Gafoor v Native Land Trust Board [2005] FJHC 317; HBC0306.2003 (25 February 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0306 OF 2003L

BETWEEN:

ABDUL GAFOOR and MOHAMMED DEAN
both of sons of Din Mohammed
Plaintiffs

AND:

NATIVE LAND TRUST BOARD
1st Defendant

AND:

WAISAKE N. NAKAVU
2nd Defendant

Counsel for the Plaintiffs: Mr. R. Singh
Counsel for the 1st Defendant: Mr. K. Qoro
No Appearance for the 2nd Defendant

Date of Hearing & Judgment: 25 February 2005

JUDGMENT

There are before the court two applications, both of which were filed on the 4^th September 2003. Those applications are an Originating Summons and an Inter-partes Summons.

The plaintiffs proceed only with the Inter-partes Summons. That Summons seeks an order that the 1^st defendant be restrained from granting a lease to the 2^nd defendant of the land therein described and the plaintiffs also seek costs.

In support of the application, I have been referred to the affidavit of the first-named plaintiff, Abdul Gafoor sworn on the 3^rd September 2003. The plaintiffs’ application is opposed by the 1^st defendant and the 2^nd defendant does not appear.

The 1^st defendant in opposing the application relies on the affidavit of Timoci Vunisina sworn on the 5^th March 2004. In addition to the affidavit evidence, counsel for the plaintiffs in his submissions relies upon various admissions that have been made by the 1^st defendant in the pleadings.

Background

The background is set out in the affidavit of Abdul Gafoor but might briefly be stated that the plaintiffs were lessees pursuant to a Native Lease No. 21971 containing 8.7743 hectares. The lease expired and the plaintiffs sought to renew it. They approached the relevant Mataqali, the Mataqali Nawaka, Tokatoka Nawaka, and sought approval, which from the annexures to the affidavit, appears to have been granted upon payment of the sum of $5,000.00 as a goodwill premium.

The application was made to the 1^st defendant for a renewed lease, that application is annexure AG-4 to the plaintiffs’ affidavit. The plaintiffs say that they were advised by the 1^st defendant to cause a survey to be effected on the subject land which was done and a copy of that document is annexure AG-3 to the plaintiffs’ affidavit. The sum of $3,600.00 was paid to enable the survey to be carried out.

The 1^st defendant advised the Sugar Industry Tribunal by letter dated 18 January 2002, that the lease had been renewed for 30 years effective from 1^st January 2001.

The plaintiffs borrowed money to develop a farm from the Sugarcane Growers Fund and would appear took other steps on the basis of the advice that their lease was renewed.

The 1^st defendant then refused to issue a lease to the plaintiffs with respect to the land that is within the Mataqali Nawaka and Tokatoka Nawaka area.

The plaintiffs in the statement of claim in paragraphs (4), (5), (6) and (7) states that they had started to dismantle the dwelling house and the 1^st defendant advised them to refrain from so doing. That they applied for the renewal of the lease on the assurance or promise by the 1^st defendant and the 1^st defendant instructed them to cultivate sugarcane and that on the instructions of the 1^st defendant, the plaintiffs tendered a survey of the land at the costs of $3,600.00.

The 1^st defendant in its defence does not deal with paragraphs (4) to (6) inclusive of the plaintiffs’ statement of claim. The 1^st defendant admits to paragraph (7) and by virtue of the provisions of Order 18 Rule 12, the 1^st defendant has admitted paragraphs (4) to (6) inclusive in the statement of claim by not dealing with them.

Before dealing with the law, it is necessary I think to make some comments with respect to the affidavit filed by Timoci Vunisina on behalf of the 1^st defendant. The matters expressed are inappropriate and are expressed in a most inappropriate way. I note that the affidavit was not drafted by counsel appearing for the 1^st defendant and the endorsement of the document suggests it was drafted by the Legal Department of the Native Land Trust Board. More could be said with respect to it but perhaps it is inappropriate to do so at this time.

The Law

On behalf of the plaintiffs, it is submitted that there is in fact an estoppel, the operation which stops the 1^st defendant from failing to issue the lease to the plaintiffs. The development of the law with respect to estoppel is highlighted in two leading Australian decisions of the High Court of Australia. The first of which, was Waltons Stores (Interstate) Ltd v Maher and Another [1987] 164 CLR 387 which was followed by a further decision of that court being the Commonwealth v Verwayen [1990] 170 CLR 394. In Waltons Stores (Interstate) Ltd v Maher, Mr. Justice Brennan at page 428 set out the matters that must be proved to establish equitable estoppel and he said:

“In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that –

(1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship;

(2) the defendant has induced the plaintiff to adopt that assumption or expectation;

(3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation;

(4) the defendant knew or intended him to do so;

(5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and

(6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.”

These Australian authorities were adopted in this country by the Fiji Court of Appeal in Public Trustee of Fiji v Krishna Nair – Civil Appeal No. ABU0010 of 1996S.

The plaintiffs, clearly on the facts as they are presented, have acted on the basis of the promise of the 1^st defendant. The tests as expressed by Brennan J. have been met in this instance.

As the relief sought by the plaintiffs is injunctive, it is necessary to consider the principles applicable in the granting of interlocutory injunction. Those principles are set forth by Lord Diplock in American Cyanamid v Ethicon Ltd [1975] UKHL 1; [1975] A.C. 396 at page 406, His Lordship said and I quote:

“The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where “the balance of convenience” lies.”

The tests might be summarized as being 3 fold:

(i) Is there a serious issue to be tried;
(ii) Are damages an adequate remedy; and
(iii) Where does the balance of convenience lie.

There can be no doubt on the material before me that there is in fact a serious issue to be tried in this matter.

Are damages an adequate remedy?

The matter, the subject, the application is the lease of a parcel of native land.

The normal rule when dealing with litigation involving land or land contract, is that specific performance is available. In Pianta v National Finance & Trustees Ltd [1964] HCA 61; [1965] ALR 737, purchases were obtained specific performance even though it was buying the land for the purposes of development and profit.

In Loan Investment Corporation of Australasia v Bonner [1969] UKPC 33; [1970] NZLR 724 at 745, the Privy Council said:

“In my opinion, once the contract is seen as a contract for the purchase of land on the stated terms, the case for specific performance in unanswerable.”

That being so, damages are not an adequate remedy.

Where the does the balance of convenience lies?

The orders sought seek to preserve the status quo that is to prevent the 1^st defendant from granting a lease of the subject land to the 2^nd defendant pending the trial of the issues between the parties and in these circumstances appears to me that the balance of convenience lies in favour of granting the orders sought.

Orders of the Court

1. Order in terms of paragraph 1 in the Inter-partes Summons filed on the 4^th September 2003.
   
2. The 1^st defendant is to pay the plaintiffs’ costs which I assess in the sum of One Thousand Dollars ($1,000.00).
   
3. The Originating Summons filed on the 4^th September 2003 is struck out with no orders as to costs.
   

JOHN CONNORS
JUDGE

At Lautoka
25 February 2005