Sukunabulisau v Karavaki [2010] FJHC 269; HBC136.2009 (26 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 136 OF 2009

BETWEEN:

ASERI SUKUNABULISAU, WAME SAUSAU,
SEMITI TAOI, TEVITA WAQAMAILAU,
EPELI TIKOI being the Trustees of Seventh Day Adventist Church in Fiji
PLAINTIFFS

AND :

SEMESA D KARAVAKI, MELI BENUCI, TEVITA
BEVU, SOSICENI TAMANI, RAMISESE TAMANI
being the Trustees of Mahanaim Seventh Day
Adventist Laymen’s Ministry
FIRST DEFENDANTS

AND:

THE REGISTRAR OF TITLES
SECOND DEFENDANT

Mr S Parshotam with Mr S Singh for the Plaintiffs
Mr S Karavaki for First Defendants
Ms K Vuibau for Second Defendant

DECISION

This is an application brought by the Plaintiffs by summons dated 21 April 2009 seeking the following orders:

"1. An injunction restraining the 1st Defendants whether by themselves, their servants or agents or otherwise howsoever from using the name "Seventh Day Adventist."

2. An injunction restraining the 1st Defendants whether by themselves, their servants or agents or otherwise howsoever from collecting "tithe" and special offerings using the specially marked "Seventh Day Adventist Church" envelopes.

3. An enquiry as to damages or at the Plaintiffs’ option an account of profits.

4. An Order that the 2nd Defendant strikes out the name "Seventh Day Adventist" from the Memorial of the Names of Trustees registered by it under the Religious Bodies Registration Act Cap 68 on 16 January 2009 for the first Defendants

5. Such further and/or other orders that the Honourable Court deems just.

6. Cost of the application."

In support of its application the Plaintiffs filed an affidavit by Wame Sausau sworn on 20 April 2009.

The application was initially listed before His Lordship Mr Justice Inoke on 11 June 2009. His Lordship made certain procedural orders and relisted the application for mention on 25 June 2009. On that day the Judge gave directions for substituted service and again relisted the application for further mention on 9 July 2009. That date was subsequently vacated and the application came before me for mention on 20 July 2009.

On that day I gave directions for the filing of affidavit material in respect of the application. The application was relisted for mention on 14 September 2009. As the affidavit material had not been filed as directed, further orders were made on 14 September 2009 for the parties to file their affidavit material and again the application was listed for mention on 28 October 2009.

In the meantime the First Defendants had filed a summons on 11 September 2009 seeking an order from the Court to strike out the Plaintiffs’ Statement of Claim pursuant to Order 18 Rule 18 of the High Court Rules. In order to expedite the hearing of the interlocutory applications, the First Defendants Summons was listed for mention on 7 October and for hearing on 9 October 2009. In an ex tempore ruling, the application was dismissed and further directions were given to enable the application for injunctive relief to be determined expeditiously. That application was listed for further mention on 30 October 2009.

The First Defendants filed an answering affidavit sworn by Mereia Volavola on 10 September 2009 and a second affidavit sworn by Ramisese Tamani on 22 October 2009.

The Second Defendant filed an affidavit sworn by Torika Goneca on 29 September 2009.

The Plaintiffs filed two reply affidavits both made by Wame Sausau and both sworn on 18 November 2009. One was in reply to the affidavit of Ramisese Tamani and the other replied to the answering affidavit of Torika Goneca.

The application was heard on 3 December 2009. The parties made extensive submissions on the disputed factual material together with some helpful submissions on relevant case law.

Counsel for the Plaintiffs indicated at the commencement of the hearing that order 3 was no longer being pursued and that the Plaintiffs maintained their application for interim orders in terms of paragraphs 1, 2 and 4 to 6 as set out in the Summons.

As I have already indicated, there was a substantial amount of disputed factual material in the affidavits that were filed in this application. Furthermore all the affidavits improperly contained a considerable amount of disputed legal argument and disputed assertions, in some cases without any factual basis.

The action was commenced by writ and ultimately a hearing will be required to test the evidence before final orders can be made. The present application can only be regarded as an application for interim injunctive relief under Order 29 of the High Court Rules.

The affidavit in support of the Application provided some background material in relation to the Seventh Day Adventist Church. The relevant material in the affidavit may be stated briefly. The Church was established in the United States in 1863 and has been present in Fiji since 1891. It is well established in Fiji as a respected religious organisation. It is now registered under the Religious Bodies Registration Act Cap 68 (the Act) and operates under a written Constitution. The number of followers in Fiji was estimated in 2007 to be around 32,000. The Church owns a substantial amount of real estate related to its work in Fiji including the operation and/or overseeing of 13 schools. Apart from a small Government contribution for tuition fees, these schools are funded by contributions from church members.

The affidavit also states that the church’s activities are undertaken by departments. The name "Seventh-Day Adventist Church" has generated enormous goodwill which is relied upon to draw financial support for its various charitable activities.

Apart from that financial support, each Saturday of every week, church members make their tithe and freewill offering contributions to the church in specially marked envelopes. The tithe and freewill offering are central to the proper functioning of the Church.

The affidavit in support goes on to describe the First Defendants as the leaders of a breakaway group of people who conducted a series of meetings over a period of six weeks. The Plaintiffs publically disassociated the Church from the Group and the meetings.

It is alleged that the First Defendants at those meetings used the Church’s envelopes for collecting the tithe and freewill offering contributions which have not been forwarded to the Church nor have they accounted to the Plaintiffs as to the use of the funds thus collected.

The First Defendants registered the name Mahanaim Seventh-Day Adventist Laymen’s Ministry on 19 January 2009 with the Second Defendant pursuant to the provisions of the Act. It is claimed that some of the principles adopted by the First Defendants are contrary to the Church’s principles. It is alleged that the First Defendants have publically associated themselves with the Plaintiffs and the Church.

The Plaintiffs submit that the First Defendants by copying or incorporating the Church’s name into the name of its registered religious body are and will continue to pass off the Church’s acquired goodwill and reputation as their own.

The Plaintiffs also submit that the use of the Church’s name by the First Defendants is calculated to deceive other church members and the general public into believing that the First Defendants are part of the Plaintiffs and the Church. The Plaintiffs submit that the use of the Church’s name is intended to deceive people into believing that donations and contributions made to the First Defendants’ registered religious body were being made to the Seventh-Day Adventist Church or to an organization connected to or associated with the Seventh-Day Adventist Church.

As such the conduct of the First Defendants, it is claimed, could cause confusion in the minds of church members and the public with consequential reduced contributions to the Church thereby hindering the charitable and educational work of the Church.

The affidavit filed by the First Defendants in opposition to the application disputed most of the factual material in the Plaintiffs’ supporting affidavit.

It is claimed that the term "Seventh-Day Adventist" prior to 1863 was a term identifying those who upheld the beliefs associated with the name and that 1863 was the date when those who had adopted the lifestyle associated with the name organised themselves for administration purposes. As a result the affidavit states that the term "Seventh-Day Adventist" is to be regarded as a generic name. There are also a number of assertions in relation to the effect of registration under the Act and registration under the Companies Act Cap 247.

The affidavit claims that the Tithe and the Offering are the only source of funding. It is stated that there are many ways of paying tithe and offering to the Church and that putting the tithe in the prepared envelopes during the conduct of the service is only one of the ways to make such payment.

It is claimed that the Seminar in Suva between September and October 2008 was conducted by members of local Seventh-Day Adventist Churches in Suva. It is claimed that these members were properly released by their local churches. The Plaintiffs’ disclaimer in the media overruled the decision of the local Churches. Despite the disclaimer, members of the Church attended the Seminar.

The Affidavit claims that the envelopes used at the Seminar for Tithe and Offering collections were obtained and purchased from the Church’s Mission Office in Suva. Local Seventh-Day Adventist Churches can obtain envelopes from that office. The affidavit sets out what were the administrative arrangements in respect of the Tithe and Offering on each of the Sabbath Day Services. Tithes were to be given to local churches and the free will offering was collected in the envelopes to assist in the expenses of running the seminar. Despite this arrangement it is claimed that members attending the Seminar insisted on giving the tithes to the Committee organizing the Seminar.

The affidavit exhibited a letter dated 16 October 2008 from the Seventh-Day Adventist Fiji Mission President that set out four reasons why the Defendants had been denied permission to baptize candidates.

The registration of the name Mahanaim Seventh-Day Adventist Laymen’s Ministry is admitted by the Defendants. The Defendants state that there cannot be any confusion. It is also claimed that the name "Seventh-Day Adventist" is a generic term, its use cannot be prevented by the Plaintiffs.

It is also claimed in the affidavit that the Church leadership has warned members not to become involved with or attend activities conducted by the First Defendants.

The first Defendants claim that the Plaintiffs did not object to the name "Seventh-Day Adventist" being used by two other organisations that have the full names of "Seventh-Day Adventist Laymen’s Ministry" and "Seventh-Day Adventist Christians Layman Movement". Both organizations are registered under the Charitable Trusts Act Cap. 67.

Paragraph 35 of the affidavit in opposition provides an indication as to what is the real issue in these proceedings. It is first of all stated that as a result of publicity, the people in Fiji are well aware of the difference between the First Defendants and the Plaintiffs. The Deponent then states that he verily believes that "many have come to believe in the gospel preached by the First Defendants, have been baptized by the Plaintiff and are attending local churches."

In paragraph 37 there is an assertion that it is the Plaintiffs who must not use the name "Seventh-Day Adventist" if they have deviated from the principles identified with the name. The First Defendants deny that they are not upholding the principles of the name and therefore can use the name. As the differences between the First Defendants and the Plaintiffs are well known there can be no confusion and as a result members are able to make a choice and so can members of the public when it comes to funding.

Finally the First Defendants state that they have complied with the church’s grievance procedure by appealing to the President of the Trans Pacific Union Mission at Tamavua. No decision has been handed down. The appeal was dated 19 April 2009.

The affidavit in reply filed by the Plaintiffs responded to the contested factual material. First, the deponent provided some historical factual information concerning the origins of the name and the establishment of the Seventh-Day Adventist Church in the United States and in Fiji.

Secondly, the deponent provided material to demonstrate the existence of the Seventh-Day Adventist Church in Fiji from as early as 1899. In 1902 members of the Church were accepted for registration by the State as marriage celebrants. Therefore prior to registration under the Act, the State had for many years recognised members of the Church as marriage celebrants. Prior to registration the Church was organised in both Fiji and Australia as unincorporated Associations. The affidavit takes issue with the assertion that the name Seventh-Day Adventist is a generic term that can be used at will and cannot be the property of the Plaintiffs.

The deponent asserts that the Church has built goodwill over a period of years and through its various charitable works for the benefit of disadvantaged or disenfranchised groups has developed a good reputation.

It is also claimed that apart from the tithe and good will offering, Church funding is derived from donations from individuals and organisations both local and abroad, from Government grants for its schools and from community development projects.

It also claimed that generally tithe is paid by using the specially marked Church envelopes.

The deponent states that the disclaimer was published by the Church in its supervisory role of all local churches.

It is denied that tithe envelopes are sold anywhere and as a result no tithe envelopes were sold to the First Defendants.

The Plaintiffs take issue with the assertion that there will not be any confusion. In what can be more appropriately described as a submission, the deponent states that the use of the words "Seventh-Day Adventist" is likely to confuse because it has been copied by the First Defendants and yet the name has been associated with the Plaintiffs for over 100 years.

Although letters have been written to Church members by the Plaintiffs, members of the public are not so informed about the differences between the Plaintiffs and the First Defendants.

As for the registration of two organisations under the Charitable Trust Act, the deponent points out that the First name had been authorised and the body was approved for registration.

In respect of the second entity, the Church has written to the organisation requesting it to stop using the words "Seventh-Day Adventist" in its name.

The deponent points out that the name "Seventh-Day Adventist" represents not only a set of religious principles but also a body of unique organisational structure, world wide church affiliation and reputation. The Deponent also submits that although their respective office locations are different, some Church members and the general public will continue to associate the First Defendants with the Church because of the use of the name "Seventh-Day Adventist".

As the deponent points out in paragraph 34, the First Defendants appear to be uncertain as to their status by using a Church mechanism (the right of appeal). However the appeal is not directly concerned with the issues raised by these proceedings.

The principles to be applied by this Court on an application for an interim injunction are well established and well known. The principles were stated by the House of Lords in American Cyanamid Co. –v- Ethicon Ltd [1975] UKHL 1; [1975] AC 396 and applied by the Fiji Court of Appeal in Natural Waters of Viti Ltd –v- Crystal Clear Mineral Water (Fiji) Ltd (unreported civil appeals No. 11 and No. 11A of 2004 delivered 26 November 2004).

First, the Plaintiff is required to demonstrate that there is a serious question to be tried. The Court should be satisfied that the claim is not frivolous or vexatious. Whether there is a serious question to be tried is determined by considering the Plaintiff’s claim endorsed on the Writ as required by Order 29 Rule 3 of the High Court Rules and the affidavit in support of the application.

Secondly, the Court must be satisfied that an award of damages would not be an adequate remedy for the Plaintiff.

Thirdly, the Court must determine where the balance of convenience lies.

It is also appropriate for the Court to consider the overall justice of the case before exercising its discretion to grant the application.

On the first issue of whether there is a serious question to be tried, the Plaintiffs filed a Writ on 22 May 2009. The Writ had been issued by the Court on the same day. The Writ was endorsed with a brief statement of the Plaintiffs’ claim. The relief claimed in the endorsement was identical to the orders sought by the Plaintiffs in the application for injunctive relief. That fact alone would not be sufficient objection to granting the relief sought in the application. (See Woodford and another v. Smith and another [1970] 1All ER 1091). However the endorsement provides no facts upon which the Court could determine whether there was a serious question to be tried. The affidavit in support is filed for the purpose of obtaining an interim injunction and is not filed for the purpose of obtaining a final judgment. Although it is required to depose to material evidence, there were at the time no facts pleaded which the affidavit material could prove.

On 28 October the Plaintiffs filed a Statement of Claim. The First Defendants filed their Defence on 13 November 2009 and the Second Defendant did so on 18 November 2009.

The Plaintiffs pleaded that they are the Trustees of the Seventh-Day Adventist Church in Fiji.

In summary, the Plaintiffs claim that through the religious, charitable, commercial and quasi-commercial activities undertaken by the Church, the term "Seventh-Day Adventist" has become known as a significant religious body thus acquiring a substantial reputation in and by the use of the name.

The Plaintiffs claim that the First Defendants are the leaders of a break-away faction and have registered a religious body known as "Mahanaim Seventh-Day Adventist Laymen’s Ministry" thereby passing off the Church’s reputation as also being their reputation. The Plaintiffs claim that the First Defendants have intruded upon and interfered with the goodwill acquired by the Plaintiffs registered as trustees of the Seventh-Day Adventist Church in Fiji.

The Plaintiffs also claim that the use of the name "Seventh-Day Adventist" by the First Defendants is misleading or likely to be misleading and misrepresents to Church members and the public the actual nature of the break-away faction that would damage the Plaintiff’s various activities.

The Plaintiffs also pleaded that the use of the name "Seventh-Day Adventist" by the First Defendants is calculated to deceive Church members and the public into believing that the First Defendants are related to the Plaintiffs. The plaintiffs claim that the First Defendants actions will or are likely to cause confusion in the minds of the general public thereby hindering and/or affecting the charitable works of the Church. There is a further allegation that the First Defendants have wrongfully and unlawfully collected tithes and free will offering using envelopes marked in the Plaintiffs’ name.

The lengthy affidavit material filed by the parties in respect of the application has already been considered in detail in this decision.

Having read the Statement of Claim, and the affidavit material and after considering the submissions I have concluded that there is a serious question to be tried and that the Plaintiffs’ claim is neither frivolous nor vexatious. I now set out my reasons for that conclusion.

As a great deal of reliance was placed by the First Defendants on the issue of registration under the Act, I shall first consider the application of that Act to the present proceedings.

It is not necessary to go any further than the long title of the Act to determine its relevance to these proceedings. The long title states

"An Act to Regulate the Registration of Religious Bodies and their representation by Trustees for the purpose of Suits and for the Holding of Land".

The Act is concerned with facilitating the commencement of proceedings by or against a religious body and with facilitating the issuance of Certificates of Titles to a religious body wishing to become a registered proprietor of land. The Act does not prescribe registration as an essential pre-requisite for its existence or recognition in order to carry out its core functions. Non registration does not imply or even suggest non-existence.

The date on which the Seventh-Day Adventist Church became registered under the Act for the purposes stated in the long title of the Act does not in any way indicate when the Church commenced its religious and charitable activities in Fiji. Nor does that date in any way affect the fact that the Seventh-Day Adventist Church had a presence and was recognised in Fiji some one hundred years prior to registration.

The consequences of registration under the Charitable Trusts Act Cap 67 are wider but also include the same purposes as the Act. In order to avoid confusion and duplication section 31 of the Charitable Trusts Act states:

"Nothing in this Act shall affect the operation of the Religious Bodies Registration Act and the provisions of this Act shall not apply to any religious body registered under such Act."

The next relevant consideration is the Constitution of the Seventh-Day Adventist Church in Fiji which is referred to in paragraph 6 of the Plaintiffs’ Affidavit in support. There is no indication as to when it came into effect.

However there is a notation on page 9 that it was revised in January 2009. There is no material before me to indicate in what way or to what extent the document was revised.

The First Defendants did not make any express reference to the Church’s Constitution or to its application or relevance to the Plaintiffs claims for an injunction. However there are a number of provisions that are relevant to the application by the Plaintiffs to restrain the First Defendants from using the name "Seventh-Day Adventist".

Article 1 – Name

"This organisation shall be known as the Seventh-Day Adventist Church in Fiji (otherwise known as, "SDA Church", "Adventist Church", "Lotu ni Kavitu"; however, in this document the term "the Mission" will be used to refer to the organisation. See appendix). The Mission is a part of the Trans Pacific Union Mission of the Seventh-Day Adventist Church ("the Union") which in turn is a part of the South Pacific Division of the Seventh-Day Adventist Church ("the Division"). The Division is a division of the General Conference of Seventh-Day Adventists ("the General Conference") a world church organisation; and all purposes, policies and procedures of the Mission shall be in harmony with the working policies and procedures of the Union, Division and the General Conference. The Mission shall pursue the mission of the Seventh-Day Adventist Church ( the Church) in harmony with the doctrines, programs and initiatives adopted and approved by the Union, Division and the General Conference of Seventh-Day Adventists at their constituency or executive committee meetings."

Article 3 – Object

"The objective of the Mission and any affiliated entity or entities of the Mission is to facilitate the proclamation of the everlasting gospel of our Lord and saviour Jesus Christ, in the context of the messages of the three angels of Revelation 14:6-12; leading people to accept Jesus as Saviour and Lord as they become His disciples and responsible members of the Church; and nurturing them in preparation for His soon return".

Article 4 – Membership

"The membership of the Mission shall consist of such churches as have been or shall be properly organised and accepted by vote of the Mission."

These clauses indicate that the Plaintiffs are the trustees of an institution in Fiji that is structured and has an international organisation. Each local church must be properly organised and accepted by vote to be part of the institution in Fiji. There was no material before me, to indicate that the First Defendants’ orgnisation had been accepted by vote.

The Appendix to the Constitution is also relevant to the application. It refers to the use of the Church name and the logo as trademarked and registered identities. The name is described as a proper name and its spelling, abbreviations and pronunciation are prescribed. There are also guidelines for the use of the name Seventh-Day Adventist as a trademark.

The next relevant consideration was raised by Counsel for the First Defendants who submitted that the provisions of the Trade Marks Act Cap 240 effectively prevented the Plaintiffs from bringing an action for passing off. Counsel’s submission was complex. However it is not necessary to examine it in detail.

Registration of a registrable trade mark generally gives exclusive right to the use of such trade mark to the person registered as the proprietor of the trade mark. (See section 38 of the Trade Marks Act).

It is not necessary to determine the question of trade mark registration as section 60 of the Trade Marks Act states:

"Nothing in this Act shall be deemed to affect the rights of action against any person for passing off goods as those of another person or the remedies in respect thereof".

Section 60 expressly provides that the action for passing off is an independent cause of action that is in no way affected or limited by the provisions of the Trade Marks Act. Although the cause of action preceded the Trade Marks Act it still offers protection in respect of names, goodwill and reputation whether or not there is a registered trade mark in respect of the name.

In order to establish a claim for passing off, the Plaintiffs must prove a relevant misrepresentation, a reputation and that they (the Church trustees) have suffered actual or potential damage as a result of the misrepresentation. The Plaintiffs have pleaded the necessary facts to establish the cause of action and there is sufficient material in the affidavit to conclude that there is a serious question to be tried.

In British Diabetic Association –v- Diabetic Society Ltd and Others [1995] 4 All ER 812 Robert Walker J observed at page 820 that:

"The scope of a passing off action is wide enough to include deception of the public by one fund-raising charity in a way that tends to appropriate and so damage another fund-raising charity’s goodwill – that is, the other charity’s "attractive force" in obtaining financial support from the public".

In Holy Apostolic and Catholic Church of the East and Others –v- Attorney-General (New South Wales) on the relation of Elisha and Others (1989) 18 NSWLR 291 at 292 the New South Wales Court of Appeal approved the following statement of the Judge at first instance:

"As a matter of general principle, I cannot see any reason why a religious organisation should not have the same protection as to the goodwill in its name as is afforded by the law to commercial organisations. Surely whilst religious organisations may not have ordinary commercial goodwill, they have something closely analogous thereto in that their reputation will be damaged by people falsely ascribing as an adjunct to them the organisation which is holding itself out by a deceptively similar name".

Both these authorities cited with approval the decision of Parker J in the American case of Purcell and Others –v- Summers and Others 145 F 2d 979 (1944).

I accept these authorities since I was not referred by Counsel to any case law in Fiji which would require me to take a different view of what is or should be the position in Fiji.

However Counsel for the First Defendants submitted that they cannot be restrained from using the name "Seventh-Day Adventist" because it is a generic expression and can be used by any person in appropriate circumstances. This claim was dealt with by Parker J in Purcell –v- Summons (supra) at page 988:

"It is said that the words "Methodist" and "Episcopal" are generic terms and that defendants have the right to use them for that reason, but defendants are not proposing to use either of these words in a new name so different from the old that no confusion could result. ... the question is not whether they have the right to use "Methodist" or "Episcopal" in a new name so constituted as to avoid confusion, but whether they have the right to use the old name in a way that amounts, as we think it does, to implied misrepresentation to the damage of the Plaintiffs."

The fact that the First Defendants have led a break-away movement from the Church would not justify their use of the name "Seventh-Day Adventist" when they named their break-away group. The right to use the name "Seventh-Day Adventist" inheres in the institution, not in its members; and, when they formed their break-away organisation, use by them of the name is misleading, and, if such use causes injury to the Church, should be restrained (See Purcell –v- Summers supra at page 987).

In the course of the proceedings before me, it became apparent that there was some uncertainty as to the present status of the First Defendants in the sense that it was not entirely clear whether they were still members of the Church.

However it most probably does not greatly affect the outcome of this application. If the First Defendants are still members of the Church, they are defying what is a lawful and proper directive from the Plaintiffs. If they are no longer members of the Church, the First Defendants are a party to an action that raises a serious question to be tried.

On the material before me it is apparent that the First Defendants are intent on establishing a new organisation. Apart from registration for the purposes of litigation and holding property under the Act, the First Defendants and the members of their group have adopted a Constitution. This document which was part of Annexure D to the Plaintiffs’ supporting affidavit, makes provision for a separate executive committee and for the management of its finances.

The next question is whether an award of damages would be an adequate remedy for the Plaintiffs. I am satisfied that it would not be practicable to attempt to establish the impart of any confusion in the minds of church members and the general public. Under those circumstances it is difficult to conclude that damages can be an adequate remedy.

Furthermore I am satisfied that both the balance of convenience and the overall justice of the case favour the Plaintiffs for the many reasons that have been discussed in this decision. As Parker J in Purcell –v- Summers (supra) said at page 987:

"Men have the right to worship God according to the dictates of conscience; but they have no right in doing so to make use of a name which will enable them to appropriate the good will which has been built up by an organisation with which they are no longer connected."

I am satisfied that the Plaintiffs’ Undertaking as to damages is sufficient and appropriate in this case.

Therefore the First Defendants should be restrained in terms sought.

The Second Defendant opposed the application by the Plaintiffs. The affidavit in opposition purported to be in response to the Plaintiffs’ supporting affidavit without expressly stating so. It contains no factual material and should more properly be described as a submission on the law.

In her submissions before me Counsel indicated that the Second Defendant opposed the application on three grounds.

The first ground was that the Act does not expressly prevent or prohibit registration by the Registrar of religious bodies with similar names. Whilst that may be correct, it is not an answer to the Plaintiffs’ application in the event that the Court considers the use of the name by the First Defendants to be misleading and/or a misrepresentation.

Secondly, the Second Defendant submits that not all the Plaintiffs are registered trustees and as a result the proceedings are "invalid". However the reply affidavit sworn by Wame Sausau on 18 November 2009 on behalf of the Plaintiffs annexed a copy of the Memorial of Trustees lodged at the office of the Registrar of Titles on 15 April 2009 confirming that the names of the Trustees for the being are the same as the names of the five Plaintiffs.

Thirdly, the Second Defendant submits that the orders sought are in effect final orders in the sense that they would bring an end to the proceedings and therefore should not be entertained in an application under Order 29 Rule 1. The response to this submission is sufficiently dealt with in the following passage from Halsbury’s Laws of England Fourth Edition Volume 24 paragraph 953:

"The tendency is to avoid trying the same question twice and to grant injunctions only in clear cases. However, where there is no doubt as to the legal rights an interlocutory injunction will be granted, and it is no objection that the relief so granted is substantially the same as the whole relief claimed in the action except that it is only to endure until the hearing of the action".

In support of that proposition, one of the authorities cited is the case of Woodford v. Smith [1970] 1 All ER 1091 reference to which has already been made in this decision.

The only requirement that has been stated in such circumstances is that the Plaintiffs should endorse the writ with a claim for injunctive relief if the obtaining of it is a substantial object of the action.

I am satisfied that the application for interim injunctive relief is properly brought under Order 29 Rule 1 even though the same relief is sought in the action.

I therefore find against the Second Defendant and make interim orders in terms sought.

I therefore order that:

1. Until further order of the Court the First Defendants, their servants and agents or otherwise howsoever be restrained from using the name "Seventh-Day Adventist".
   
2. Until further order of the Court the First Defendants, their servant and agents or otherwise howsoever be restrained from collecting "tithe" and special offerings using envelopes with the "Seventh-Day Adventist Church" markings.
   

3. The Second Defendant remove from the Register the Memorial of the names of trustees for Fiji of the Mahanaim Seventh-Day Adventist Laymen’s Ministry registered on 16 January 2009 and until further order of the Court be restrained from registering trustees in respect of the said Mahanaim Seventh-Day Adventist Laymen’s Ministry.

4. The First Defendants and the Second Defendant are to each pay the Plaintiffs the sum of $300 costs of the application.

W D Calanchini

JUDGE

26 February 2010
At Suva