Varani v Native Land Trust Board [2005] FJHC 291; HBC0081.2005 (4 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0081 OF 2005

BETWEEN:

SEVANAIA VARANI
as one of the Trustees of
NAMATUA MATAQALI TRUST
and for and on behalf of himself and as representative of other members of the Trust.
FIRST PLAINTIFF

SEVANIA VARANI
for and on behalf of himself and as representative of the members of
MATAQALI NAMATUA
a native land owning unit from Yanuya Village
situated in the Malolo Islands, Mamanuca Islands, the Province of Nadroga.
SECOND PLAINTIFF

AND:

NATIVE LAND TRUST BOARD
a body corporate duly constituted under the Native Land Trust Act Cap 134.
FIRST DEFENDANT

JEMESA RAMASI
C/- Tokoriki Island, landowner and Namatua Trust.
SECOND DEFENDANT

Mr S. Maharaj for the Plaintiffs
No appearance for the First Defendant
Mr I. Fa for the Second Defendant

Date of Hearing: 3 June 2005
Dates of Submissions: 17 June, 1 July and 8 July 2005
Date of Ruling: 04 November 2005

INTERLOCUTORY RULING OF FINNIGAN J

On 3 June 2005 I accepted an oral application from Mr Fa for an order to dissolve the interlocutory injunctions made herein on 4 April 2005. On the same day by agreement of Counsel I extended that order until further order of the Court.

I sincerely wish to avoid adding any more unnecessary words or documents to this already overloaded file. For that reason this ruling will be delivered in brief form only. There is nonetheless much could that could be said, mostly words of guidance for Counsel.

Suffice to say that the injunctions in question were made inter partes. They are a substantial part of the remedies sought by the Plaintiffs in its substantive Writ Action filed at the same time as the application for interlocutory injunctions, and it is not usual for the Court to grant substantive relief in this way. The injunctions however were made inter partes after the summons was served and the Defendants failed to appear.

Since that time there has been a wealth of documentary material put on the file, a good part of that being Affidavits of Service. In the present application, excluding Affidavits of Service ten substantial documents have been filed.

In my opinion that is undisciplined litigation. The Court simply cannot make itself available to deal with interlocutory applications that are treated by Counsel as major litigation.

Counsel should note that in particular interlocutory applications for discharge of orders that were made in default of compliance by one of the parties cannot be given high priority. These injunctions may not have been made had the Defendants appeared on the return date of the summons. In all of the material filed by Mr Fa there probably is but I have not found an explanation for that and it is the main cause of all the interlocutory activity that has been generated.

It is a matter for regret that I have not been able to read all the documents and prepare this ruling until now. I do not recall giving leave for affidavits but I read them and only urge Counsel to treat relatively simple matters as relatively simple. Much of the material cannot help me decide whether these injunctions should be dissolved pending the substantive hearing when they may well be made again. Fundamentally, the principles are in one case, and neither Counsel refer to it in submissions. They did however refer to the principles and the case is American Cyanamid [1975] UKHL 1; (1975) AC 396. Both Counsel traversed the facts at length, far more then was necessary to establish that there are serious issues to be tried. I accept that there are.

In order to reduce any further delay I say that I find without difficulty that damages will be an adequate remedy for the Second Defendant if it comes to remedies and the balance of convenience favours keeping the injunctions in force pending the substantive hearing. I note that neither Counsel had any authorities to cite in their submissions. I am led to these conclusions by the affidavits and by the submissions themselves, read together.

This was yet another case of an applicant for interlocutory relief giving a meaningless undertaking or to damages. “My usual undertaking” is empty words. However I assess the Plaintiff as having sufficient means to pay damages if he and the Trust are found liable.

On this interlocutory application costs follow the event and the Second Defendant will pay costs of $800.00. This takes into account the considerable amount of work done by both Counsel.

This matter is not set for hearing until 21 and 23 August 2006. I urge the parties to try to reach a settlement. If for any reason the case cannot be heard in August it will not be heard until November 2006. If it does come to hearing Counsel will be expected to rely on documentary evidence and submissions already filed and they will not be allowed to repeat them.

Documents inadequately described in their headings and coversheets are a further distraction for the Court, which can relate these documents to other documents sometimes only by the date on which they were filed. On occasions when the Court does not know what a document is intended to be it will not be read.

Where the issues are largely factual as here, they will not be resolved by multiple untested affidavits making claims and counter claims of fact.

D.D. Finnigan
JUDGE

At Lautoka
4 November 2005