Ketenavu v Native Land Trust Board [2005] FJHC 284; HBC0371.2003 (4 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0371 OF 2003

BETWEEN:

YAVUSA KETENAVU
PLAINTIFF

AND:

NATIVE LAND TRUST BOARD
FIRST DEFENDANT

NATIVE LANDS AND FISHERIES COMMISSION
SECOND DEFENDANT

Mr M K Sahu Khan for the Plaintiff
Ms Cevalawa for 1st Defendant
Ms S. Tabaiwalu for 2nd Defendant

Date of Hearing: 24 June 2005
Dates of Submissions: 30 September 2005
Date of Ruling: 04 November 2005

FINAL INTERLOCUTORY RULING OF FINNIGAN J

On 16 September 2005 I issued an Interim Interlocutory Ruling stating that I felt obliged to dismiss the application of the Plaintiff despite the attractive arguments put up by Counsel for the Plaintiff. Just as the ruling was ready for issue further submissions came in, filed by the First Defendant and I allowed further time for Plaintiff’s Counsel to file a submission in answer.

I have considered the three sets of submissions now before me and the affidavits. Because of the substantial number of matters awaiting interlocutory and other rulings I shall deliver this ruling in short form.

In short form, I remain unconvinced. In fact more strongly than before I feel the Court may wander into murky areas where it may have no function. Normally in my view claims of this sort which I classify in my mind as “Native Land and Native Title” claims can be resolved by the Court only when there is a disputed point of law within the jurisdiction of the Court, with or without disputes of the facts.

Whether there is a point of law within the jurisdiction of this Court remains to be seen if and when the parties come to trial. On this interlocutory application I cannot say I am sure that there is a serious issue within the jurisdiction of this Court to be tried and I have concluded that damages, if necessary, will be an adequate remedy for the Plaintiff. Those are the guidelines of American Cyanamid [1975] UKHL 1; (1975) AC 396.

Putting that aside, the submissions for both parties debate the question whether the Plaintiff is a body with legal personality. The response of the Plaintiff’s Counsel that the deponent of the affidavit in support claimed authority to speak for the group is not an adequate answer to that point. This issue needs to be litigated before any relief may be granted.

Likewise, there is a point which I did not raise in my interim ruling. Counsel for the First Defendant raises a substantial submission about it and I heartily agree with that submission. I should now state (again) that the practice of having an applicant swear a brief final paragraph in an affidavit that “I give my usual undertaking as to damages” is meaningless. As Counsel points out, Lord Diplock in American Cyanamid (above) said at pages 407 and 408, the Court must be satisfied not only that the Defendant would have sufficient money to pay damages to the Plaintiff if the interlocutory injunction is refused but also that the Plaintiff has sufficient money to pay the Defendant damages if he succeeds in obtaining the interlocutory injunction but later has it overturned.

On the totality of the submissions I am reluctant to commit the Court to the interim relief sought which would have the effect of preventing dealings that on their face are permissible in the normal course of business. I greatly doubt on the undertaking given for the Plaintiff that it could pay the damages that are foreseeable should it obtain this interlocutory relief and later lose it.

For these briefly stated reasons and on the arguments ably put before me by both Counsel, particularly Counsel for the First Defendant, the interlocutory injunction is refused.

Costs follow the event and bearing in mind the substantial effort of both Counsel I fix costs in favour of the First Defendant at $500.00.

D.D. Finnigan
JUDGE

At Lautoka
4 November 2005