South Pacific Metals Pte Ltd v Silikiwai [2021] FJHC 386; HBC151.2021 (15 December 2021)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 151 of 2021

BETWEEN

SOUTH PACIFIC METALS PTE LIMITED a limited liability company having

its principal office at 9 – 12 Nukuwatu Street, Wailada Industrial Subdivision,

Lami in the Republic of Fiji. (part of PACIFIC BUILDING SOLUTIONS

GROUP OF COMPANIES or “PBS GROUP” a multi discipline of

group of construction companies based in Fiji).

FIRST PLAINTIFF

AND

PACIFIC MARINE & CIVIL SOLUTIONS PTE LIMITED a limited liability

company having its principal office at 9 – 12 Nukuwatu Street,

Wailada Industrial Subdivision, Lami in the Republic of Fiji.

(part of PACIFIC BUILDING SOLUTIONS GROUP OF

COMPANIES or “PBS GROUP” a multi discipline of

group of construction companies based in Fiji).

SECOND PLAINTIFF

AND

EMOSI SILIKIWAI of Lami Foreshore, Lami in the Republic of Fiji,

Occupation is unknown to the plaintiff.

DEFENDANT

Counsel : Mr. G. O’Driscoll for the Plaintiffs.

Mr. K. Maisamoa for the Defendant.

Date of Hearing : 22^nd November 2021

Date of Ruling : 15^th December 2021

RULING

(On the Application for Interim Injunction)

[1] The plaintiffs file the writ of summons and statement of claim seeking the following reliefs against the defendant:

(i) Judgment in the sum of $89,294.97 for money paid to the defendant by the 2^nd plaintiff through the defendant’s false misrepresentations as set out paragraph 8 hereof.
(ii) General damages to be assessed for the 1^st plaintiff’s losses sustained as set out in paragraph 13 hereof.
(iii) Costs of this action on a full indemnity basis.
(iv) Interests as per paragraph 17 hereof.
(v) Such further relief and orders as this Honourable Court deems fit in the circumstances.

[2] The plaintiffs on 06^th August 2021 filed an ex-parte notice of motion seeking the following orders:

(i) An order restraining the defendant whether by himself and / or his servants and / or agents and / or by his Solicitors and otherwise from willfully blocking the road that gives access to the 1^st plaintiff to its Tenancy at Will No. LD 60/1146, Lease No. TAW 46971 being Lot 2 on Plan DDS 1747, Known as Lami Tiri Land Part of S890.
(ii) An order restraining the defendant whether by himself and / or his servants and / or agents and / or by his Solicitors from interfering with the 1^st plaintiff’s right to use the road that runs through the state foreshore land property described in Tenancy at Will No. LD 60/1146, Lease No. TAW 46971 being Lot 2 on Plan DDS 1747, known as Lami Tiri Land Part of S890.
(iii) An order that the defendant remove any locks, gates and any other form of blockade immediately currently placed on access road that prevent access the plaintiff’s Lot.
(iv) That the costs of this application be paid by the defendant.

[3] The defendant on filed summons pursuant to Order 18 rule 18 of the High Court rules 1988 seeking to have the plaintiff’s claim struck out. The court hear both applications together.

[4] Order 18 rule 18 of the High court Rules 1988 provides:

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

[5] In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch 506 it was held that the power given to strike out any pleading or any Part of a pleading under this rule is not mandatory but permissive, and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea.

In Drummond-Jackson v British Medical Association [1970] 1 W.L.R. 688; [1970] 1 All ER 1094 it was held;

Over a long period of years it has been firmly established by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause of action is a summary power which should be exercised only in plain and obvious cases.

In the case of Walters v Sunday Pictorial Newspapers Limited [1961] 2 All ER 761 it was held:

It is well established that the drastic remedy of striking out a pleading or, part of a pleading, cannot be resorted to unless it is quite clear that the pleading objected to, discloses no arguable case. Indeed, it has been conceded before us that the Rule is applicable only in plain and obvious cases.

In Narawa v Native Land Trust Board [2003] FJHC 302; HBC0232d.1995s (11 July 2003) the court made the flowing observations:

In the context of this case I find the following statement of Megarry V.C. in Gleeson v J. Wippell & Co. [1971] 1 W.L.R. 510 at 518 apt:

“First, there is the well-settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, and only in plain and obvious cases that are clear beyond doubt. Second, Zeiss No. 3 [1970] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary; even if the matter is or may be res judicata, it may be better not to strike out the pleadings but to leave the matter to be resolved at the trial”.

[6] The learned counsel for the defendant relied on two grounds. Ground one is, Robert Peter Semaan does not have locus standi to bring these proceedings since he is not the owner of the property in question and also that he is not entitled to swear the affidavit in support as he is not a director of any of the plaintiff companies.

[7] The defendant is sued by the two companies named as plaintiffs and not by Robert Peter Semaan in person.

[8] A company being a separate legal entity, its rights and duties are separate from the rights and duties of its directors and shareholders. This means the liability of shareholders are limited as the personal assets of the owners cannot be touched to pay the debts of the company. This protection is called “the corporate veil”. This fundamental principle of law was established by the House of Lords in Salomon v Salomon & Co Ltd [1897] AC 22 / [1896] UKHC 1.

[9] The plaintiffs attached a copy of the company registration updated on 14^th December 2020 to the affidavit in reply which shows Robert Peter Semaan is a director of the 2^nd named plaintiff.

[10] The learned counsel for the defendant submits that the plaintiff has filed Indorsement of Claim along with the writ of summons and subsequently filed the statement of claim with the leave of the court. The learned counsel’s submission is that the statement of claim is an amendment to the indorsement of claim which is not. The writ of summons and the indorsement of claim was filed on 06^th August 2021 and the statement of claim was filed on 25^th August 2021 before the defendant filed his statement of defence.

[11] Order 20 rule 1 of the High Court Rules 1988 provides:

Subject to parh (3), the plhe plaintiff may, without the leave of the Court, amend the writ once at any time before the pleadings in the action begun by the writ are deemed to be closed.

[12] The stat of claim of the plaintiffntiffs was filed long before the pleadings were closed. Therefore, even if the court accepts the argument of the learned counsel for the defendant as correct, still the plaintiffs had the right to file it without the leave of the court.

[13] The learned counsel for the defendant submits that since the plaintiffs’ tenancy at will has not been registered they cannot claim any right over the property.

[14] Section 57 of the Land Transfer Act 1971 provides:

(1) When any land is intended to be leased or demised for a life or lives or for any term exceeding one year, the proprietor shall execute in duplicate a lease in the prescribed form which shall be registered in accordance with the provisions of this Act, and every such instrument shall, for description of land intended to be dealt with, refer to the instrument of title of the lessor, and shall give such description as may be necessary to identify the land, and shall contain an accurate statement of the land intended to be leased.
(2) A lease executed in the prescribed form may be registered notwithstanding that the term thereof is for one year or less, but any lease which shall have been granted for a term not exceeding one year shall be valid without registration:

Provided that no right or covenant to purchase the land contained in any lease shall be valid as against any subsequent purchaser of the reversion unless such lease be registered.

[15] Oxford Dictionary of Law describes tenancy-at-will as follows:

A tenancy that can be terminated by the landlord or the tenant at any time. A tenancy at will usually arises by implication, when the owner of land allows a person to occupy it although he has no fixed term, periodic tenancy, or licence (for example, when a landlord agrees to the tenant holding over). A tenancy at will may be created by express agreement, as, for example, when a landlord permits the tenant to occupy premises before the formal grant of a lease or the transfer of the freehold. If the landlord starts to accept rent on a periodic basis, an ordinary periodic tenancy is created. A tenant who holds over after a fixed term assured tenancy expires may have a statutory periodic tenancy. A tenancy at will of business premises does not have a statutory protection given to a business tenancy. In the case of residential premises, however, statutory protection from eviction will apply. A tenancy at will can be terminated by the landlord demanding possession or if either he or the tenant dies or parts with his interest in the land.

[16] A tenancy-at-will is not a lease within the meaning of Land Transfer Act and therefore, the registration is not required.

[17] For these reasons the application of the defendant for striking out has no merits and liable to be struck out.

[18] I will now deal with the application for injunction.

[19] The 1^st plaintiff is the tenant at will of the Land Department on LD Reference No. TAW 60/1146, Lease No. TAW 46971 of Lot 2 on DDS 1747 known as Lami Tiri Land, part of s890. The plaintiffs’ position is that the defendant was the tenant at will on LD 60/462 which is the land adjoining to the plaintiffs’ land and his tenancy commenced on 17^th August 1987 and terminated 06^th December 2004. An order for vacant possession has been made by the court which is now in appeal.

[20] It is averred in the affidavit in support that the defendant claiming to be the caretaker and the person responsible for collecting rent received money totaling $89,294.07. It is not clear as to why the plaintiffs paid rent to the defendant when they knew very well they were the tenants at will of the Land Department. While denying receiving of $89,294 and demanding rental payment the defendant states that he made an agreement with Director Sun Jae Lee to cut the derelict boat a Draunibota Bay and he has to make the payment for security services provided. The defendant states further that the purpose of locking the gate from the main entrance is in line with the court order dated 06^th November 2020 including the restrictions imposed by the Ministry of health in relation to Covid-19 Protocol.

[21] 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.

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.

In Hubbard & Another v Vosper & Another [ 1972] 2 Q.B. 84 Lord Denning said:

In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also the strength of the defence, and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead. .... The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules.

[22] Attorney General of the Republic of Fiji v Silikiwai [2016] FJHC 330; HBC149.2014 (25 April 2016) is an action against the defendant instituted by the Attorney General seeking to have the vacant possession of the land. In that case the court ordered the defendant to give vacant possession of the state land at Tiri, Naqumu, Lami to the plaintiff forthwith. The defendant appealed the judgment to the Court of Appeal and the Court of Appeal stayed the execution of the judgment pending the determination of the appeal.

[23] The ruling of the Court of Appeal does not confer any right over the land on the defendant. The Court of Appeal has only stayed the execution of the judgment of the High Court pending the appeal. Even if the defendant has a right over this land he cannot take the law into his own hands and obstruct the plaintiffs’ right of way.

[24] If the injunctions sought are not granted the plaintiffs will continue to suffer damages and awarding of damages will not be an adequate remedy and therefore the plaintiffs will be at an uncompensatable disadvantage.

[25] For the reasons aforesaid the court makes the following orders.

ORDERS

1. The defendant’s application for striking out is refused.
2. The orders (i), (ii) and (iii) sought in the summons filed on 06^th August 2021 by the plaintiffs are granted.
3. The defendant is ordered to pay $2000.00 as costs of this application within 14 days from the date of this ruling.
   

Lyone Seneviratne

JUDGE

15^TH December 2021