Navunisinu v Vunivalu [2005] FJHC 589; HBC0072.2005 (3 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0072 OF 2005

BETWEEN:

JOPE NAVUNISINU
PLAINTIFF

AND:

SEMISI VUNIVALU
EPELI VALE NO 3
SAKARAIA LUVUNASAQA
VILIAME BULA
DEFENDANTS

Mr Vuataki for the Plaintiff
Mr Nacolawa for the Defendants

Date of Hearing: 14 April 2005
Dates of Submissions: 25 April, 12 May and 19 May 2005
Date of Ruling: 03 August 2005

INTERLOCUTORY RULING OF FINNIGAN J

The Plaintiff has obtained two interlocutory injunctions and by this application wants to have them made permanent. They were made ex-parte the day after he commenced this action [which is by writ of summons]. They have since been extended by consent until further order of the Court. So, this application need not be before me at all since the interim injunction would have done perfectly well until the trial.

I think the real object of the parties has been to test the interim injunctions and see whether they should be discharged now, in which case the Plaintiff’s action may fall by the wayside and wither away. The main thrust is by the Defendants. The difficulty faced by the Defendants is that while they have played all their evidentiary cards, the Plaintiff seeks only to make out a case for injunction by the 3 tests in American Cyanamid Company Ltd –v- Ethicon Ltd [1975] UKHL 1; [1975] AC 396. Is there a serious issue to be tried, are damages an adequate remedy, and if not where does the balance of convenience lie (all in that order)?

The submissions of both Counsel are a joy to read. They set an excellent standard for presentation, relevance, keeping to the point and for the authorities which they cite. Copies of everything referred to in the submission of each Counsel were annexed. They were neatly bound.

Not only that, they are refreshing in their direct and sometimes innovative use of English. That applies also to parts of the affidavits.

All of which has lead me to conclude that every part of this action has been run backwards. Briefly, the Plaintiff claims ownership of certain caves and the right to charge tourists $5.00 per head for entry. The Defendant has entered the Plaintiff’s well established market. It has recently claimed ownership of the caves and of the right to charge entry and it is now collecting the entry fees. The Plaintiff filed this action seeking a declaration of its right and injunctions to stop what the Defendants are doing. Those are the injunctions which have been made meantime, pending trial of the issues of fact and law, and they have been extended till then with the Defendants’ consent.

The Defendants meanwhile have filed a statement of defence and counter claim. There they reveal the nub of the dispute. In the words of their Counsel’s submissions:

“Lot 28 has always been in the legal possession of Mataqali Koro from the beginning of time till today, and no amount of collusion, fraud and/or unlawful acts by the Plaintiff and others can wrestle away the possession or ownership of Lot 28 from the Defendant’s Mataqali Koro.

It is fact however, that the Plaintiff Mataqali Rakirakinato has for the last 26 years been unlawfully claiming by mere strokes of ink pen amendments of the permanent record of the Registrar of Native Lands and illegally vesting the possession of Lot 28 to the Plaintiff Mataqali Rakirakinato. This unthinkable act of illegally amending the ownership of Lot 28 was done without any justification and/or basis and/or any shred of evidence at all. The fact that the Defendant Mataqali Koro had been silent for the last 26 years did not mean that the Defendants had accepted the illegal claim of the Plaintiff Mataqali Rakirakinato. Anything emanating for illegal action will always be illegal. It just meant that they did not have financial means to pursue legal action until their present Solicitor Mr Nacolawa decided to take up their case”.

It is really the Defendants who are the claimants. In his submissions, Counsel for the Plaintiff succinctly parries their thrust and makes one of his own;

“In his answering Affidavit Semisi Vunivalu does not deny the physical demands made on tourists and the entry on to the land referred to. But he agrees that the land was registered in the name of Tokatoka Koro but amended wrongfully. We submit that any question raised on that issue should be by way of legal action in the Courts and not the taking of the law into one’s own hands. If it respectfully submitted that until quashed or cancelled the title shows that the land belongs to Plaintiff Mataqali and there is a serious issue to be tried”.

In the affidavit he refers to the deponent on behalf of the Defendants had gone to the heart of the matter, had set out the history of the Defendant’s claim to legal title over the caves and then stated;

“......That based on the three claims deposed above and the reserve claim made under Ratu Sukuna it has established unequivocally and unambiguously and very clearly without any shadow of doubt that the piece of land which is the subject of this action belongs to Mataqali Koro”.

Decision

At this stage of proceedings I am bound to accept the submissions of Mr Vuataki for the Plaintiff and apply the principles that govern the granting of injunctions. It is not time to decide the substantive issue. The Court cannot do that until both parties have laid all their evidence before the Court. It is possible they could do that by affidavits without cross-examination since the issue between them is the legal issue of who has title and that is to be decided by reference to the public records. I have listed this matter for Friday 26 August and invite Counsel to respond by appearance that day. We will arrange a substantive hearing, probably by written submissions after any necessary further affidavits.

In the meantime it is not necessary or desirable to interfere with interlocutory injunctions and they will remain enforce until determination of the action.

There is no order for costs.

D.D. Finnigan
JUDGE

At Lautoka
03 August 2005