Chand v Pal [2010] FJHC 214; HBC127.2010L (28 June 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 127 of 2010L

BETWEEN:

PRAKASH CHAND
father’s name Bans Raj
Plaintiff

AND:

RAJ PAL
father’s name Gopal
1st Defendant

AND:

FIJI SUGAR CO-OPERATION
2nd Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr. K. Qoro for the Plaintiff
Solicitors: Messrs Qoro Legal for the Plaintiff

Date of Hearing: 28 June 2010
Date of Judgment: 28 June 2010

INTRODUCTION

[1] This is an ex-parte application by the Plaintiff, Prakash Chand, to restrain the Defendants from stopping him harvest his sugar cane crop. He also wants to freeze the cane payments for his farm from being paid out until further order.

THE APPLICATION

[2] The application is brought by Originating Summons in the expedited form pursuant to O 29 r 1 and O 7 r 2 of the High Court Rules 1988. It seeks the following orders:

1. That 1st Defendant by himself and/or his servants and/or his agents and/or whosoever be restrained from either physically or verbally or howsoever from interfering with the Plaintiff in cultivating and harvesting sugar cane grown on section 112 Lovu and on all that native land known as Nasauniwaqa No. 2 situated in the Tikina of Ba in the Province of Ba and containing an area of 17 acres on native lease with NLTB Ref: 4/7/2062 until the determination of the Agricultural Tribunal Ref W/D 05/10.
   
2. That 2nd Defendant by themselves and/or their servants and/or their agents and/or whosoever be restrained from releasing and/or paying out all current and future cane proceeds standing in the name of 1st Defendant as Grower 0199 Sector 112 Lovu to the 1st Defendant and/or his servants and/or his agents and whosoever until the determination of the Agricultural Tribunal Ref W/D 05/10.
   
3. That an Order that costs of this application be paid by the 1st Defendant.
   
4. That any other Orders this Honourable Court deems just and equitable.
   

[3] It is supported by Prakash Chand’s affidavit in which he says that the First Defendant Raj Pal, who now lives in Australia, is the registered lessee of approximately 27 acres of sugar cane farm land. The land is native land registered as Native Lease No 13052. Although Raj Pal is registered as the grower, he has been living in Australia all this time so it is Mr Chand who has been farming 17 acres of the land since 1995. Mr Chand’s brother, Pravin Chand, has been farming the other 10 acres of the farm.

[4] Prakash Chand says that in 1995 Raj Pal agreed to sell the farm to him for $40,000. He paid Raj Pal $11,000 as a deposit. The balance was to be paid from the sugar cane proceeds from the farm. Rental payments were deducted from the cane payments from the cane cultivated by him. But on 9 March 2010 solicitors acting for Raj Pal sent an eviction notice requiring him to vacate the farm within 30 days. He did not agree with the notice so he instructed his solicitors to file an application for relief against eviction and forfeiture and for declaration of tenancy under the Agricultural Landlord and Tenant Act (ALTA) in the Agricultural Tribunal which they did on 12 April 2010. This application is listed for mention on 20 July 2010 to fix a date for hearing. Since 16 June 2010, he says the Fiji Sugar Corporation (FSC) has told him that he can no longer cultivate the farm because Raj Pal has given that right to his brother, Pravin Chand, instead. He harvested 360 tonnes of sugar cane last year and he was hoping to harvest 350 tonnes this year until stopped by Raj Pal. He says Raj Pal gave him a power of attorney in 1989 until 1995 when it was given to his brother. He says until now he was authorised to operate Raj Pal’s ANZ Bank account and withdraw funds but the authority has been withdrawn and given to his brother. The cane harvesting season started 4 days ago and he stands to lose the whole of the proceeds from the cane he planted on his 17 acres of the farm.

CONSIDERATION OF THE APPLICATION

[5] Order 29 rule 1(2) of the HCR requires the plaintiff to show that there is urgency in bringing the application and that serious mischief or harm is likely to result if the court does not intervene: Whittaker v National Bank of Fiji Ltd [2009] FJHC 180; HBC155.2009L (31 August 2009); Facciola v Nasau [2010] FJHC 119; HBC064.2010L (8 April 2010)

[6] I am satisfied that unless I intervene now there is likely to be serious mischief or harm done to Prakash Chand.

[7] The law on the issue of an interim injunction is well settled. The applicant must show that

(i) there is a serious question to be tried

(ii) are damages an adequate remedy?; and

(iii) if the answer to (ii) is in the negative then where does the balance of convenience lie?: Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59; ABU0011.2004S & ABU0011A.2004S (26 November 2004).

[8] Although the question of whether Prakash Chand is entitled to a declaration of tenancy under ALTA is to be determined by the Tribunal, it is a serious question, in my view, that this Court should take into account. I am also of the view that this is a case where damages would not be an adequate remedy.

[9] This Court does not have jurisdiction to hear eviction proceedings under s 169 of the Land Transfer Act in respect of land under ALTA: Azmat Ali v Mohammed Jalil & NLTB [1986] FJCA; Civ App 111 of 1985; Reddy v Krishna [2009] FJHC 221; HBC114.2008L (9 October 2009). There is some doubt that the Tribunal has the power to grant injunctive orders of the type sought in this application. I think the balance of convenience lies in favour of Prakash Chand. He should be allowed to have his application for declaration of tenancy determined by the Tribunal and until then the status quo is to be maintained, that is to say, he should be allowed to occupy his part of the farm and harvest his sugar cane crop.

[10] The injunctive orders sought were to operate until the determination of the Agricultural Tribunal of the application for declaration of tenancy. I think this Court should have some measure of control over its orders so I grant the injunctions subject to them being in force until further order of this Court.

[11] I was also concerned that the land rent is paid to the NLTB so I grant the injunction to freeze the FSC cane payments save for the payment for the land rent.

ORDERS

[12] For these reasons I grant the application with these variations:

1. Order as per paragraphs 1 and 2 of the Originating Summons save for the restraint to be until further order of this Court and the restraint against cane proceeds shall not apply to payments for land rent to the NLTB.
   
2. Order for costs in paragraph 2 is reserved.
   
3. This Order, Originating Summons, Affidavit in Support and Acknowledgment of Service are to be served on all defendants within 3 days.
   
4. Service on the First Defendant shall be by registered post and personal service on his attorney Pravin Chand.
   
5. This matter is to be mentioned on 5 July 2010 at 9.30am.
   

Sosefo Inoke
Judge