Buruavatu v Native Land Trust Board [2010] FJHC 329; HBC049.2010 (15 June 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 49 of 2010.

BETWEEN:

1.RATU EMOSI BURUAVATU & OTHERS
of Tokatoka Bitolevu, Mataqali Kawabu, Yavusa Davutukia o Votua village,
Korolevu-i-wai, Nadroga Navosa, Landowner.
PLAINTIFFS.

AND:

1.NATIVE LAND TRUST BOARD
a body Corporate duly constituted under the
Native Land Trust Act Cap 134.
FIRST DEFENDANT.

2. MICHAEL TAYLOR and RUTH TAYLOR
both of Kadrakulu,Nadroga
Businessman and Businesswoman Respectively.
SECOND DEFENDANTS.

Counsel appearing:
For the Plaintiffs: 1.: Ms. Peniana Satele
Q.B. Bale & Associates

For the 2ndDefendants: Mr. R. Singh
Patel & Sharma

Date of Hearing: 24th May 2010.
Date of Order: 15th June 2010.

INTERLOCUTORY ORDER

1).The Plaintiffs by Ex-parte motion dated 8th March 2010 supported on 11th March 2010 obtained an interim injunction for a period of 14 days from this court, as per item 1 of the said motion, to wit;

"That the second defendant by themselves by their servants or by their agents are to be restrained until further order of this court from carrying out works on Namahara, Nakauvadra and Nawauroro by clearing of vegetation, excavation and construction works on traditional sacred grounds; an area of about 3 acres of old burial sites and the old village site belonging to the Plaintiffs".

2).The said interim injunction was issued for a limited period of 14 days subject to the undertaking to damages by the plaintiff, and returnable on the 24th March 2010.

3).The 2nd defendant filed a Notice of Motion dated 22nd March 2010 issued on the 23rd March 2010 and moved to support same on the 24th March 2010, the day the said interim injunction was returnable. The said Motion relied on the affidavit of Michael Taylor and sought;

1. An order that the injunction granted on the day of 11th day of March, 2010 not be extended.
   
2. An order that the action herein against the 2nd named defendants be struck out as it discloses no reasonable cause of action, is scandalous and vexatious and is otherwise an abuse of the process of Court.
   

4).When the interim injunction and the aforesaid Motion came up for consideration on the 24th March 2010, parties agreed to vary the interim injunction and re-issue a varied interim injunction as follows;

1. The 2nd defendant is restrained as per the injunction issued on the 11th March 2010 subject to the variation that the 2nd Defendant is permitted to do construction work above ground level, on the partly constructed structure of the present buildings only and for the purpose of such construction is permitted to dig the earth no more than 1 feet in depth and limited to ½ a square foot in surface area.
   
2. The said varied interim injunction is issued for an initial period of 2 months.
   

100. The plaintiff to identify the area by a survey, that is of concern to them and, file a survey report superimposing on Exhibit 3 of the 2nd defendant within 2 weeks.
     

4. Mention on 8th April 2010, 10 am.
   
5. Mr. Singh takes notice of the varied interim injunction for the 2nd defendant.
   
6. Parties to consider whether to file affidavit in reply and move on the 8th April 2010.
   

5).The factors that led to the said agreement under the auspices of this court were;

1. the 2nd defendant needed to commence its construction work at least above ground level, so as to avoid a damages claim from their contractor for idling,
   
2. the plaintiff needed to conserve its burial sites which are mainly below ground level,
   
3. the plaintiff needed to identify and set out the encroachment if any by the 2nd defendant and verify whether the 1st defendant had in fact given on lease to the 2nd defendant the burial grounds and other sites of historical and archeological importance, and if so the extent and the location so that either a new lease avoiding such burial grounds can be negotiated to the 2nd defendant ("to have the area revised" )or at least a buffer zone can be established as indicated by the report of the archeological department(Fiji Museum ).
   
4. the plaintiff needed to meet the 2nd item of the 2nd defendants Motion, that is to strike out the action against the 2nd defendant on the ground that it does not disclose a reasonable cause of action against them by a survey report that would entitle the plaintiff to set out the encroachment if any and move for amendment to specify a cause of action against the 2nd defendants.
   

6).The plaintiff was given time to submit a survey report as above within 2 weeks, that is by the 8th April 2010, and based on that report the opportunity to amend pleadings to clarify the cause of action against the 2nd defendants, or parties to further reply based on the outcome of the survey report, by affidavit if need be. The interim injunction in the meantime was to continue as varied for a period of two months, and as such would expire if not extended by 24th of May 2010.

7).On the 8th April 2010 the Plaintiff moved for further 2 weeks to file survey report, and court granted time and directed plaintiff to file the survey report as ordered on 24th March 2010, and the matter was set to be mentioned on 20th May 2010, four days prior to the expiry of the interim injunction.

8).On the 20th May 2010 the plaintiff informed court that they have filed the survey report on 29th April 2010 and it was remaining for the plaintiff to amend their Writ and statement of claim and for a request by the 2nd defendant to construct a drive way which would entail excavation. As such court gave time till 24th May 2010 for the plaintiff to inform court whether they object to the drive way set out in Exhibit 3 of the 2nd defendant's affidavit of 19th March 2010, and for the 2nd defendant to consider consenting to the application to amend by the plaintiff.

9).On the 24th May 2010, the day that the interim injunction was due to lapse, parties moved to hear the 2nd defendants Motion of 23rd March 2010, suggesting that the plaintiff is not consenting to the construction of the drive way by the 2nd defendant and the 2nd defendant is not consenting to the amendment by the plaintiff. The motion of the 23rd of March 2010 was already dealt with by court on the 24th March 2010 in varying the interim injunction and issuing it for two months and directing the plaintiff to obtain a survey report superimposing on Exhibit 3 of the 2nd defendants affidavit thereby bringing clarity to the dispute and facilitating a proper amendment.

10).The plaintiff in any event can proceed under order 20 Rule 3 without leave of the court as they are amending for the first time. It must not be overlooked that the plaintiffs came to court seeking urgent injunctive relief and under such circumstances perfect pleadings are not obtainable, and amendments more often than not follow.

11).As for the 2nd defendant's application to strike out, it is now extinguished by the orders (of consent) of the 24th May 2010. However in any event it is common ground that the 2nd defendant was doing construction work including excavation work, and the Fiji Museum too has confirmed the existence of sites of archeological importance in the vicinity. It is in the interest of the 2nd defendant to be a party to this action, as the plaintiffs seek to deal with the 2nd defendant's particular lease with the 1st defendant.

12).There is a grievance between the plaintiffs and the 2nd defendants however much the 2nd defendants might seek to wish it away or ignore it. Striking out the plaintiff's action against the 2nd defendants will not make the grievance disappear, it could continue in this action with or without them. The party that is carrying out the construction and excavation is the 2nd defendant, and as such a necessary party to the plaintiffs grievance.

13).When there is a remedy to a grievance before the law, it becomes a cause of action. There are many grievances to which the law appears to provide no remedy. That is the failing of the law and its practitioner, not the grievance. When a reasonable grievance seeks a remedy before the law it poses a reasonable cause of action. The plaintiffs appear to have a reasonable grievance against the 2nd defendant.

14).This court is mindful of the tenet encapsulated in High Court Rules (1988) Order 2 Rule1, however the 2nd defendant too should be presented with clear pleadings to meet. A defendant too has a right to know what remedy is sought against it.

15).It is for the plaintiffs to amend the pleadings to fortify their representative capacity being mindful of High Court Rules (1988) Order 15 Rule 14 and also set out their particular cause or causes of action against the 2nd defendants as clearly as possible.

16).The interim injunction has lapsed. The plaintiffs must pursue their action with due diligence. The plaintiffs do not urge the issuance of an injunction in their belated written submissions of 4th June 2010 either.

ORDERS:

1. The interim injunction issued on the 11th March 2010 and the varied interim injunction issued on the 24th March 2010 in this action has lapsed.
   
2. The plaintiffs to amend their Writ and statement of claim against the 2nd defendant within 2 months.
   
3. The Motion of the 2nd defendant dated 23rd March 2010 is dealt with by the consent order of 24th March 2010,and the application to strike out the plaintiffs action against the 2nd defendant is extinguished thereby.
   
4. Parties to bear their costs.
   
5. Mention after 2 months.
   

Y I FERNANDO
JUDGE

At Lautoka
15th June 2010.