Gold Rock Investment Ltd v iTaukei Land Trust Board [2017] FJHC 717; HBC121.2017 (28 September 2017)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 121 of 2017

BETWEEN

GOLD ROCK INVESTMENT LIMTED a limited liability company having its

registered office at 54 Millet Street, Vatuwaqa, Suva.

PLAINTIFF

AND

iTAUKEI LAND TRUST BOARD, a statutory body incorporated under the

iTaukei Land Trust Act having its registered office at 431

Victoria Parade, Suva.

FIRST DEFENDANT

AND

STANDARD CONCRETE INDUSTRIES LIMITED a limited liability company

having its registered office at Lot 1, Jai Hanuman Road,

Bhindi Sub-division, Vatuwaqa, Suva.

SECOND DEFENDANT

AND

MATAQALI ULUGAI as customary owner of iTaukei land

known as “wailiko” and “qoliqoli” owners of adjacent

creek and river of Dakuinuku Village,

Sawakasa, Tailevu.

INTERESTED PARTY

Counsel : Mr. N. Tuifagalele for the plaintiff.

Ms. Q. Vokanavanua for the 1^st defendant.

Ms. U. Kunatuba for the 2^nd defendant.

Date of Hearing : 14^th September, 2017

Date of Ruling : 28^th September, 2017

RULING

(On the application for injunction)

[1] The plaintiff instated these proceedings by writ of summons seeking the following reliefs:

1. For an order that the first defendant be restrained to process and/or issue any gravel extraction license to the second defendant over the creek and/or river and land customarily owned by the interested party.
2. An order that the first defendant be restrained from harassing the plaintiff and/or conducting themselves in a manner as landlord that will prejudice the plaintiff as a lease or license applicant.
3. An order that the second defendant be restrained from carrying out any field work, scientific testes, environmental assessment and extraction of sand and/or gravel over the creek and/or river and land customarily owned by the interested party.
4. Specific Damages.
5. Consultation costs.
6. General Damages.
7. General Damages.
8. Exemplary Damages at common law.
9. Interest.
10. Cost of the action on indemnity basis.

[2] On 01^st May, 2017 the plaintiff filed an ex-parte motion which was later converted into inter-partes by the court, seeking the following reliefs:

1. That the first defendant whether by themselves or by their servants or by their agents be restrained until further order of this court to process and/or issue any gravel extraction license to the second defendant over the creek and/or river and land customarily owned by the interested party.
2. That the first defendant whether by themselves or by their servants or by their agents be restrained until further order of this court from harassing the plaintiff and/or conducting themselves in a manner as landlord that will prejudice the plaintiff as a lease or license applicant.
3. That the first defendant whether by themselves or by their servants or by their agents be restrained until further order of this court from unlawfully intervening and/or changing the majority decision and/or affairs of the interested party and its members to the plaintiff’s detriment.
4. That the first defendant whether by themselves or by their servants or by their agents be restrained until further order of this court to carry out any field work, scientific tests, environmental assessment and extraction of sand and/or gravel over the creek and/or river and land customarily owned by the interested party.

[3] It is the position of the plaintiff that it applied for gravel extraction license from the 1^st defendant which was approved on the 27^th April, 2017 but subsequently learned that the 1^st defendant would issue another license to the 2^nd defendant.

[4] Particulars of breach as averred in the statement of claim are as follows;

1. Ignore the majority decision of the members of the interested party to issue the license to the plaintiff alone by its letter dated 29^th February, 2017.
2. Breach its lawful obligation and policy to ignore the decision of the interested party and issue a second license over the same subject area to the 2^nd defendant.

[5] The 1^st defendant in its affidavit in opposition has given the status of the applications made by both the plaintiff and the 2^nd defendant as of the date of filing the affidavit in opposition. The 1^st defendant has considered both applications and both parties have been served with offer letters requesting them to pay $8,740.00 which they have paid. The 1^st defendant is waiting for the Environment Impact Assessment Certificate from the Environment Department.

[6] The Both defendants have filed along with their respective affidavits a map which shows the different areas allocated to the plaintiff and to the 1^st defendant for the extraction of gravel. In the said map the plaintiff has been granted approval to extract gravel from Pit 1 to Pit 9 whereas Pit 10 to Pit 14 have been allocated to the 2^nd defendant. It is also pertinent to note that the 2^nd defendant has made his application in June 2016 and the plaintiff’s application was lodged six months thereafter on 5^th January, 2017 and also that the 2^nd defendant had earlier been issued license since 2009.

[8] The guide lines laid down by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 are still regarded as the leading source of the law of injunction where it was held that in granting or refusing of interim injunction following guidelines can be taken into consideration:

(a) A serious question to be tried at the hearing of the substantive matter.
(b) Whether the damages is an adequate remedy.
(c) In whose favour the balance of convenience lie if the injunction is granted or refused.

[9] In the case of Cambridge Nutrition Ltd v BBC [1990] 3 All ER 523 at 534j Kerr L.J. made the following observations;

It is important to bear in mind that the American Cyanamid case contains no principle of universal application. The only such principle is the statutory power of the court to grant inunctions when it is just and convenient to do so. The American Cyanamid case is no more than a set of useful guidelines which apply in many cases. It must never be used as a rule of thumb, let alone as a straightjacket.... The American Cyanamid case provides an authoritative and most helpful approach to cases where the function of the court in relation to the grant or refusal of interim injunctions is to hold the balance as justly as possible in situations where the substantial issues between the parties can only be resolve by a trial.

[10] Having mind the principles stated above I will now consider whether there are sufficient grounds for the court to exercise its discretionary power to grant injunctions sought by the plaintiff.

[11] If the 1^st defendant has ignored the majority’s decision of the interested party and ignored the decision of the interested party as alleged by the plaintiff does a cause of action accrue to the plaintiff to sue the 1^st defendant? If the 1^st defendant does anything to the detriment of the 3^rd party it is the third party that should come before the court with the complaint and not the 2^nd defendant.

[12] Injunction is an equitable remedy granted at the discretion of the court. For the proper exercise of the discretion of the court the party who seeks the intervention of the court by way of injunctive relief must come to court with clean hands and full facts. Suppression of any material fact will always be to the detriment of the party who seeks an injunction.

[13] It is absolutely clear from the maps filed by the 1^st and 2^nd defendants that the two permits have been granted in respect of different pits which fact has not been denied by the plaintiff. The plaintiff placed much reliance on the letter written by the interested party to the 1^st defendant on 10^th March, 2017. From this letter both the plaintiff and the 1^st defendant had been extracting gravel in this area before these proceedings were instituted. I reproduce below two relevant paragraphs of the said letter (translation):

It’s been many years we have been conversing and negotiating with Standard Concrete but yet still nothing solid has been approved. We have asked Standard Concrete to employ our man since they digging rocks from our land but they did not provide that employment.

Standard Concrete has been digging stones in our land and transporting stones to another location for crushing, and for Gold Rock Investments has installed their own stone crushing machine in the site and right now it has been giving employment to youths of Mataqali Ulugai.

[14] From the above it appears clearly that both the plaintiff and the 2^nd defendant had been doing gravel extraction although the plaintiff came to court on the basis that the 1^st defendant has applied for a permit for the first time. The plaintiff has suppressed the fact that the 2^nd defendant was extracting gravel before this matter was referred to the court which is a material fact for the reason if it is correct no court would grant an injunction restraining the 1^st defendant from issuing a licence to the 2^nd defendant.

[15] From the materials available on record it is clear that the dispute is between the 1^st defendant and the interested party. It is the interested party that has a reason to object to the granting of another license to the 2^nd defendant and not the plaintiff.

[16] From the particulars of breach as stated in the statement of claim which I have reproduced above it appears that if there is any violation of a right that is of the interested party and not of the plaintiff.

[17] For the reasons set out above the court is of the view that there is no serious issue between the plaintiff and the 1^st defendant, to be tried at the hearing of the substantive matter.

[18] The plaintiff has failed to indicate the nature of the damage that would cause to it if a permit is granted to the 2^nd defendant in respect of a different creek. The plaintiff has been trying to prevent the 1^st defendant from granting a permit for a different creek to the 2^nd defendant which in my view, is absolutely unfair and as I see it this is nothing but a rivalry between two companies engaged in the same business. In my view the question whether the damages, if any, would sufficiently be repaired does not arise in this matter for consideration.

[19] Without any reasonable ground if the court grants the injunction sought by the plaintiff against the 1^st defendant the 2^nd defendant would be placed at a very inconvenient and disadvantageous position. However, when one considers the so called dispute between the plaintiff and the 1^st defendant for the reasons I have stated above no party would be at any inconvenience if the injunction sought by the plaintiff is granted or refused.

[20] Accordingly, the court makes the following orders:

1. The orders sought in the motion dated 01^st May, 2017 are refused.
2. The plaintiff is ordered to pay the 1^st and 2^nd defendant $1000.00 each ($2000.00) as costs of this application.
   

Lyone Seneviratne

JUDGE

28^th September, 2017