Digicel (Fiji) Ltd v South Seas Club [2010] FJHC 622; HBC238.2010L (31 December 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 238 of 2010L

BETWEEN:

DIGICEL (FIJI) LIMITED
Plaintiff

AND:

SOUTH SEAS CLUB
Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Ms A Swamy for the Plaintiff.

Solicitors: Diven Prasad Lawyers for the Plaintiff.

Date of Hearing: 16 December 2010
Date of Judgment: 31 December 2010

INTRODUCTION

[1] This was an ex-parte application by the Plaintiff, Digicel, to restrain the Defendant, the Club, from interfering with its transmission tower and other communication equipment.

[2] The Ex-parte Motion was filed on 16 December 2010 together with a supporting affidavit and Writ of Summons.

[3] I heard the application on the same day because I considered there was a likelihood of serious mischief being done by the Club locking out and preventing Digicel from having access to and servicing its communication equipment.

THE BACKGROUND

[4] Digicel is one of two mobile phone service providers in Fiji. The Club owned and occupied a Crown Lease No 11965 on the foreshore in Lautoka as its premises. On 1 October 2007, Digicel and the Club entered into a Sub-lease Agreement in which the Club sublet 80 square metres of its land (the communication site) for the purpose of Digicel building on it and operating communications facilities required for its network services in the West of Vitilevu. The Agreement was registered with the Registrar of Deeds on 30 October 2007 with the Director of Lands consent for a sub-lease of 5 years from 16 May 2007. The sub-lease is therefore still current.

[5] On 20 November 2007, Digicel erected its communication tower and began network operations and provided good coverage for the people of Lautoka. Everything went well until some 10 months later in 2008 when there was a change of Presidency in the Club. That appears to be the catalyst for a series of disputes which seems to me to be based on the new management being not satisfied with the income agreed to by the previous management. The Club now wanted a goodwill payment of $30,000 and an increased rental. Attempts to settle the disputes failed and Digicel took out Court proceedings in Civil Action HBC 31 of 2010.

[6] On 22 February 2010, Mr Justice Yohan Fernando issued a restraining order against the Club for 28 days and ordered the Club give access to Digicel for the use of the communication site. The matter was then adjourned to 9 March 2010. Those orders were further extended on 7 April 2010 for 3 months to 8 July 2010. However, paragraph 2 of the orders of 7 April 2010 stated that the Club was "restrained from interfering with the peaceful occupation of the communication site or in any manner whatsoever until further Order of this Court". The matter was then adjourned to 6 July 2010. Action HBC 31 of 2010 was then to take its normal course.

[7] However, on 14 December 2010, certain persons from the Club went into the communication site, changed the locks of the communication room and disconnected the power supply causing a total shut down of the Digicel network service in Lautoka and the Western Division.

[8] That led to Digicel's solicitors filing another Writ of Summons with an indorsed claim on the same day as the Ex-parte Motion seeking an injunction and damages.

[9] Obviously, both actions need to be consolidated and I therefore direct that this action and HBC 31 of 2010 be called together either before me or Mr Justice Fernando for the necessary orders to be made.

THE EX-PARTE APPLICATION

[10] The Ex-parte Motion was issued pursuant to Order 29 Rules 1 and 2 of the High Court Rules 1988. It seeks the following orders:

1. An Order restraining the Defendants whether by themselves and/or through their servants or otherwise whosoever from interfering with the peaceful occupation of the communication site, not to damage the equipment at is base station situated at Crown Lease No 11965 in any manner whatsoever until further Order of this Court.
   
2. An Order that the Plaintiff, its servant or agent be given excess (sic) to the communication site on the said Crown Lease No 11965 without nay interference from the Defendant, its servants or agents.
   
3. An Order that the Lautoka Police Officers to accompany the Plaintiff, its servant or agent to the said site and see that the property is not damaged, there is no interruption by the Defendant's servant or agents whatsoever until further order of this Court.
   
4. The costs of this application be costs in the cause.
   

[11] The application was put before me because Mr Justice Fernando was on leave and because of the urgency of the matter I decided to hear it.

[12] The affidavit in support was sworn by the Chief Technical Officer of Digicel which I have summarised above as the background facts.

[13] I am satisfied that Digicel has shown that its application is one of urgency and the delay that would result from the matter proceeding in the usual way would entail irreparable or serious mischief as required by Order 29 Rule 1(2).

[14] I therefore granted orders in terms of paragraphs 1 and 2 only.

[15] Ms Swamy asked for an order in terms of paragraph 3 but I did not think it was necessary because I would have thought that it was a matter which the Police would normally do without question. That proved to be presumptuous on my part because that led to a second application by Digicel, which is the subject of another judgment.

ORDERS

[16] The Orders that I made were therefore as follows:

1. Order as per paragraphs 1 and 2 of the Ex-parte Motion filed on 16 December 2010 (with the word "excess" amended to "access").
   
2. The Plaintiff to file and serve the Court documents within 3 days.
   
3. Mention on 31 January 2011 at 9.30 am.
   

Sosefo Inoke
Judge