Foods Pacific Ltd v Lami Town Council [2011] FJHC 16; HBC299.2009 (25 January 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 299 0F 2009

BETWEEN:

FOODS PACIFIC LIMITED
PLAINTIFF

AND:

LAMI TOWN COUNCIL
DEFENDANT

Appearances: Mr. V. Maharaj, Mr. S. Chandra and Ms. A. Maharaj for the Plaintiff.
Mr. T. Fa and Ms. B. MaliMali for the Defendant.

Date/Place of Oral Judgment: Thursday, 16th September, 2010 at Suva.
Date/Place of Written Judgment: Tuesday 25th January, 2011 at Suva.

Judgment of: The Hon. Justice A. Wati.

JUDGMENT

PRACTICE AND PROCEDURE – initiating process to establish liability and damages. Improper for originating summons to be filed where there are issues of controversy.

STAY OF CRIMINAL PROCEEDINGS – civil court lacks jurisdiction to stay a criminal charge pending in criminal court- application must be made at the appropriate forum.

INJUNCTION – NEGATIVE INJUNCTION – cannot be granted if there is no available subject issue to restrain one party.

POSITIVE INJUNCTION – Declined in the circumstances as the grant of injunction is the very issue of liability.
___________________

Legislation

High Court Rules 1988

The Case Background

1. On the 14th day of September, 2009, the plaintiff filed an originating summons and sought the following reliefs:-
   
   • Judgment in the sum of $81,950.00 being damages suffered by the plaintiff as a result of the ex-parte injunction obtained by the defendant in Magistrates' Court, Criminal Division;
   • Alternatively an inquiry be made as to the damages sustained by the plaintiff;
   • That the plaintiff be at liberty to enter judgment against the defendant for the amount of such damages;
   • An order that Criminal Action Number. 356 of 2009 be permanently stayed; and
   • Costs of this action on indemnity basis.
     
2. The Originating Summons was heard on Monday, the 3rd day of May, 2010. The matter was adjourned for judgment on notice.
   
3. Before the judgment was delivered the plaintiff filed on the 04th day of August, 2010 an ex-parte application seeking the following reliefs:-
   
   • The defendant by itself, its servant, agents or otherwise and howsoever be restrained from interfering with the plaintiff's containers stored at the Nakarawa Park at Toti Street, Wailada, Lami until further order of the Court;
   • The defendant be ordered to forthwith return the containers already removed from the Nakarawa Park at Toti Street to the plaintiff;
   • Damages; and
   • Costs of the action.
     
4. The ex-parte application was admitted as inter-partes by the court.
   

Plaintiffs Grounds In Support and Submissions

5. In Support of the originating summons, the plaintiffs grounds and submissions are as follows:-
   
   • On the 18th day of March 2009, the defendant filed a complaint in the Magistrates' Court, Suva, in Criminal Case No. 356 of 2009 against the plaintiff (accused) pursuant to s. 78 of the Criminal Procedure Code alleging breach of various sections of Town Planning Lami Order and certain sections of Local Government Act. Cap. 125.
     
   • On 8th May, 2009, the plaintiff appeared by his counsel in the Magistrates' Court and pleaded not guilty to the charges.
     
   • The criminal matter was then adjourned to the 16th day of July, 2009. An order was also made for the defendant to serve disclosures on the plaintiffs' counsel.
     
   • In the interim, the defendant by his solicitors on the 16th day of June, 2009 obtained an ex-parte injunction in the criminal charge restraining the plaintiff from carrying out all activities from Toti Park. This park was subject to pending criminal proceedings.
     
   • When the sealed order was served on the plaintiff, its solicitors immediately filed in the criminal proceedings an application for discharge of the orders. The court failed to treat the plaintiff's application with the same degree of urgency as it treated the defendant's application. The court failed to hear the application on at least two occasions when the motion for discharge was fixed for hearing.
     
   • The plaintiff's solicitors then wrote to the Honourable Chief Justice for intervention by way of supervisory jurisdiction that Criminal High Court has. A request was made for revision of the orders.
     
   • On the 17th day of July, 2009 Goundar, D. J. discharged the injunctive orders of the Magistrates' Court under his revisionary jurisdiction. His Lordship, amongst other orders, found that an application for injunction in the pending criminal proceedings was mischievous. His Lordship has ruled that the Magistrates' Court, Criminal Division did not have powers to grant the said injunction.
     
   • Between the time period from obtaining the injunction and until the same was discharged, the defendant refused to allow the plaintiff to remove its containers from Toti Park. The containers had substantial quantities of frozen meat products and required constant supervision and supply of appropriate level of electricity to keep the refrigerators at certain temperatures to avoid food contamination.
     
   • The defendant prevented the plaintiffs from complying with the injunctive orders and from minimizing its losses.
     
   • The actions of the defendant has caused the plaintiff irreparable harm in that the meat products in the container got contaminated by the time the injunctive orders were discharged by his Lordship Justice Goundar.
     
   • The particulars of loss are:-
     

- Damage to frozen fish	FJD 22,000.00
- Loss/Damage to chicken breast 468 cartons x 7020kg per chicken	FJD 59,950.08

• Whether or not the defendant gave an undertaking as to the damages when it obtained the injunction, it is liable to pay the damages as the plaintiff has suffered loss as a result of the mischievous and unlawful act of the defendant in obtaining the injunction. The Magistrate issuing the injunction has judicial immunity and so the proper cause of action is against the defendant.
  
• The defendant had violated the plaintiffs constitutional and common law right of being presumed innocent until proven guilty. The grant of the injunction tantamounts to punishing the accused.
  
• The plaintiff is entitled to damages.
  
• It is also entitled to stay of criminal proceedings because there is misconduct on the part of the prosecution, which has led to denial of natural justice and due process that the plaintiff as an accused was entitled to. It was submitted that Justice Goundar, J. had made findings that the accused was denied natural justice. This is enough for the court to intervene and grant permanent stay. The prosecution have undermined the credibility of the judicial system.
  

6. In support of the injunctive reliefs, the plaintiffs grounds and submissions are as follows:-
   
   • On the 30th day of July, 2010, the defendant served on the plaintiff a notice to remove all the containers stored at Toti Park. The plaintiff's solicitors responded to the notice on the same day and stated that the defendant cannot remove the containers from Toti Park as the issue was sub judice and any attempts to remove the container would amount to contempt of court. The defendant with the assistance of its solicitor Mr. Tevita Fa and some police officers, removed two containers belonging to the plaintiff from Toti Street on trucks owned by MY Transport. From the two containers removed, one container contained sardines imported from United States of America with an approximate value of $US 60,000.
     
   • There were about 12 containers stored at Toti Park and most of the containers contained frozen items such as chicken and other perishable items which would be contaminated if the containers were removed.
     
   • Despite numerous requests made by the plaintiff to the defendant to disclose where the containers were being taken, the defendant and its servants and agents refused to disclose the information to the plaintiff.
     
   • On 2nd August, the defendant removed all the plaintiffs' containers from Toti Park.
     
   • Before the injunctive application was issued from the registry, the defendant removed all the containers and wrote a letter on the 5th day of August, 2009 and faxed the same to the plaintiff's solicitors on the 06th day of August, 2009. In that letter the defendant advised the plaintiff to remove its containers stored at MY Container City at Reservoir Road, subject to the payment of $11, 986.25 and further costs of $15,000 per day for costs of storage of the container.
     
   • The onus was on the defendant to await the ruling of the court. The status quo should have been maintained to avoid any prejudice to anyone. The plaintiff is being prejudiced because its containers were removed and it is asked to pay costs without any invoice on costs.
     
   • The Toti Park has been used by the plaintiff for so many years. Its ownership is disputed. There was no emergency situation to remove the containers out of Toti Park.
     
   • The defendant must be ordered to return all the containers at Toti Park at its own costs pending the outcome of the judgment on the originating summons.
     
   • The plaintiff is a reputable business with assets worth more than $15 million. The plaintiff enclosed its financial report of year 2009 and gave undertaking as to damages.
     
   • There were no orders stopping the plaintiff from using the said park.
     
   • The laying of the charges and the confiscation of containers amounts to double jeopardy.
     
   • The lease of the property is in question and is a subject matter before the Magistrates' court.
     
   • The onus was on the defendant to maintain the status quo and not to remove the containers without a court order. Now the requirement to pay the costs will further prejudice the plaintiff as it will be punished without establishing its defence.
     

Defendants Grounds in Opposition and Submissions

7. In opposing the originating summons matter, the defendants counsel Ms. Malimali submitted as follows:-
   
   • The plaintiff has no cause of action against the defendant.
   • The damages suffered by the plaintiff cannot be claimed against the defendant as the injunction was illegally issued by the court. The Magistrate granting the injunction is at fault and thus the defendant cannot be held liable in law.
   • The defendant had not given an undertaking as to damages when it sought the injunction so it cannot be made liable.
   • The inquiry into damages is contrary to the adversarial system of justice of Fiji.
     
8. In opposing the application for the injunctive orders the defendant submitted as follows:-
   
   • The letter by plaintiff's solicitor came to the attention of the defendants on the 2nd day of August, 2010. The letter was faxed to the defendant at 4.35pm and by that time the office had closed. It opened on Monday the 2nd day of August, 2010 at 8am.
     
   • 15 containers were removed to MY Container City Yard at Reservoir Road, Suva. When the operation started in the morning of 2nd August, 2010, there were 19 containers. The Assistant Productions Manager of Foods (Pacific) Limited, namely, one Mr. Anwar Hussein requested if he could take some containers away at their yard. Four containers were released to him leaving 15 behind. The request of Mr. Hussein came at about 5pm of 2nd August, 2010. The operation had started at 10.45am. At 11.30am the security of the plaintiff company was informed where the containers were taken to. At 5.00pm Mr. Hussein was also told where the containers were being taken to. Finally the defendant informed the plaintiff about the whereabouts of the containers and the costs of operation via its letter dated 5th August, 2010.
     
   • The plaintiff is also guilty of abuse of court process. Ever since it made an application for damages and stay of criminal proceedings, it has not stopped using the Toti Park to store its containers and to make money from other operators by storing their containers at certain costs at Toti Park. Such action has been in breach of section 115 of the Local Government Act Cap. 125 and section 7 of the Town Planning Act Cap 139.
     
   • In the month of June 2010, the Fiji Government gave the Lami Town Council $1.5 million to upgrade all roads at Wailada Industrial Subdivision. Works have been carried out on Toti Street in Wailada. The regular use of container trucks and trailers were causing damage to the newly repaired road. This is a matter of great concern to the defendant and for this reason and also because that the defendant received complaints from other business houses in the vicinity, the defendant issued a 48 hour notice to the plaintiff to stop its operation and take it elsewhere.
     
   • The plaintiffs continued use of Toti Park shows that it has no respect for court and the laws of the nation. Section 115 of the Local Government Act Cap. 125 and Section 7 of the Town Planning Act Cap. 139 prohibits the use of Toti Park in the way the plaintiff is using it.
     
   • The park is used for recreational purposes and it is time that the plaintiff be made to stop its nonconforming and illegal use of Toti Park.
     
   • Since July 2009, the plaintiff was off-loading about 25 containers per month at the park. The plaintiff's losses are its own making when it did not comply with the notice issued by the defendant. The plaintiff's food must not be contaminated because a security person monitors the container every hour. The correct temperature is being maintained in the containers.
     
   • The plaintiff should also have waited for the ruling of the court and not continued to use the park.
     
   • The containers must not be returned to the Park.
     

The Law and the Determination

9. I will first deal with the first prayer in the originating summons which is for judgment in the sum of 81,950.00 being damages suffered by the plaintiff as a result of the ex-parte injunction obtained by the defendant in the Magistrates' Court, Criminal Division.
   
10. Under his revisionary jurisdiction, his Lordship Justice Goundar had found that it was improper and without jurisdiction when the injunction in the pending criminal proceedings was issued. His Lordship had stated that the accused was denied the due process of natural justice and disadvantaged of the presumption of innocence when the said injunction was issued.
    
11. Justice Goundar's comments were made in the criminal proceedings. His observations and findings are not and cannot be conclusive of the issue of liability of the defendant in a civil matter.
    
12. The plaintiff has to prove to the court that it was legally using the said park or using the same by virtue of some agreement thereby making it legal. It also has to prove that it has suffered damages as a result of the injunction since it was legally entitled to use the Park. These are all matters for trial and cannot be resolved by affidavits.
    
13. The plaintiff also says that the title to the lease is questionable. This cannot be resolved by an affidavit. It should be a matter for the trial judge to make a finding on this aspect. Moreover, the defendant denies that the plaintiffs' use of the park was legal and states that the damages suffered by it, is its own making.
    
14. All these contested matters are to be established on the issue of liability.
    
15. This action should have been properly brought by a writ of summons and not originating summons.
    
16. Damages cannot be established on affidavits as well. The aspect of damages needs to be tested and established and once again the proper procedure is to have a trial on the aspect.
    
17. The second remaining request if for stay of criminal proceedings. The civil court has no powers to stay criminal proceedings. I have not been shown any authority by virtue of which I can exercise the powers to stay proceedings which is not the subject matter before the court. It is ironical as to how the plaintiff is critical of the defendant in obtaining an injunction in criminal court when the Magistrates' Court did not have powers to issue any injunctive orders.
    
18. The plaintiff's counsel is committing the same deadly mistake by asking the court to grant it an order which it is not properly entitled to.
    
19. If any application for stay has to be made, it must be made in the Criminal Case and not this court. I also make another interesting observation that Justice Goundar's ruling, having made the observation it did, ordered the trial to proceed. The judgment thus reflects that the trial could proceed, with no prejudice caused to the accused in his defence, if the injunction was uplifted.
    
20. The third order that I need to deal with is the negative injunction that is sought to prevent the defendant from removing all the containers from Toti Park. There are no more containers left at the Park so this is not an order that the plaintiff can pursue. The plaintiff acknowledged this aspect in court at the hearing.
    
21. The plaintiff is also asking for a positive injunction to order return of all containers at Toti Park without any costs to the plaintiff.
    
22. The legality of the use of the Toti Park is an issue that will determine whether the plaintiff is liable to use Toti Park or not. If it is legally entitled to use the park and has been illegally or improperly deprived of the use, then the plaintiff can ask for damages for loss of use of park, damages for extra costs incurred in maintaining the containers at an alternative park, the damages it sustained due to the injunction that was granted and the damages for the shifting of the containers. The defendant has to prove the illegal use of the park and that would all be a matter for the trial.
    
23. Ordering return of the containers to Toti Park would tantamount to determining the validity of use of the Park. I am not prepared to do this exercise on affidavits. I decline to do so. It is improper for the containers to be returned to Toti Park. The defendant has brought charges in respect of the use of this Park and claims that the plaintiff's use of the Park is illegal. The issue is indeed before the court for determination. Any orders returning the items to the Toti Park would be improper.
    
24. The allegation is that after the charges were laid and the originating summons filed, the plaintiff continued to store containers at the rate of 25 containers per month. It is also alleged that it allowed other businesses to use the park and collected money from the illegal permission it gave to others to use the park. If this position of the defendant is correct, then again it is ironical for the plaintiff to overemphasise the need to maintain the status quo pending the determination of the criminal charges and the civil matter. I leave the issue for the trial judge.
    
25. The plaintiff needs to continue with its business. It needs its containers and the contents of the same to trade and minimize its losses. The defendant must release the containers. On the issue of payment of costs, the defendant has to wait for the trial to conclusively establish that it rightfully incurred the costs in removing the plaintiff's containers.
    
26. If it can be established at the trial that the use of the park was illegal and the plaintiff failed to take heed of the notice by the defendant to stop its operation and remove the containers, then at the trial it can ask for costs and disbursements together with any other remedy it wishes to seek against the plaintiff.
    
27. An order for costs to be paid by the plaintiff now would prejudice it, because it is not yet established that its actions were unlawful.
    
28. The defendant must release all the containers at its costs and make the necessary claim at the trial.
    
29. On the aspect of costs of this application, the costs shall be in cause.
    

Final Orders

30. With the above observations, I make the following interim orders:-
    
    1. The orders sought in the originating summons are declined.
       
    2. There must be oral evidence in respect of both the issues of liability and quantum. The trial judge can either convert the originating summons to a writ action or order a separate writ to be filed. Parties to address the court on this aspect.
       
    100. The application for permanent stay of criminal proceedings is dismissed.
         
    4. The application to restrain the defendant from removing the plaintiff's containers from the Toti Park is dismissed.
       
    5. Lami Town Council is ordered to return or release all the containers of the plaintiff at a place to be nominated by the plaintiff. No costs shall be yet charged to the plaintiff for return or release of the containers.
       
    6. Upon release of the containers, the defendant must not interfere with the plaintiffs containers.
       
    7. All the issue of costs and damages for and against the parties must be tried at the trial.
       
    8. Costs of this action shall be costs in the cause.
       
    9. The matter to be listed before another civil judge for determination.
       
31. Orders Accordingly.
    

ANJALA WATI
JUDGE
25.01.2011