Vunimoli Sawmills Ltd v Rogoyawa No. 1 [2003] FJHC 236; HBC0004d.2003b (27 October 2003)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 4 OF 2003

Between:

VUNIMOLI SAWMILLS LIMITED
Plaintiff

and

SUNIA ROGOYAWA NO. 1,
SAKUISA MAILASE,
JALE ROGOYAWA NO.1,
SUNIA ROGOYAWA NO. 2,
JUNIOR RAGE ROGOYAWA, TIMI DANI,
JALE ROGOYAWA NO. 2 &
JONE LULUI MAKALAKAI
1st Defendant

and

SEREMAIA RAMOCE NO. 1,
SEREMAIA RAMOCE NO. 2,
DOBUI RAILALA and
LAISIASA WAQAMOCE
2nd Defendants

Mr. A. Kohli for the Plaintiff
Ms. A. Vakatale for the Defendants

DECISION

By motion ex parte dated 19 February 2003 the plaintiff applied for interim injunction in regard to the extracting of gravel which was granted the same day. A writ of summons was also filed the same day with indorsement of claim.

The defendants filed affidavits in response on 18 July 2003, Statements of Defence by the defendants were also filed the same day. On 29 August 2003 Ms. Vakatale for the defendants sought dissolution of the said interim injunction. As ordered, last of the written submissions were filed by Counsel on 26 September 2003.

Consideration of the issue

The plaintiff had sought injunction restraining the defendants from interfering with its rights of extracting gravel granted by licence given by the Lands Department. The licence defines the area in which the gravel is to be extracted. It also contains all other terms and conditions of the licence.

I have considered the submissions made by both counsel. The defendants are basically saying that although the boundary area marked under the licence although being within the Crown Land under the Rivers and Streams Act, the surrounding area had reverted to Native Reserve.

The defendants dispute the rights granted to the plaintiff by the licence. The plaintiff is by the licence required to pay the Government the fees and royalty and other charges and it is for the Government to pay out the money to the rightful Land Owning Unit.

The quarrel that the defendants have is with the Government, for the plaintiff is merely relying on the licence. It is for the defendants to take the matter up with the Government and to have the licence amended or revoked. Incidentally, the licence expires on 31 December 2003.

If injunction is not granted the plaintiff’s contract with Government to supply gravel will be greatly affected. It will not be able to fulfil its contractual obligations.

Applying the principles enunciated in the well-known American Cyanamid case I find that there is a serious question to be tried and that the scale tips in favour of the plaintiff as far as balance of convenience is concerned. In this case damages will be an adequate remedy as the defendants are in no position to pay any damage.

I do not find any merit in the defendants’ argument as stated in their submissions for the purpose of dissolution of interim injunction granted herein. The matters raised by the defendants regarding the alleged non-disclosure are matters which need to be determined in the trial of the action. These are serious questions to be tried and cannot be determined on affidavit evidence alone.

The defendants want the interim injunction dissolved but at the same time they make a counter-claim and pray that Court grant them an interlocutory injunction against the plaintiff Company from extracting any gravel from the licensed area until further order of the Court.

In the circumstances of this case I cannot accede to this application.

To conclude, on the facts and circumstances of this case for the above reasons the defendants’ application for dissolution of the interim injunction granted herein on 19 February 2003 is refused. The injunction will continue until further order of this Court. It behoves the parties to proceed with the action with due diligence so that the issues in dispute are determined with the least possible delay. I make no order as to costs.

D. Pathik
Judge

At Labasa
27 October 2003