Fenning Pacific (Fiji) Ltd v Saisai [2004] FJHC 322; HBC0541.2003S (11 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0541 OF 2003

BETWEEN:

FENNING PACIFIC (FIJI) LIMITED
Plaintiff

AND:

APAKUKI SAISAI
Defendant

EX TEMPORE JUDGMENT

Introduction

The plaintiff company is engaged in the business of logging and sawmilling. Through a subsidiary Timbers (Fiji) Limited it owns Native Lease No. 26494 being some 28.1019 hectares more or less generally described as Lot 1 on S04817 Waiyavi. In conjunction with that Lease it has a road way licence agreement. This agreement provides access for the plaintiff to its timber supplies.

The defendant is a member of Tokatoka Narogi of Galoa Village, Mataqali Vusu. He occupies Lot 24 NLCL/104 that adjoins this access road.

He genuinely believes that the access road encroaches on his land. He wants to protect his family interests. He has not litigated the matter but has exhausted other official and political remedies. He believes his claim is not being heard and so has taken the law into his own hands by blocking the plaintiff’s access way.

The Plaintiff’s Application

By originating summons filed in the Suva High Court on the 30th of December 2003 the plaintiff sought:

(a) A declaration that the country Road falls within the specification of the Plaintiff’s Roadway licence with the Native Land Trust Board.

(b) The Defendant through its servants and/or agents or anyone whatsoever be restrained from erecting any further road block on the said country road.

(c) The Plaintiff be a liberty to post signs along the country road stating its right over the road in all 3 common languages.

(d) Police assistance be granted in executing this order.

The plaintiff mirrored that prayer in an inter-parte motion for injunctive relief.

Support for that motion is primarily found in the affidavit of Joshua Usumaki dated the 22nd of December 2003.

That affidavit sets out the background of the matter.

It further notes the company’s attempts at settling the matter with the defendant including meetings re survey of the subject access road, discussions with the Native Lands and Fisheries Commission, Ministry of Fijian Affairs and Native Land Trust Board. It says these road blocks have variously occurred on 4 occasions throughout 2003.

It says the road blocks have caused it substantial losses (calculated at least $215,000.00 approx.) but I note the Company is not seeking damages.

The defendant used to work for the plaintiff company but was sacked for suspicion of theft. The plaintiff knows by inference therefore that the defendant would have no means to compensate the plaintiff company for its losses. Finally the company gives the usual undertaking as to damages.

The Defendant’s Case

In a wide ranging and rambling reply that is undated but received by this Court on the 1st of March 2004 the defendant complains about various matters including:

• non-consultation over the establishment of the road
• lack of adequate compensation
• disputed survey
• disputed lease interpretation concerning consent required before realignment of access way
• dispute over what land owners consented to the access way
• dispute over the division of compensatory gifts given to the Lawavola Clan.
  

The defendant is unrepresented. These are serious matters for him and his family. He was urged to find representation. As a courtesy to him and to progress the matter I waived any requirements for form of documentation he may care to file. He has done his best to place his issues before the court. He concedes there are serious questions to be tried.

The Law

In American Cyanamid Co v Ethicon Limited [(1975) AC 396,405,406] the two stage approach in the consideration of granting interlocutory or interim injunction applications was enunciated by the House of Lords. The two pronged approach was (1) whether there is a serious question to be tried in the proceeding and (2) where the balance of convenience lies.

The Privy Council decision in Eng Mee Yong v Letchumanan (1980) AC 331 confirmed the approach of the American Cyanamid principles in this way:

“the guiding principle in granting an interlocutory injunction is the balance of convenience; there is no requirement before an interlocutory injunction is granted, that the plaintiff should satisfy the court that there is a “probability”, a “prima facie case”, or a “strong prima facie case” that if the action goes to trial he will succeed; but before any question about balance of convenience can arise, the party seeking the injunction must satisfy the court that his claim is neither frivolous or vexatious; in other words, that the evidence before the court discloses that there is a serious question to be tried..........”.

Accordingly I have to consider two major subjects, namely whether there is a serious question to be tried and where the balance of convenience lies.

In my view where the facts of the case are clear at an interlocutory stage the courts are not likely to ignore the existence of that clear case. I find myself in that position here.

It is not disputed by the defendant that there is a serious question to be tried. He certainly has a dispute over encroachment of the access way and perhaps various other matters. These are serious issues. He has not sought the court’s assistance in resolving that dispute but has resorted to the best practical means available to him. That is not acceptable.

This is a clear case where injunctive relief should be granted pending resolution of the substantive issues. The balance of convenience overwhelmingly favours the plaintiff. I must be guided accordingly. The overall justice of the case demands that I grant the injunction in part. This was explained to Mr. Saisai. To his credit he accepts that it is proper that an injunction is issued.

The plaintiff concedes that it would be going too far to seek its declaration (a) by way of injunctive relief. That would involve consideration of mandatory relief. The law on the granting of mandatory injunctions is well settled and fully discussed in Redland Bricks Ltd v Morris (1970) AC 652 and most recently in Noodles Bakery Limited v Longwah Noodles Bakery Limited, Suva HBC0206.2003. This Court has jurisdiction to grant mandatory injunctions upon an interlocutory application but it would only do so in exceptional circumstances. The circumstances of this case do not satisfy any of the considerations detailed by Lord Upjohn in Redland Bricks at page 655. Accordingly I find against the plaintiff in respect of its first prayer for relief.

The plaintiff conceded that I lacked jurisdiction or indeed should inherently and for good policy reasons be able to order police assistance in the enforcement of civil remedy. In those circumstances I also deny interim relief in respect of the plaintiff’s prayer paragraph (d).

There is however great merit in granting the plaintiff’s a prayer for interim relief (paragraphs b and c):

(b) The Defendant through its servants and/or agents or anyone whatsoever be restrained from erecting any further road block on the said country road.

(c) The Plaintiff be a liberty to post signs along the country road stating its right over the road in all 3 common languages.

I order accordingly until further order of the court.

The defendant was unrepresented. He is of meagre means. He has the best interests of his family at heart. He made appropriate and timely concessions that shortened this hearing. I take those matters into account when fixing costs. I find the defendant’s actions have caused the need for the plaintiff’s motion. However given all the circumstances I make no order of costs against him.

This case needs management to a hearing. I accordingly set it down for further mention on the substantive claim. The parties will next appear before me on the 15th of April for a pre-trial conference. I direct that they be served with my standard directions in that regard.

[ Gerard Winter ]
Judge

At Suva
11th March, 2004