Reddy Group Ltd v Director of Town and Country Planning [2015] FJHC 631; HBM16.2015 (28 August 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL ACTION NO. HBM 16 OF 2015

BETWEEN:

REDDY GROUP LIMITED a limited liability company having its registered office at 35 Ravouvou Street, Lautoka City
1st Plaintiff

ORANGE COAST INVESTMENT LIMITED a limited liability company having its registered office at 2 Jaduram Street, Labasa
2nd Plaintiff

MAUDE ELBOURNE of Lautoka City
3rd Plaintiff

PATRICIA FRASER of Lautoka City
4th Plaintiff

CHANDAR LOK of Lautoka City
5th Plaintiff

DENISE GIBSON of Lautoka City
6th Plaintiff

MARK RICHMOND of Lautoka City
7th Plaintiff

AND:

THE DIRECTOR OF TOWN AND COUNTRY PLANNING
1st Defendant

LAUTOKA CITY COUNCIL
2nd Defendant

MINISTER OF LOCAL GOVERNMENT
3rd Defendant

Counsel : Mr. A. R. Singh for the Plaintiffs
Mr. Green with Mr. J. Pickering for the Defendants

Date/Place of Hearing : Tuesday 21 July 2015 at Lautoka
Date of Ruling : Friday 28 August 2015 at Lautoka
Before :The Hon. Mr. Justice R.S.S. Sapuvida

RULING

Catchwords:
INTERIM/FINAL INJUNCTION AGAINST STATE IN CIVIL CASES – ALTERNATIVE REMEDIES - DECLARATORY ORDERS AGAINST STATE – CONSTITUTIONAL REDRESS-

Legislation:
THE CONSTITUTION OF THE REPUBLIC OF FIJI 2013.S 25., S 44.
THE CROWN PROCEEDINGS ACT CAP. 24 ("CPA"): S 15.
TOWN PLANNING ACT CAP. 139 ("TPA"): S 5., S 23.
HIGH COURT RULES 1988. ("HCR") O,5 r,1& 3 .O,29 r,1 &2
HIGH COURT (CONSTITUTIONAL REDRESS) RULES 2015. (HCCRR 2015)

Cases referred to:
ATTORNEY GENERAL OF FIJI v SILATOLU [2003] FJCA 12; Misc. NO 1 2002S (6 March 2003)
M v HOME OFFICE AND ANOTHER [1993] UKHL 5
FIJI TELEVISION LIMITED v MINISTER OF INFORMATION, BROADCASTING, TELEVISION & TELECOMUNICATION HBJ0012D 1997S (30 JULY 1997)
BAINIMARAMA v HEFFERNAN [2008] FJCA 78; ABU0034.2007S (7 November 2008)
PADARATH v PRESIDENT OF FIJI HBC33.2013
RAKULA v ATTORNEY GENERAL OF FIJI [2005] FJHC 423; HBM0063D.2004S
AIYAZ ALI v THE STATE HBM0079.2004
SINNOT v MINISTER OF EDUCATION [2001] 2 I.R. 545

[1] The plaintiffs are aggrieved by the decision of the Director of Town and Country Planning to re-zoning Shirley Park, Lautoka, and alleged, that the Director of Town and Country Planning failed to response to their request for information and therefore it is in breach of Section 25[1] [a] of the Constitution of the Republic of Fiji. The plaintiffs by an Ex-Parte Notice of Motion dated and filed on 25 June 2015, sought for an Injunction against the defendants.

[2] On facts stated by the plaintiffs' Counsel at the hearing in Court, it was revealed that the cause of action arose on 12 February 2015, and that this application is made pursuant to the breach of Section 25[1] [a] of the Constitution.

[3] Having observed the fact that, reliefs sought by the plaintiffs are injunctive in nature and it is against the State, I converted the ex-parte Notice of Motion into an inter-partes Notice of Motion as for one, that there is no substantive relief sought against the defendants by way of originating process, and for the other reason is to hear both parties at once, allowing them to advance their respective argument in order to dispense the matter without delay.

[4] The ex-parte Notice of Motion of the plaintiffs was intensely opposed by the defendants after having been served it on them dated30 June 2015 by the Court and at its first call inter-partes on 2 July and on 21 July 2015 at the hearing.

[5] The 1st & 3rd defendants filed Summons dated 1 July 2015 to strike out the plaintiffs' application which was later withdrawn by the Counsel for defendants since both parties agreed upon to anticipate a ruling from Court on the issue as to whether or not the Court can grant injunctions against the State in the instant case, which is being the main argument advanced by the defendants.

[6] Then the matter was adjourned for hearing on 21 July 2015. The hearing was concluded and then parties opted to file their written submissions later as the Court fixed the matter for Ruling on 7 August 2015.

[7] Defendants caused to file their written submissions on 30 July 2015, and yet the plaintiffs had not filed theirs' till the dawn of the day on which the ruling was due to be pronounced.
[8] For that reason Court adjourned the ruling for another date in order to avoid a glimpse of preconception whatsoever to any party to the action.

[9] I prefer to reproduce below the orders sought by the plaintiffs' in the said Notice of Motion in its own form in order to give the mirror image of its substance before scrutinizing the length and breadth of the submissions put forward by both Counsel pertaining to the real issue in this matter;

" 1. That the approval granted by 1st Defendant by notice dated 06 May 2015 for re-zoning on Shirley Par of Lot 1, ND5149 [part of] from Civic [Civic Centre] special Use Tourism [Hotel – Type 'C'] be stayed forthwith until further order of the Court;

2. That the approval granted by the 1st defendant by notice dated 06 May 2015 allowing for the re-zoning on Shirley Part of Lot 1, ND5149 [part of] from Civil Centre] to Special Use Tourism [Hotel – Type 'C'] be restrained forthwith from performing or carrying out any form of construction including digging or erecting any building or any form of structure or an development until further order of the Court;

3. That the 1st, 2nd and 3rd defendant's and or through their servants or agents be retrained forthwith from any action that would further the approval granted by notice dated 06 May 2015 in any manner whatsoever for the re-zoning of Lot 1, ND5149 [part of] from Civic [Civic Centre to Special Use Tourism [Hotel – Type 'c'];

4. That the 1st, 2nd and 3rd defendant's and or through their servants or agents immediately cease forthwith to issue any further approvals and documentation with regards to the construction of any building or any development on Lt 1, ND5149 situated on Shirley Park in Lautoka City;

5. Any other orders that this Honourable Court deems necessary; and

6. Costs. "

[10] At the hearing of inter-partes notice of motion, Mr. Singh argued on behalf of the plaintiffs, that the defendants have breached the section 25(1) (a) of the 2013 Constitution of the Republic of Fiji and that, the instant application is brought pursuant to Order 29 Rule 1 & 2 of the HCR 1988 and the inherent jurisdiction of the High Court.

[11] Mr. Singh also emphasized that their application is for redress under section 44(1) of the Constitution and furthermore, he has stressed in his written submissions dated 5 August 2015 and filed 6 August 2015, that an application to the High Court for redress under section 3(1) of the HCCRR 2015, may be made by a motion supported by affidavit;

(a) Claiming a declaration;

(b) Praying for an injunction;

(c) Claiming or praying for such other order as may be appropriate.

[12] Mr. Singh has also stated in his written submissions that the High Court is provided clear direction by the HCCRR 2015 as to how a constitutional redress action can be instituted and also as to the kinds of reliefs that the High Court is able to provide which includes the granting of an injunction.

[13] It was in deed the Counsel for the defendants who furnished to Court at the hearing, a copy of the Gazette Supplement of the Government of Fiji which came into force dated Friday, 13th March 2015 by which, His Lordship Chief Justice A. H. C. T. Gates made new Rules on 5th day of March 2015 pertaining to the Application for Constitutional Redress, revoking The High Court (Constitutional Redress) Rules 1998in exercise of the powers conferred on the Hon. Chief Justice of Fiji by section 44(10) of the Constitution of the Republic of Fiji and section 25 of the High Court Act (Cap.13).

[14] S. 3 of the HCCRR 2015 reads as follows;

3.-(1) An application to the High Court for redress under section 44(1) of the Constitution may be made by a motion supported by affidavit-

(a) Claiming a declaration;

(b) Praying for an injunction;

(c) Claiming or praying for such other order as may be appropriate.

(2) An application under paragraph (1) must not be admitted or entertained after 60 days from the date when the matter at issue first arose unless a Judge finds there are exceptional circumstances and that it is just to hear the application outside of that period. (Emphasis & Italic added)

[15] It is therefore, very clear that the Rule 3(2) specifically states that an application for Constitutional Redress must not be admitted or entertained after 60 days from the date when the matter at issue first arose.

[16] Mr. Singh, the Counsel for plaintiffs' reiterated the fact that the cause of action arose on 12 February 2015. This position is more fully confirmed by the affidavits of four plaintiffs' wherein they say that they are aggrieved by a violation of their constitutional right under section 25[1][a] of the 2013 Constitution of the Republic of Fiji, and that, it was when the 1st defendant failed to response to their letter dated 12 February 2015, requesting information regarding the re-zoning Shirley Park, Lautoka.

[17] The ex-parte notice of motion was filed on 25 June 2015 and that the plaintiffs are evidently out of time by more than 60 days to bring the instant application for redress. For that reason they are excessively delayed exactly by another 85 days after the cessation of 60 days mandatory period speaks in section 3 (2) of the HCCRR 2015, which falls on the 1st of April 2015, from the date of cause of action if so ascended as deposed by the plaintiffs.

[18] Of course there is an "unless provision" in section 3 (2) of the HCCRR 2015 which warrants a Judge to consider whether or not to entertain such an application filed out of time on exceptional circumstances and that it is just to hear the application outside of that period.

[19] In order to find the former, i.e. to exercise the discretion vested with the Court as stated in section 3 (2), the applicants must plead the exceptional circumstances in their application which would then enable the Court to exercise its discretion to enlarge time to hear the same, and yet, the Court by its own motion cannot grant such reliefs to any party.

[20] Having observed the facts deposed in the affidavits filed by four plaintiffs along with their ex-parte notice of motion, I cannot find any such reason explained in the entirety of it, as to why they were unable to file the instant application for redress within the required 60 days.

[21] Of course, one might argue that the HCCRR 2015 came into force exactly a month after the cause of action so arose as claimed by the plaintiffs, and yet, had the plaintiffs brought the instant application even after the Gazette Notification was published on 13 March 2015, they would have still been within the mandatory time frame though the regulations came into force after the alleged date of their cause of action and, thereby to fall in line with the provisions.

[22] Moreover, the plaintiffs also cannot seek the protection of section 8.-(2) of the HCCRR 2015 for the following reason;

"8.-(2). Any application for redress made under the High Court (Constitutional Redress) Rules 1998 continues as if these Rules had not been made."

[23] Therefore, they cannot say that the cause of action arose before the HCCRR 2015 came into force and these provisions do not apply to their issue because; they had not filed the instant application in Court, prior to the enactment of HCCRR 2015.

[24] Accordingly, I find at the very outset that the plaintiffs are patently guilty for the undue delay caused for not bringing their application within the mandatory period of 60 days from the date of the cause of action which cannot be cured later, and inevitably warrants a certain dismissal.

[25] Secondly, apart from the above hindrance, the main argument campaigned between the plaintiffs and the defendants, as to whether or not the Court can grant injunctions against the State in the instant, is also another stumbling block for the plaintiffs' as far as the relevant legislation, the case law authorities, and the case of the plaintiffs are concerned.

[26] Mr. Singh asserted that the position and argument advanced by the defendants that no injunction can be granted against State as per section 15 of the CPA, is incorrect and that, injunctions can be granted against the State.

[27] Mr. Singh relies on the following case law authorities in support of his argument;

- Attorney General of Fiji v Silatolu [2003] FJCA 12; Misc. No. 1 2002S (6 March 2003)

- M v Home Office and Another [1993] UKHL 5

- Fiji Television Limited v Minister of Information, Broadcasting, Television & Telecommunication HBJ0012D 1997S (30 JULY 1997),

whilst, the defendants' Counsel is arguing that the plaintiffs' case should be stuck out on the following;

- No Originating Process in the plaintiffs' application

- No Substantive Matter

- No Injunction Against State

- Alternative Remedy has not been exhausted

- Application is out of time,

[28] The defendants further rely on the following case law authorities in support of their argument;

- Bainimarama v Hefernan[2008] FJCA 78; ABU0034.2007S (7 November 2008)

- Padarath v President of Fiji HBC33.2013

- Rakula v Attorney General of Fiji [2005] FJHC 423; HBM0063D.2004S

- Aiyaz Ali v The State HBM0079.2004

- Sinnot v Minister of Education [2001] 2 IR 545

- M v Home Office and Another [1993] UKHL 5

[29] Mr. Singh submitted that, the Fiji Court of Appeal in the case of ATTORNEY GENERAL OF FIJI v SILATOLU [2003] FJCA 12; Misc. NO 1 2002S (6 March 2003), held that the injunctions can be granted against the State. But I cannot agree with his view though the appeal was dismissed in the Court of Appeal, as it was clearly held in the above case as follows;

"Result

In the result, the judgment of the court below is upheld, saved to the extent that this Court does not consider that mandatory injunctions against the State should have been issued. There should have been declarations. If these declarations have not been complied with, there should have been an Order in the nature of mandamus address to the LAC. The Court's observations on the relevant constitutional issues and appropriate remedies should be noted for future reference. " (emphasis added)

[30] Therefore Mr. Singh's conclusion that it was held in the above case that the injunctions can be granted against the State is incorrect. He further submitted that in the case of M v Home Office [1993] UKHL 5, it was also held that injunctions can be granted against the State, and yet it is indeed very clear position that what was held in the above case is totally a different issue to the present as that was a proceeding against a Minister of the Crown arising from a Judicial Review proceeding. Therefore the Former does not support Mr. Singh's proposition that injunction can be granted against the State in the instant proceeding.

[31] He also relies on the decision of Fiji Television Limited v Minister of Information, Broadcasting, Television & Telecommunication HBJ0012D 1997S (30 July 1997), and submits that the injunctions can be granted against the State. The facts of the above case is of an application for an interim injunction and judicial review arose questions of public and constitutional law concerning whether an interim injunction can be granted against the Minister for Information, Broadcasting, Television and Telecommunications from unilaterally annulling a contract freely entered into with another person on the grounds of public policy and that the contract is in breach of fair trading decree 1992. Nevertheless, the facts and the circumstances of the Fiji Television Limited (supra) are noticeably different from those to the facts of the instant case. Furthermore, the above is a decision of the High Court delivered in the year 1997, whereas the Fiji Court of Appeal in the year 2008 held in Bainimarama v Heffernan [2008] FJCA 78; ABU0034.2007S (7 November 2008), that no injunction orders can be made against the State keeping in line with the provisions of S. 15 of the CPA, and dissolving the injunction granted by the High Court against the State, by which the High Court is now bound to follow.

[32] S. 15 of the CPA [Cap 24] stipulates that;

"15.-(1) In any civil proceedings by or against the State the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:

Provided that –

(a) where in any proceedings against the State any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and

(b) ...

(c) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown.

[33] It was accepted in Bainimarama v Heffernan (supra)that for the word "Crown" the word "State" should be substituted.

[34] In view of the provisions of Section 15 of CPA, it is manifestly clear that the court does not have the power to issue injunction against the State, and of course the Act makes provision for declaratory orders to be made against the State and if such orders are made against the State the State must comply with those orders.

[35] This proposition was considered in the case of Bainimarama v Heffernan (supra)as it was held by the Fiji Court of Appeal wherein an injunction had been granted against the State by High Court without detailed analysis of the law and the facts of the case. The Court held;

"44 – No Court will knowingly make an order beyond its power and any judge would need to be satisfied that he or she had power before making an unusual or novel order."

[36] Accordingly, the Court of Appeal firmly held that Section 15 of the CPA clearly dictates that the court does not have the jurisdiction to grant an injunction against the State, and dismissed the injunction granted by the High Court.

[37] The same proposition was considered in Padarath v President of Fiji, HBC33.2013, when Justice Anjala Wati stated;

"I find the prohibition against granting injunctions against the State so clear and unequivocal that no reasoning is required to make a finding that Mr. Singh's application for injunctive orders against the State must fail."

[38] Therefore, having skimmed through the decisions of Court of Appeal and the High Court on the matter at issue, I need to say that it is an ingrained legal notion that an injunction cannot be granted against the State in view of section 15 of the CPA.

[39] The defendants also object the plaintiff's application on the ground that there is an alternative remedy available to the plaintiffs.

[40] The defendants point out that the plaintiffs have a right to appeal under section 5 of the TCP Act [Cap 139].

[41] S. 5 (1), & (2) (d) of the TCP Act [Cap 139] states;

"5.-(1) There shall be a right of appeal, subject to the provisions of this section, from decisions of the Director to the Minister within twenty eight days of notification of the decision to the appellant, and the decision of the Minister on the matter at issue shall be final:

Provided that the Minister may for good cause extend the said period of twenty-eight days.

(2) The right of appeal shall be exercisable by –

(d) Any objector and any local authority dissatisfied with a decision of the Director under the provisions of section 23".

[42] S. 23 of the Town Planning Act provides provision for the Director of Town and Country Planning to uphold whole or part of the objections or remove and dismiss any objections.

[43] Therefore, it is well affirmed that there was an alternate remedy available to the plaintiffs which they have failed to exhaust. Defendants' Counsel points out that, even though the plaintiffs are out of time, they can still appeal to the Minister for enlargement of time.

[44] The Counsel for defendants submitted that in Rakula v Attorney General of Fiji [2005] FJHC 423; HBM0063D.2004S, it was discussed the issue of alternate remedy as the High Court held as follows:

"The more pertinent issue however is whether the Appellant had exhausted all alternate remedies. In both claims under section 25 (1) and section 27 (1) (d) the Appellant clearly had alternate remedies available to him. He admitted in his bail application before the Court of Appeal, that his complaint on police assault had been referred to the Human Rights Commission. According to Counsel for the Commission, the complaint had in fact been lodged with them by the Appellant in 2003, while his criminal trial was under way. But the Commission, under section 27 of the Act, may not proceed to investigate the complaint if the same matter is being dealt with in another forum. Even so, the Appellant still had the opportunity to pursue alternative remedies by filing complaints in respect of assaults to the Commissioner of Police and/or filing Writ action for damages in Court. As for alleged breaches of his rights under section 27 (1) (d) of the Constitution, the Appellant merely had to alert the Commissioner of Prisons, the Office of the Ombudsman or any of the Visiting Magistrates of any effort to deny his spouse access to him. As Singh J observed in In the Matter of an Application for Constitutional Redress by Aiyaz AliHBM0079.2004, the right granted to a person under section 41 of the Constitution to make an application to the High Court for Constitutional redress for any breach of his rights under Chapter 4 is not absolute. It is not intended that every singular breach of an individual's right guaranteed under the Constitution gives rise to a section 41 proceedings. To allow this to happen would be an abuse of the process as clearly there are existing and adequate alternative remedies that remains available."

[45] On the above basis, the plaintiffs have the opportunity to appeal to the Minister and to take judicially review proceedings against the decision of the Director of Town and Country Planning, which they have in deed not invoked.

[46] The defendants' other contention is that the plaintiffs have not pleaded for a declaration for the alleged breach of their section 25 (a) constitutional right. In support of this, they submitted the decision of the Supreme Court of Ireland in Sinnot v Minister of Education [2001] 2 I.R. 545, wherein it was held that;

"Per Keane C.J. and Hardiman J.: It was normally sufficient to grant declaratory relief in the expectation that the institutions of the State would respond by taking whatever action was appropriate to vindicate the constitutional rights of the successful applicant and the fact that the courts had powers to deal with the extreme circumstances in which a hypothetical government not only ignored a constitutional imperative and defied a court declaration was not a basis for the exercise of such powers in any other circumstances. The purported retention by the High Court of jurisdiction in the case after it had delivered its final judgment was an erroneous exercise of its jurisdiction.

Per Denham J.: While the courts assumed that, where an order was being made against the State, a declaratory order would be sufficient and appropriate, the court might have a jurisdiction and even a duty to make a mandatory order in a rare and exceptional case of protecting constitutional rights."

[47] Therefore, the position is so clear as it was held in the above case that, a declaration is a remedy in a Constitutional rights case, as the Irish Supreme Court further emphasized that whilst there was nothing to preclude directed at the Minister, where the Court has granted a declaration, the Minister would take appropriate steps to comply with the law as laid down by the Court. In the above case the mother of an autistic twenty-three year old boy sued the State for failure to provide her son with free education facilities, contrary to the Irish constitution. Then the Court held that an order of declaratory nature could be the remedy than an injunctive relief.

[48] The defendants have also advanced the argument that the plaintiffs' application is defective in form and substance. The notice of motion filed for the sole purpose of obtaining an injunctive relief violates Order 5 of the HCR 1988. The defendants argue that a notice of motion is only appropriate in applications where there is a pending action afoot. And they also argue that this is a defect that cannot be cured by an order of court. It is fundamental that it goes to the root of the procedure required for an originating process of this kind is to be made and to which Order 5 mandates.

[49] In Prasad v NBF Asset Management Bank [2013] FJHC 67, Miscellaneous Action 01.2012 (22 February 2013), the Court struck out the applicant's Notice of Motion since it did not comply with Order 5 of the High Court Rules. More importantly the Court ruled that this is a defect that cannot be cured by Order 2 as it falls outside the four ways of initiating proceedings. On the issue of pleadings the defendants submitted the commentary found in the Supreme Court Practice, 1991, Volume 1, paragraph 18/7/1, which states;

"Pleadings continue to play an essential part in civil actions and their primary purpose is to define the issues and thereby to inform the parties in advance of the case thy have to meet and so enable them to take steps and deal with it, and such primary purpose remains and can still prove of vital importance and therefore it is bad law and bad practice to shrug of a criticism as a "mere pleading point". (see per Lord Edmund – Davies in Farrel v Secretary of State for Defence [1980]. W.L.R 172 p 180; [180] 1 ALL E.R 166. P 173 failure to plead negligence against a specified person produces the Court from findings that person guilty of negligence)."

[50] The defendants also submitted that it is not the practice of the Court to grant an interlocutory injunction which would have the practical effect of granting the sole relief claimed. In support of this, defendants submitted the case of Carpenters Properties Ltd v TeArawa Ltd [2011] FJHC 728; HBC 178.2011 (14 November 2011).

[51] In Ba Town Council v Fiji Broadcasting Commission [1976] 22 FLR 91, Kermode J in dismissing an application for an injunction, where the sole relief sought was injunction without any substantive relief, held at page 99 as follows:-

"Quite apart from the merits of the application the law pertaining to injunctions would also dictate that the applications be dismissed. Although each writ also seeks a declaratory judgment in effect the soles relief claimed in each writ is the injunctions. It is not the practice of the court to grant an interlocutory injunction which will have the practical effect of granting the sole relief claimed. (Dodd v. Marine Workers Union (1923) 93 L.J. Ch. 65."

[52] For the reasons aforementioned, I hold with the submissions of the defendants' and confirm the position that an injunction cannot be granted against the State as prayed for by the plaintiffs'. I therefore, make the following orders.

Orders

(1) The Notice of Motion filed by the plaintiffs dated 25 June, 2015 is struck out and dismissed.

(2) The application of the plaintiffs for injunction against the 1st, 2nd, and 3rd defendants is refused.

(3) The plaintiffs are ordered to pay the defendants' costs summarily assessed $ 750 as costs of this application.

R.S.S.Sapuvida
Judge

28.08.2015

Solicitors:

- Office of the Attorney General Chambers, Lautoka for the First, Second & Third Defendants
- Office of Aman R. Singh Lawyers, Lautoka for the Plaintiffs