Kobee v Public Trustee [2003] FJHC 40; Hbc0268d.1996s (19 February 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 268 OF 1996S

Between:

JOHN KOBEE
and
CLUB MASA LODGE LIMITED
Plaintiffs

and

THE PUBLIC TRUSTEE
First Defendant

and

CHRISTOPHER WORK
Second Defendant

and

THE REGISTRAR OF TITLES
Third Defendant

Ms. K. Brewer for the Plaintiffs
R. Matebalavu for the Second Defendant
No appearance by the First and Third Defendants

DECISION

In May 1996 these proceedings were commenced by generally endorsed writ.

As appears from the writ the subject matter of the litigation in an alleged right of way across CT 3528, a piece of land adjacent to the Sigatoka river. Sigatoka is in the Western Division. Order 4 Rule 1 (1) of the 1988 High Court Rules (as amended by LN 73/97) reads as follows:

“Proceedings must ordinarily be commenced in the High Court Registry located in the Division in which the cause of action arises.”

These proceedings should have been begun in Lautoka.

On 10 June 1996 the Plaintiffs’ filed a motion ex parte seeking an injunction to prevent the first and second Defendants from interfering with the use by the Plaintiffs of the alleged right of way.

Order 29 rules 1 (1) and (2) (as amended by LN 61/91) read as follows:

“(1) An application for the grant of an interim injunction may be made by any party to a cause or matter before or after the trial of the cause or matter whether or not a claim for the injunction was included in that party’s writ .....

(2) Where the applicant is the Plaintiff and the case is one of urgency and the delay caused by proceeding in the ordinary way would entail irreparable or serious mischief such application may be made ex parte on affidavit but except as aforesaid such application must be made by notice of motion or summons.”

Paragraph 24 of the supporting affidavit filed by the First Plaintiff asserted that there was “great urgency” in restoring the Plaintiff’s claimed right of way.

Order 8 rule 2 (2) provides that:

“unless the Court gives leave to the contrary there must be at least 2 clear days between the service of a notice of motion and the day named in the notice for hearing the notice.”

The combined effect of Order 29 rules (1) and (2) and Order 8 rule 2 (2) is that a plaintiff wishing to proceed ex parte must satisfy the Court (a) that two days notice would result in “irreparable or serious mischief” and (b) that anything less than the total abridgement of the two days notice would result in “irreparable or serious mischief”.

No attempt was made by the Plaintiff to satisfy these two requirements.

On 10 June 1996 a Judge of this Court granted the interim injunction without hearing the Defendant. The Court ordered that the injunction remain in place “until the trial of this action or further order”. No findings of fact are recorded on the file.

As repeatedly emphasised by the Courts interim injunctions should not be allowed to continue indefinitely; they should generally be granted until a certain day, usually the next motion day which in the Fiji High Court is a Friday morning (see ex parte Abrams (1884) 50 LT 184). Recently the Fiji Court of Appeal in Westpac Banking Corporation v. Adi Mahesh Prasad Civ App ABU 27 of 1997S (FCA Reps 99/1) stated:

“We add that if in any case ...... the Court sees fit to grant an ex parte injunction the matter should be adjourned for no longer than a day or so. A period of 6 weeks which was the period in this case was far too long.”

In the present case no adjournment date was specified at all and five and half years have elapsed since the order was made.

On 24 July 1996 a summons to dissolve the interim injunction, supported by affidavit, was filed by the Second Defendant. In paragraph 26 of his affidavit the Second Defendant stated:

“No public right of way has been formed or created legally over the land comprised in CT 3528.”

In paragraph 37 he deposed:

“... the residents, including the first Defendant had not at all recognised any right of the Plaintiffs to use the access way. Nor can it be reasonably accepted that usage over the years of the access way by the residents and by neighbouring property owners confers similar rights.”

On 20 August 1996 an affidavit in reply was filed. The affiant was Marcus P. Oliver, the second named Plaintiff’s Managing Director. In paragraphs 4, 16 (c) and 26 he stated that the right of way over the second Defendants land had existed and been recognised for over 35 years however no basis for this assertion was offered.

On 20 March 1997 the First Defendant also filed a summons to set aside the interim injunction. It was supported by an affidavit by the Assistant Public Trustee, Peni Taganekurukuru. Among other assertions it was deposed that CT 3528 is private freehold land over which no easement has ever been created. On 29 December 1999 the first named Plaintiff answered. In paragraph 6 of his affidavit Mr. Kobbe stated:

“... the original owner of the property now owned by the Plaintiff was originally owned by Mr. Christopher Work as executor, an ancestor of the Work family with whom the Plaintiffs are now engaged in a dispute in this matter. It was subsequently transferred to the Plaintiffs. From our examination of the property at the time prior to purchase the track already existed and was being used by other adjoining property owners who are also isolated from the nearest public access road and by people wishing to use the beach. We were never informed by the Work family nor by the second Defendant that there was no access or right of access to the public road. In any event, I strongly believe that if the Work family had originally sold CT 5616 it must have been implicit in such a purchase that there would be a right of access to a public road. To deprive the Plaintiffs of equal right is unjust.”

For various reasons, none of them particularly good, the motions to dissolve the interim injunction were not heard until 17 February 2003. In the intervening years a Statement of Claim was filed and Defences were also filed by the First and second Defendants. There were numerous applications and affidavits, none of which advanced the matter further.

On 17 February 2003 I reminded Ms. Brewer that, in the words of the Fiji Court of Appeal in Westpac v. Prasad (supra):

“During the period of the adjournment [following the grant of the ex parte injunction] the Defendant shall be served with notice of the order and copies of the application and affidavits relied upon before the Judge who grant the relief ..... These enable [ the Defendant], if it be so advised, to make submissions as to why the injunction granted ex parte should not be continued. When the matter comes back into the list it will not be for the Defendant to establish why the injunction should be dissolved. It carries no onus. Instead the Plaintiff has the task of persuading the Court that the circumstances of the case are such as to require the injunction to be continued.” (emphasis added)

I pointed out to Ms. Brewer that in his first affidavit filed in 1996 the first named Plaintiff principally relied on the existence of a right of way (see especially paragraph 26). By December 1999 he appeared (paragraph 6) to be relying on an implied right of access which it would be unfair to deny him.

When confronted with the requirements of Sections 39, 49 and 159 of the Land Transfer Act (Cap 131) to which reference had been made by the Assistant Public Trustee Ms. Brewer was forced to concede that there was no instrument creating the claimed right of way and that no right of way had ever been registered against the second Defendant’s land. In the alternative to compliance with statutory requirements Ms. Brewer was forced to depend on what she claimed was an acquisition of the right by prescription.

Opposing the further extension of the injunction, Mr. Rabo stressed the length of time to which the second Defendant had been subject to the interim injunction. He also submitted that the Plaintiff had no arguable claim to the right of way. So far as damages were concerned there seems to be no difficulty about reaching the Plaintiff’s land by river and accordingly damages would be a more than adequate remedy if a breach of a right of way was established.

In her reply, Ms. Brewer suggested that the balance of convenience favoured the Plaintiffs and that more harm would be done to the Plaintiffs than to the second Defendant if the injunction was lifted.

Given Fiji’s Torrens system of registration of title to land and the provisions of the Land Transfer Act, already referred to, particularly section 39 (2), I cannot foresee the Plaintiff being able to establish a legal claim to the right of way whether by prescription or in any other manner. In the absence of any payment or other act of part performance it is difficult to see how the Plaintiff’s could claim against the second Defendant in personam.

As I see it the Plaintiffs were rather lucky to obtain the interim injunction in 1996 and were very fortunate that no application to set it aside was heard until almost six years later. During those years the Plaintiffs, who had the carriage of the action, did little to advance it. A Summons for Directions was not taken out until January 2003. No discovery or inspection has yet taken place. No pre-trial conference has been convened. No trial date has been fixed.

In my opinion the Plaintiffs have had a more then adequate opportunity to prove their claim against the Defendants. They have failed to take it. Given what I find to be fairly obvious weaknesses in their case I do not think it would be right to allow the second Defendant to be deprived of the unrestrained use of his land any longer.

The interim injunction granted on 10 June 1996 will be set aside forthwith.

M.D. Scott
Judge

19 February 2003