State v Minister for Lands & Mineral Resources, Ex parte Nivis Motors and Machinery Company Ltd [2005] FJHC 525; HBJ0033D.1997S (9 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0033D OF 1997S

BETWEEN:

STATE

V.

MINISTER FOR LANDS AND MINERAL RESOURCES
RESPONDENT

AND:

EX-PARTE: NIVIS MOTORS AND MACHINERY COMPANY LIMITED
a limited liability company having its registered office at
Suva in the Republic of Fiji Islands.
APPELLANT

Counsel for the Applicant: H. Nagin: Sherani & Co.
Counsel for the Respondent: K. K. Keteca: Attorney-General’s Chambers
Date of Decision: 9 September, 2005
Time of Decision: 9.30 a.m.

DECISION

This is the Appellant’s/Applicant’s application for a stay pending the determination of its appeal filed on 7 December 2004 in respect of my judgment on 3 November, 2004. In its affidavit in support, the Appellant sets out 3 grounds in which the application is based. First, the Appellant believes that it has a good prospect of success on appeal. Second, that the appeal will be rendered nugatory if a stay is not granted. Third, that the balance of convenience required that a stay be granted and the status quo be maintained.

This case has a very long history dating back some 15 years to October 1990. The factual backgrounds as I summarised in my judgment reads:

“In October 1990, the Government approved the Nabua Bypass concept as part of its Asian Bank – sponsored Fiji Road Upgrading Project – Stage 2. This Bypass concept was linked to the Nabua Commercial Centre Scheme (the upgrading of the Nabua/”3 miles” Shopping Centre), which proposal was put to and approved by the Suva City Council in July 1991. These proposals and specifically the construction of a new roundabout in the intersection of Ratu Mara/Golf Link/Mead Roads, would involve acquisition of part of the Applicant’s leasehold property.”

The Appellant was duly informed of Government’s intention to acquire part of its land, comprising an area of 455 sq. metres. The Minister for Lands then formally moved to acquire the said portion, pursuant to section 3 of the State Acquisition of Lands Act (Cap. 135). It is this decision that the Appellant moved to be judicially reviewed.

The governing principles on the question of stay are set out in full in the Fiji Court of Appeal decision of Natural Waters of Viti Limited v. Crystal Clear Mineral Water (Fiji) Limited CA NO. 11 of 2004. Citing two New Zealand decisions of Dymocks Franchise Systems (NSW) Pty. Ltd. v. Bilgola Enterprises Ltd. (1999) 13 PRNZ 48 and Area One Consortium Ltd. v. Treaty of Waitagi Fisheries Commission (1993) 7 PRNZ 200, the Court set out a “non-comprehensive” list of factors that should normally be taken into account by the Court when considering the question of stay. These include,

“ (a) Whether if no stay is granted, the applicant’s right of appeal will be rendered nugatory (this is not determinative). See Philip Morris (NZ) Ltd. v. Liggett Myers Tobacco Co. (NZ) Ltd. (1977) 2 NZLR 41 CA.

(b) Whether the successful party will be injuriously affected by the stay.

(c) The bona fides of the applicants as to the prosecution of the appeal.

(d) The effect on third parties.

(e) The novelty and importance of questions involved.

(f) The overall balance of convenience and the status quo.”

Overriding consideration is as stated by the court in Duncan v. Osborne Building Ltd. (1992) PRNZ 85 (CA) at p. 86:

“On a stay application the Court’s task is carefully to weigh all of the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful.”

It is the Appellant’s contention that its appeal would be rendered nugatory if a stay is not granted. This is because according to the Appellant, the Minister has already begun in CA 512/2004, proceedings under section 6 of the State Acquisition of Lands Act, to compulsory acquire the land in question.

The provisions for compulsory acquisition of land by the State for public purposes, are clearly set out under the Act. It does not, contrary to the suggestion by the Appellant’s Counsel, require any pronouncement as to how it is to done from a higher authority. First section 3 gives powers to the acquiring authority (Minister for Lands) to acquire any land for any public purpose. Section 4 deals with the preliminary investigatory works including survey and other tests required to be done by the Minister before a final decision is taken. Section 5 requires the Minister after the decision to acquire is made, to give 30 days written notice to every person whose land will be affected by the decision.

This Court has already found as a matter of fact, that the acquiring authority, the Minister of Lands, had complied fully with the requirements of section 3, 4 and 5 of the Act. The Appellant had challenged the Minister’s decision to compulsory acquire a portion of its land. This was dismissed. In the meantime, the Minister has proceeded with the next phase of acquisition as provided for in section 6 of the Act. Section 6 states:

“ 6 (1) The acquiring authority shall not compulsorily acquire any land unless he has applied to the Court and has obtained therefrom an order authorising such acquisition.

(2) In the event of an acquiring authority compulsorily taking possession of any land he shall within thirty days of so entering into possession apply to the Court for an order authorising such taking of possession.

(3) The Court shall not grant an order referred to in either of sub-sections (1) or (2) unless it is satisfied that the taking of possession or acquisition is necessary or expedient in the interests of defence, public safety, public order, public morality, public health, town and country planning or utilisation of any property in such a manner as to promote the public benefit.”

It is clear to the Court that the Appellant is still able, under section 6 proceedings, to challenge the Minister’s decision by convincing the Court that the acquisition is not in those interests identified under section 6 (3) above.

This requirement together with Constitutional safeguards for the protection of property rights in both the 1990 and the 1997 Constitutions are still available for the Appellant to pursue. This possible alternative remedy is fully explored by the Fiji Court of Appeal in its decision of 13 November, 1998 when this same case came before it, upon the refusal of Fatiaki J (as he then was) to grant leave for judicial review. In essence, the Court having considered our mechanism for compulsory acquisition alongside the provisions for the same in New Zealand and St. Vincent in the Caribbean, concluded that the S.6 (3) process will only “apply to a decision of the Minister which is unflawed in administrative law terms.”

In this case, the Court having found that the acquisition authority has acted properly within the requirement of the law, has dismissed the Appellant’s claim. The Appellant can still pursue his redress before the Court under S.6 (3). Should the Court decide in favour of the Respondent, then damages and compensation to the Appellant are addressed under S.7, while matters that should be considered and which would this Court believes, include many commercial factors put forward by the Appellant in its support, are set out under S.12 when compensation is being determined.

For the reasons I have explained, I do not think the Appellant’s argument that my declining a stay would render the appeal nugatory has any merit. The process of acquisition is still to run its course and the S.6 (3) process basically allows it a second bite at the cherries.

On the other hand, a stay would only retard the process of the work of the Ministry of Works in trying to complete the Nabua bypass and roundabout much to the inconvenience of the travelling public. It is no secret that there has been much public debate and outcry at the inability of the parties to resolve the now 8 years long impasse of what basically amounts at the end, is the most appropriate compensation that should be paid to the Appellant for its 455 sq. m. of land which the State requires to enlarge the roundabout into a two lane traffic thoroughway, in order to ease the traffic flow from Nausori into Suva. As I have stated in my Judgment, the Alternative roundabout designs offered by the Appellant, has already been considered fully by the Respondent. It is not for this Court to decide that it is the more suitable design of the two and should be adopted by the Respondent. It would tantamount to the Court deciding on the merit or otherwise of a decision, which is not open to it in a judicial review procedure. In the end, the only outstanding matter is the proposal by the Appellant for a $2.0m compensation which the Respondent has refused. What the Appellant is now arguing is that it no longer wishes to relinquish the land notwithstanding any compensation and instead offering the alternative roundabout designs as a way out. Yet, the delay in the hearing of this Stay application, is the result of request by the Appellant that it be given more time to negotiate a settlement, including the issue of compensation with the Respondent. To a certain extent therefore it raises the question of the Appellant’s bona fides.

The Appellant also argues that it believes that it has a very good prospect of success on appeal. In support, the Appellant’s sets out in details the grounds of appeal. In my view, the grounds are nothing more than a regurgitation of the issues of facts and of law which this Court had fully addressed in the hearing. The diffused nature of the grounds for relief sought did not I believe, prevent the Court from dealing with each individual issues raised by the Appellant. This Court had paid particular attention to the findings of the Fiji Court of Appeal in its 13 November 1998 judgment and especially on the issue of whether the alternatives proposed by the Appellant’s consultant, had been fully considered by the Respondent. It found that it had. In respect of the others, the Court having looked at all the evidence before it together with Counsel’s submissions, found “no support for the arguments that legal error may have been committed by the Respondent.”

I am not convinced in the end, that this appeal has merit and that a stay should be granted.

As to the balance of convenience, I have no hesitation, having found no merit in the Appellant’s other two grounds above, that this consideration favours the Respondent. The prejudice to the Appellant, if at all, in the end and after having gone through S.6 (3) procedure, is limited to the loss of the use of 455 sq. m. of showroom space, which loss, it will be adequately compensated for, as compared to the greater prejudice to the Respondent and continuing inconvenience and suffering of the public, should the Appellant continue to procrastinate. The application for Stay itself has taken over 5 months to be heard simply because the Appellant had informed the Court of its continuing approaches to the Respondent and offer of a settlement.

Finally Counsel for the Respondent submitted that this judicial review proceedings is by its nature a non-coercive, non-executory order which is incapable of being stayed. He referred the Court to R v. Minister for Labour & Industrial Relations, Exp. Shore Buses Limited [1996] FJHC 104, in which the Court, held that the dismissal of the application for a judicial review of the Minister’s Wages Regulation (Road Transport) Order, cannot be a subject matter of a stay. This is because, there were no “positive steps ordered to be taken or required to be taken by either party in the Court’s dismissal of the application for judicial review nor had any consequence necessarily flowed from the Court’s decision”. Fatiaki J. concluded:

“it is difficult to accept how a non-coercive, non-executory order such as a bare dismissal of an action can be a subject-matter of a stay. In my view such an order is akin to a declaratory judgment which by its nature does not involve any “execution” which can be stayed.”

Counsel also referred to the Minister of Foreign Affairs v. Vehicle Supplies Ltd. {1991] 1 WLR 550 where Lord Oliver said, at p. 556:

“A stay of proceedings is an order which puts a stop to the future conduct of proceedings in Court before a tribunal at the stage which they have reached, the object being to avoid the hearing or trial taking place. It is not an order enforceable by proceedings for contempt because it is not, in its nature, capable of being “breached” by a part to the proceedings or anyone else.”

In this instance, it may well be argued the same. There has been a dismissal of the Appellant’s application to judicially review the Minister’s decision to compulsory acquire a portion of the Appellant’s land. The decision is by way of a Gazette Notice of 5 September 1997. Under the circumstances, the Respondent would argue, that there was no positive steps to be taken or ordered by the Court, and for which a stay would attach to. The dismissal does not enforce the Gazette Notice. If at the very most, allows the Minister to proceed to the second phase and apply to the Court under section 6 of the Act, to compulsory acquire the property in question.

I believe that there is merit in the Respondent Counsel’s arguments. It is true that Fatiaki J. and the Court of Appeal had granted stays in the previous proceeding of this case, but they were ordered because of the intimation made by Respondent’s officials that they were going to take physical possession of the land notwithstanding the Court proceedings. This is quite apart from the fact that the substantive action, namely, the application of judicial review had yet to be heard.

But even if the facts of this case were distinguishable from Shore Buses Ltd. (supra) the findings of this Court against the other grounds advanced by the Appellant in its support, do not in the end lend support to my granting a stay.

Application for stay is refused.

I award costs of $750.00 to the Respondent

F. Jitoko
JUDGE

At Suva
9 September, 2005