Niubalavu v Waqalevu [2010] FJHC 194; Civil Action 007 of 2010 (4 June 2010)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 007LAB of 2010

BETWEEN:

ROSALIA VALERIA TURACABECI NIUBALAVU
Plaintiff

AND:

1. SEREANA WAQALEVU
2. SIMI WAQALEVU
3. SAMUELA LOROSIO
Defendants

Counsels: Mr. John J Oswald-Jacobs [Howards Lawyers] for the Plaintiff
Mr. Nawaikula for the Defendants

Date of Decision: 4th June, 2010

DECISION
[Interim Injunction]

The plaintiff filed a writ of summons, an ex parte notice of motion and affidavits in support of both the substantive and the interim application.

The interim application seeks the following reliefs:

1. An injunction restraining the first defendant from intentionally coming within a distance of 100 meters of the plaintiff.

2. An injunction restraining each of the defendants from representing to 3rd parties that they or any person other than the plaintiff is the person entitled to enter in to lease or licence arrangements in respect of the property,

3. An injunction restraining each of the defendants from withdrawing or causing to be withdrawn or in any other way disposing of the amount of $4200 deposited by them with the Fiji holding Unit at Waiyeyo on 2.11.2009.

4. An injunction restraining each of the defendants from entering the property or causing any other person to enter the property and plant crops on the property or in any other manner interfere with the property.

5. Costs

6. Such other and order as the court may deem appropriate.

The motion was supported by two affidavits, one by the plaintiff and the other by the plaintiff’s partner.

When this case was called on 16.4.2010 at the High Court Labasa the defendants were granted 14 days to file affidavits opposing the plaintiff’s injunction application and further 14 days were granted to the plaintiff to file her reply and the matter was fixed for hearing on 21.5.2010 at High Court of Suva.

However, the defendants failed to file their affidavit in time. A lawyer clerk filed a motion together with an affidavit seeking leave to file affidavits of the defendants opposing the plaintiff’s injunction application. It says that the defendants were affected by recent cyclone and therefore they needed time to sell their crops to pay their passage to come to Suva.

The reasons for delay were given not by the defendants but by a lawyers clerk who had no knowledge about the difficulties faced by defendants.

The letter dated 12.2.2009 sent by the plaintiffs’ solicitors to the defendants had clearly put the defendants on notice that these injunctions would be sought against them. So it is obvious that despite that warning the defendants did not act with due diligence.

Therefore, it is apparent that the defendants had ample time to get prepared and file affidavits though they failed to do so. Hence, the defendants’ reasons for the delaying in filing affidavits were far from satisfactory and I observed no merits on these grounds to grant them an another opportunity to file affidavits on the hearing date of the interim injunction.

Therefore, the defendants were not allowed to file affidavits on the hearing date.

However, the defendants’ counsel was allowed to make his submission opposing the plaintiff’s application for injunction.

The evidence on which the plaintiff rely to support her claim is mainly to be found in the affidavits filed by the plaintiff and her partner.

The relevant parts can be summarised as follows:

According to the plaintiffs affidavit the plaintiff is the registered proprietor of the land in dispute. The true copy of the certificate of titles marked as RVTN1 is annexed.

The 1st,2n, and 3rd defendants had each been granted a licence to occupy 5 acres of the property free of any licence fee on the basis that it was revocable at any time.

The licence was granted to them by the plaintiff’s predecessor as registered proprietor of the property namely Kawakawadawa (Fiji) Limited (KKD).

The defendants had purported to lease parts of the property to third parties and had signed documents with third parties.

The plaintiff had arranged a meeting with defendants to inform their intention to revoke the Licence but the defendants did not attend the meeting. Thereafter the plaintiff prepared a letter addressed to the defendants revoking the licence. A copy of that letter dated 24.12.2010 marked as RVTN2 is annexed.

At the same time, one Wright who is the Plaintiff’s de facto spouse in his capacity as a director of KKD prepared a letter addressed to the defendants demanding repayment of the 3rd party rent. A copy of that letter marked as RVTN 3m is annexed.

When the plaintiff attended at the home of 1st and 2nd defendants to serve the Notice of Eviction and the Notice of Demand the plaintiff was informed by the defendants that they had already entered into the purported lease with 3rd parties and had collected rent from the 3rd parties.

A receipt in respect of money deposited by the defendants with the Unit Trust of Fiji in Waiyevo dated 2.11.2009 marked as RVTN 4 is annexed.

Subsequently an argument ensued between the plaintiff and defendants and as a result of that the plaintiff and her partner were assaulted and her vehicle was damaged by the defendants.

Later both of them attended the Taveuni Hospital for medical treatments. The police have brought charges against the first defendant in respect of the injuries sustained by the plaintiff.

On or about 9th March 2010 the plaintiff was informed by the Managers that some third parties who are members of the Wailevu Youth Group were directed by the defendants to plant crops.

The plaintiff further stated that the defendants do not have and never had any authority to enter on or occupy the property or cause any other person to enter on or occupy the property.

The counsel for the defendants informed that he relied on the fact of the statement of defence filed on 20.5.2010. He further submitted that the defendants would give an undertaking to the averments 1 and 2 of the plaintiff’s motion.

It was also submitted that the defendants would give an undertaking to pay a sum of $4200 should the court find the defendants liable. The counsel for the defence further argued that if the injunction in terms of the averment 4 of the motion is granted it would be caused more harm to the defendants as they were occupying the land .The fact that the defendants were occupying the land was admitted by the plaintiff also.

Therefore the counsel for the defendants requested that the defendants be allowed to remain in the land until the final determination of this action.

The plaintiff’s counsel argued that the statement of defence filed by the defendants was not evidence but only a pleading and therefore cannot be considered for the inquiry in respect of injunction.

While reiterating the facts contained in the plaintiff’s affidavit, the plaintiff’s counsel further submitted that if the injunction is not granted the plaintiff would suffer great damages as she would find difficult to evict the 3rd party and also prospective 3rd party tenants would be encouraged to occupy the land.

In support of the 4th injunction order requested in the motion, the main argument advanced by the plaintiff’s counsel was that if the defendants are not restrained from entering the property it would be misconstrued in the local community as meaning that the plaintiff does not have rights in the property in dispute and it would encourage prospective tenants to enter into invalid lease or licence agreements with the defendants.

He further contended that the balance of convenience favoured heavily to the plaintiff.

The Relevant Legal Principles.

In deciding whether to grant an interim injunction the cardinal factors ought to be considered are:

1. Is there a serious question to be tried?

2. Is damage an adequate remedy?

3. Where does the balance of convenience lie?

Both counsels argued the matter having regard to the principles enunciated in the leading case of American Cyanamid Co v. Ethicon Ltd (1975) A.C.396.

The House of Lords there decided that in all cases, the court must determine the matter on a balance of convenience there being no rule that an applicant must established a prima facie case. The extent of the court’s duty in considering an interlocutory injunction is to be satisfied that the claim is not frivolous or vexatious. In that judgment Lord Diplok stated the object of the interlocutory injunction as follows:

"....the object of the interlocutory injunction is to protect the plaintiff against injury by violation of his rights 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.

A parallel view was expressed by Mc Carthy P. while explaining the purpose of an interim injunction In Northern Drivers Union v Kawau Island Ferries Ltd (1974) 2 NZLR 617 at 620 and 621) where he stated:

"The purpose of an interim injunction is to preserve the status quo until the dispute has been disposed of on a full hearing. That being the position, it is not necessary that the court should have to find a case which entitle the applicant to relief in all events: it is quite sufficient if it finds one which shows that there is a substantial question to be investigated and that matters ought to be preserved in status quo until the essential dispute can be finally resolved.....

...."It is always a matter of discretion, and as the citation from Lord Pearce endorses, the court will take into consideration the balance of convenience to the parties and the nature of injury which the defendant, on the one hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right;

In Hubbard & Another v. Vosper & Another (1972) 2 WLR 389, at 396 Lord Denning gave some useful guidance on the principle for granting injunction. In that case Lord Denning said:

"In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then, decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times, it is best not to impose a restraint but leave him free to go ahead"

Further, in regard to the balance of convenience I Would refer the following passage from the judgment of Cook J in Kissers Farmhouse Bakeries ltd v. Harvest Bakers Ltd [1985] 2NZLR 129 (CA) at 142:

"Whether there is a serious question to be tried and the balance of convenience are two broad questions providing an accepted framework for approaching these applications. As the NWL speeches bring out, the balance of convenience can have a very wide ambit. In any event the two heads are not exhaustive. Marshalling consideration under them is an aid to determining, as regards the grant or refusal of an interim injunction, where the overall justice lies. In every case the judge has finally to stand back and ask himself that question. At this final stage, if he has found the balance of convenience overwhelmingly all vary clear one way.... it will usually be right to be guided accordingly. But if the other rival considerations are still fairly evenly poised, regard to the relative strengths of the cases of the parties will usually be appropriate. We use the word "usually" deliberately and do not attempt any more precise formula: an interlocutory decision of this kind is essentially discretionary and its solution cannot be governed and is not much simplified by generalities."

I will consider the evidence and the submissions of both parties in the light of the above legal principles.

It is established that a sum of $4200 collected from 3rd party tenants by the defendants have been deposited in the FHU at Waiyeyo on 2.11.2009.

The counsel for the defence informed the court that the defendants would give and undertaking to the averments 1 and 2 of the notice of Motion and also would give an undertaking to pay $4200 if they are found liable by the courts.

Since it is a liquid asset and can be determined at the end of the substantive matter I decide that the damage is an adequate remedy in respect of injunction 3.

Therefore the court has to consider only the 4th injunctive relief sought by the defendants.

The Plaintiff in his affidavit has admitted the fact that the defendants were living in the property as licence holders. The defendants were granted the licence by the plaintiff’s predecessors.

However the plaintiff has not tendered a copy of the said licence.

The plaintiff has also admitted that the defendants had planted crops on the land.

So the court has to consider whether damage will be sufficient and whether more harm will be done by the granting or refusing the injunction.

The plaintiff claims that she is the registered proprietor of the property and is the sole person entitled to possess the property.

The plaintiff’s partner in his affidavit claims that he had made a $6000.00 loan to each of the defendants to subscribe the shares in the KKD (Fiji) Ltd but the defendants have defaulted under their loan agreement and consequently each of their shareholdings have now been forfeited to him.

It could be observed that the plaintiff has admitted the defendant’s occupation in the property under a licence given by her predecessor, and further the averment No 16 of the plaintiff’s affidavit also reveals that the defendants had shares over this property.

However, neither the plaintiff nor her partner was able to produce any reliable evidence to prove the existence of such a loan agreement and the alleged forfeiture of the shareholding of defendants.

It may well be that at the trial the plaintiff might be able to establish who the rightful owner is but at this stage it has not sufficiently been established in order to get an injunction in terms of the prayer 4 of the motion.

Also there was no evidence to show that the defendants’ occupation in the property would cause any damage to the property. Hence, it does not manifest that a grave prejudice or irremediable loss would cause to the plaintiff if the defendants are not evicted from the property before the final determination of this action.

The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater than that which the defendant will suffer if it is granted lies on the plaintiff. Donmar Productions Ltd v. Bart [1967]2 All ER 338 at 339

The plaintiff must also as a rule be able to show that an injunction until the hearing is necessary to protect him against irreparable injury; mere inconvenience is not enough.

It is important to be noted that in the plaintiff’s affidavit she has not stated at all whether what loss she would suffer if the injunction is not granted.

The court has to assess and weigh the relevant strength of the parties’ case to determine whether the application should succeed. The "balance of convenience" is examined to decide what status quo is to be maintained and in whose favour the discretion should be exercised.

At the same time the court must be careful not to impose an injunction in wider terms than are necessary to do justice in the particular case.

In this case it is evident that the defendants have been occupying a potion of the land for a considerable period as share holders of the plaintiff’s predecessor KKD Fiji LTD. Also there is no evidence to show that the defendants are causing any damage to the said property.

Therefore I decide that the occupation of the land by the defendants will not cause any irreparable loss or grave prejudice to the plaintiff.

However if the defendants are restrained from entering the property before the final determination of this matter it would cause more inconvenience to the defendants than the plaintiff.

Therefore, in respect of injunction 4 the balance of convenience, in my view, is clearly in favour of the defendants.

Further I am of the view that if the court issues an injunction to restrain the defendants from entering the property or requires them to vacate any garden which they have already in cultivation it would amount to an eviction order and the plaintiff would be given the relief claimed in the writ.

It is not the practice of the court to grant an interlocutory injunction which will have practical effect of granting the sole relief claimed. Dodd v. Marine Workers Union (1923) 93 L.J.Ch 65

For the above reasons and bearing in minds the facts and circumstances of this case I do not issue an injunction in terms of the prayer 4 of the motion against the defendants to restrain them from entering the property, or require them to vacate any portion which they have already planted.

However the defendants are ordered not to extend their garden or cultivation any more.

Therefore I vary the orders sought in the motion as follows:

1. The first defendant is restrained from intentionally coming within a distance of 100 meters of the plaintiff.
   
2. Each of the defendants are restrained from representing to third parties that they or any person other than the applicant is the person entitled to enter in to lease or licence arrangements in respect of the land more particularly described in Certificates of Title bearing serial numbers 28421, 28422, 28423,28428,28429,28430,28431,28432,28433,28434,28435,28436&28437, and being the property now known as and situated at Pamesitoni Farm, Rata Penaia Drive, Soqulu, Taveuni.
   
3. Each defendant is restrained from extending their garden or cultivation anymore.
   
4. The plaintiff is ordered to give its undertaking as to damages.
   
5. Costs in the cause.
   

Pradeep Hettiarachchi
JUDGE

At Suva
4th June 2010.