filed in support of the motion on 29^th July.

The Plaintiffs’ application is that some 86 minibuses were seized by the police on 23^rd July 1999. Mr A.K. Singh submitted that the writ of summons filed on 27^th July claimed damages for unlawful seizure of the vehicles. He argued that the police had no powers to detain the vehicles, that Section 47 of the Traffic Act gave no powers to detain vehicles, and that the Plaintiffs were suffering great hardship as a result of the allegedly unlawful detention. He referred to the affidavit of Abdul Gani Sahib, and submitted that the vehicles in question were being used for private purposes. He relied on Section 40(1) of the Constitution of Fiji (1998) which provides that:

"Every person has the right not to be deprived of property by the State otherwise than in accordance with a law".

Mr Keteca for the Defendants submitted that the operation complained of was a lawful operation called "Operation Mini-Bus". He referred to the affidavit of Asaeli Tamanitoakula, and argued that the police had seized a total of 138 vehicles on suspicion of contraventions of the Traffic Act, on the authority of Section 82(4) of the Traffic Act.

That section provides:

"Any police officer or authorised examiner, if he is of the opinion that any vehicle is being used in contravention of the provisions of this Act or in contravention of any regulations relating to the construction, use and equipment of vehicles, may, by order, prohibit the use of such vehicle, under such conditions and for such purposes as he may consider necessary for the safety of the public or to ensure that such vehicle does comply with the afore-mentioned provisions. Any such order shall remain in force until the repairs specified therein have been satisfactorily completed and the vehicle has been certified as complying with the aforesaid conditions with respect to construction, use, equipment and weight".

He also referred to Regulation 23 of the Traffic (Taxis and Rental Cars) Regulations which provides:

"Any person who uses a motor vehicle, or causes or permits a motor vehicle to be used, as a taxi or a rental car, except in accordance with the terms of a permit granted in respect of such vehicle authorising such use, shall be guilty of an offence".

He also referred to paragraph 5(b) of the affidavit of Asaeli Tamanitoakula, which deposes that the vehicles were also seized under suspicion of defects in their construction.

At paragraph 5 the affidavit states that a total of 138 vehicles were seen to be used in contravention of the Traffic Act. By 12 noon on 28^th July, 92 vehicles had been checked, 39 vehicles had been suspended, 36 vehicles had been the subject of charges and 41 vehicles were released after examination.

At paragraph 10, the affidavit deposes that:-

"I am informed and strongly believe that the police were acting within the provisions of the Traffic Act, and that the rights of safety of the members of the public override the individual’s interests for profit of unlawful, mini-bus operators".

Me Keteca submitted that the police should not be restrained from enforcing the law in the interests of public safety. He asked for the motion to be dismissed with costs.

It is clear from the affidavit of Naseem Khan, that the police had laid charges in respect of his vehicle, for driving with defective tyre, and for driving motor vehicle emitting smoke likely to cause nuisance. Both offences are created by the Traffic Act.

Section 82(8) of the Traffic Act Cap 176 provides that:

"It shall be lawful for any police officer to detain at a police station or other place of safety any vehicle which has been removed from a road or other public place under the provisions of this section until such inquiries have been made by the police as they may think necessary in the circumstances of the case".

Whilst counsel for the Plaintiffs argues that the police should have acted instead under Section 47 of the Traffic Act which gives no such powers of detention, it seems clear that the police are engaged in what is essentially a law-enforcement exercise, conducted in the interests of public safety.

It is evident that the Plaintiffs in asking for an injunction ordering the police to release their mini-buses from police custody, are asking not for an interlocutory injunction restraining the police from doing an act, but for an injunction against the police ordering them to do an act. This is in effect an application for a mandatory injunction.

Furthermore, it is an application for a mandatory injunction against a public body, namely the Police.

A mandatory injunction is an exceptional form of relief Clocobail International Finance Ltd. -v- Agro expert (1986) 1 WLR 65 7.

Principles for the grant or otherwise of mandatory injunctions are set out in Redland Bricks Ltd. -v- Morris (1969) 2 ALL ER 576, at page 579 (per Lord Upjohn). These are:

1. A mandatory injunction can only be granted where the Plaintiff shows a very strong probability on the facts that grave damage will accrue to him in the future. It is a jurisdiction to be exercised sparingly and with caution but, in the proper case, unhesitatingly.

2. Damages will not be a sufficient or adequate remedy if such damage does happen.

3. The cost to the Defendants to do the work or the act must be taken into account.

4. The court must be careful to see that the Defendant knows exactly in fact what he has to do.

The question is whether the case for the Plaintiffs is unusually strong and clear. The test is a far more stringent one than the American Cynamid -v- Ethicon Ltd. (1957) 1 All ER 504, test.

In Ba Town Council -v- TPJ Bulldozing Co.Ltd. Civil Appeal No. 55 of 1986, the Fiji Court of Appeal approved as a correct statement of the law on mandatory injunctions the following passage from Bean on Injunctions, (3^rd Edition p 29):-

"An interlocutory application for a mandatory injunction is a very exceptional form of relief (Canadian Pacific Railway -v- Gaud (1949) 2 KB 239 at 249; the courts will not normally compel a Defendant to do so serious a thing as to undo what he has done except after a full hearing . . . . . When the final result of the case cannot be known and the court has to do the best it can, the case has to be unusually strong and clear before a mandatory injunction will be granted even if it is sought in order to enforce a contractual obligation".

Furthermore, in considering the grant of an interlocutory injunction against the State, or a public body "matters of considerable weight have to be put into the balance to outweigh the desirability of enforcing, in the public interest what is on its face the law of . . . . . so as to . . . . . restrain the public authority for the time being from enforcing such law. This is not to say that the party challenging the validity of a national law must go to the extent of showing a strong prima facie case that such law is invalid, but the court should not restrain the Crown or other public authority by interim injunction from enforcing an apparently authentic national law unless it is satisfied that the challenge to the validity of such law is, prima facie, so firmly based as to justify so exceptional a course being taken (Factortame Ltd. -v-Secretary for State for Transport (No. 2) (1990) UKHL 13; (1991) 1 All ER 70, H.L." (Supreme Court Practice (1995) Vol. 1 p 510-511).

Having considered the material on affidavits before me, and having heard the submissions of counsel, I am not satisfied that the Plaintiffs have shown sufficient grounds for a mandatory injunction ordering the police to release vehicles seized in the course of their investigations.

In this case Mr A.K. Singh argues that the police only had powers to require the vehicles to be tested by an examiner under Section 47(2) and (3) of the Traffic Act Cap 176. However, there is no doubt that the police have much wider powers to detain vehicles suspected to be used in contravention of the Traffic Act and to hold such vehicles "until such inquiries have been made by the police as they may think necessary in the circumstances of the case" (Section 82(8) of the Act).

In the face of such a power the court should be reluctant to order the police to release vehicles detained, purportedly under this section.

Without determining the issues that are ultimately for the substantive action, I find that are insufficient grounds to justify the grant of the injunction.

Furthermore, counsel for the Plaintiffs concedes that if the Plaintiffs succeed in the substantive action, they can be adequately compensated by damages. The Defendants on the other hand could not be adequately compensated in damages if the Plaintiffs fail in the substantive action.

For these reasons, I refuse the application for injunction. I order that the Plaintiffs pay the Defendants’ costs to be taxed if not agreed.

Nazhat Shameem, Ms
JUDGE

At Suva
30^th July 1999

HBC 0338D.99S