Ketenavu v Native Land Trust Board [2005] FJHC 351; HBC0371.2003 (16 September 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
1ST DEFENDANT

NATIVE LANDS AND FISHERIES COMMISSION
2ND 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: 15 July, 29 July and 5 August 2005
Date of Ruling: 16 September 2005

INTERIM INTERLOCUTORY RULING OF FINNIGAN J

This is an application on notice for an interlocutory injunction, filed after the proceedings commenced. The hearing has been by way of formal submissions. The submissions were timetabled and those of the Plaintiff were filed in time. Subsequently Counsel for the 1^st Defendant (the NLTB) advised that her client had still not sent the files and sought an extension of time. No submission has been filed. Neither has the 1^st Defendant yet filed a Statement of Defence. The 2^nd Defendant has filed a Statement of Defence and an affidavit in opposition to the present application.

Therefore, I am proceeding on the Plaintiff’s submissions only. I must advise with regret at the outset however that I cannot grant this interlocutory application. I have taken full account of Counsels’ submissions and the authorities referred to therein.

This is an action commenced by writ. The Plaintiff seeks 14 separate remedies, the first being a Declaration that it the Plaintiff is not extinct. I already relish the arguments that it will advance. It seeks an order that it be restored to the Vola ni Kawabula (the Register kept with the 2^nd Defendant). It seeks an order that a particular Tokatoka (Namara) be restored to their original high-ranking position as the Chiefly Tokatoka of the Vanua of Moala. It seeks related remedies which appeared to be declarations, aggravated and punitive damages, such other and further relief as seems just, and damages. This is an action of a very specific kind. The participation of the 1^st Defendant (NLTB) could have been helpful to me in considering this application but at this stage it even needs leave to file a Statement of Defence. The 2^nd Defendant however signals its position in paragraph 10 of its Statement of Defence. It pleads that the claim of the Plaintiff (para. 13 of the Statement of Claim) that it has “been denied its) fundamental rights claims and privileges under the Constitution of the Republic of the Fiji Islands”. Is “unmeritorious and vexatious”.

Counsel for the Plaintiff helpfully recognizes that the pleadings and affidavits may be a little confusing to me in the terms and rules of Fijian protocol. I appreciate his following remarks:

“The gist of the writ is that the Plaintiff is claiming that they have been denied the right of succession by traditional Fijian protocol to land which has been made over, either by connivance, neglect or mistake of the Native Land and Fisheries Commission (NLFC) as 2^nd Defendant, to another land owning group, the Yavusa Ketenavunivale, which has no right of succession. It is also based on the claim that the 2^nd Defendant has mistakenly or otherwise declared the Yavusa Ketenavu to be extinct. In addition, the issue of leases has been addressed to the wrong land owning group by the 1^st Defendant as trustees and in their administrative capacity”.

Against that background the Plaintiff seeks by way of interlocutory relief an injunctive order that all dealings in regard to Crown Schedule A land, the subject matter of this claim, and all grantings renewals and terminations of leases (presumably therein) be put on hold and any monetary benefits accrued from such dealings be frozen until the determination of this dispute. It seeks also an order that the 1^st Defendant hold all monies rents, income and other benefits deprived from the land until the determination of this action.

In his submissions Counsel is concise to the point and reliant upon good authority. From among his authorities the dominant one is American Cyanamid Co –v- Ethicon Ltd [1975] UKHL 1; (1975) AC 396. I have considered all of the arguments raised by Counsel from that judgment in favour of his application but ultimately it comes down to whether (a) there are serious issues to be tried, (b) will damages be an adequate remedy for the Plaintiff’s, if not, then (c) where does the balance of convenience lie?.

Undoubtedly the issues are serious for the Plaintiff. The 2^nd Defendant says that part of the claim at least is vexatious and without merit. However to claim that one is not extinct when others claim that one is seems to me pretty serious. Most of the remedies sought seem to amount to that. The other remedies are in damages. One follows the other. Even the Plaintiff thinks that damages (once it has been declared a living entity) will be an adequate remedy and prima facie there is the end of the matter.

However, it is upon the American Cyanamid principle that Counsel in his submission argues that he does have a case. His submissions are concise, clear and to the point. They are logical and he does point out how damages, if this interlocutory remedy is not granted will indeed be inadequate compensation, not only for the Plaintiff but also for third parties who may deal with Crown Schedule A lands before this action is determined and obtain title against the world by registration. In respect of the balance of convenience he submits that the decision of the Court in determining the action will inevitably involve some disadvantage to one or the other side which damages cannot compensate. He gave examples of cases where the balance of convenience favoured holding the status quo. He pointed out, supported by good authority such as Jay Prakash Narayan –v- Savita Chandra Civil App. 37/(CA), that the Court is entitled to give significance to the fact that a party has not responded in an interlocutory application. The Court is entitled to find the inference inescapable that what the applicant has said is accepted by that party. He points out that apart from the 2^nd Defendant’s affidavit neither of the Defendants have opposed this interlocutory application. I accept that as a telling point.

This ruling was ready for issue on 17 August 2005, when submissions by the 1^st Defendant and a Statement of Defence of the 1^st Defendant, both filed on 15 August 2005, were handed to me. Both are well out of time. Clearly a substantial defence is intended. Counsel can decide what they want to do about the late filing of the Statement of Defence of the First Defendant. I will await further word about that.

The interlocutory submissions demand attention and cannot be dismissed out of hand. Neither can I rule on them until I have seen any reply on behalf of the Plaintiffs.

I therefore allow time for a submission in answer to Counsel for the Plaintiff. This should be filed and served by 4.00pm on 30 September. I shall issue a Ruling soon after that date.

D.D. Finnigan
JUDGE

At Lautoka
16 September 2005