Avoi v Kriss [2001] FJLawRp 87; [2001] 1 FLR 332 (9 October 2001)

VASEMACA AVOI, MOSESE BAI, TOM VICTOR DARI, AMELE KOI, TOM VICTOR DARI (JNR) and MOSESE AVOI v ALIPATE KRISS, JACK KOI, JOSUA SADE, TUWATE MALATOLU, SAMUSIATA, JOJI MANASA and MITIELI SIVOI

High Court Civil Jurisdiction

17 April, 7 and 21 May, 9 October, 2001

HBC 558/00S

Injunction – triable issues - Plaintiffs commenced subdivision of the land – both parties seeking to injunct the other: Plaintiffs seeking to injunct Defendants from completing subdivision of land and Defendants seeking to injunct Plaintiffs from representing themselves as trustees of the land for the villagers – proper Trustees – whether Deed of Trust valid – whether fraudulent representation to obtain lease - balance of convenience – suspension of Crown Lease

The parties sought injunctions against each other: the Plaintiffs sought to restrain the Defendants from obstructing the commencement and completion of subdivision works, secondly restraining Defendants within 100 metres of the perimeter of the land; the Defendants sought three interim injunctions: to restrain the Plaintiffs representing themselves as trustees for the villagers, to restrain the Plaintiffs from doing anything in their purported capacities as trustees on behalf of the villagers, and to restrain the Plaintiffs from subdividing or surveying the land. The Plaintiffs claimed to be registered trustees of Solomon Islanders villagers residing in Nasinu and registered lessees on behalf of the villagers. A 99 year lease was granted in favour of the trustees. The Court assessed that injunctions should not be given pending final determination of the action as it assessed 5 triable issues to be determined. It made certain orders directed at the Director of Lands to suspend the Crown Lease and control all land matters.

Held – Neither the Plaintiffs nor Defendants will suffer any damage if injunctions are refused. Order that Director of Lands suspend Crown Lease until final determination of the action. Director of Lands to control all land related matters. The Plaintiffs to refrain from carrying out or authorising further work on the subdivision pending final determination of the action.

Applications for both injunctions refused.

[Note: subsequently, on 29 April 2002, the Court granted leave to file Defence to Reply, Defence to Counter-Claim, with liberty to the Defendant to file a Reply, and affidavits verifying lists of documents were filed. A notice of intention to proceed was filed on 10 June 2004 and on 17 January 2006 the action and counterclaim were struck out for non-prosecution.]

Cases referred to in Judgment
American Cyanamid v Ethicon Ltd [1975] UKHL 1; (1975) AC 396

Rosalyn S. Singh for the Plaintiffs
Sevuloni R. Valenitabua for the Defendant

9 October, 2001

JUDGMENT

Byrne, J

The Court has before it two applications for Injunctions by the parties against themselves. By the Statement of Claim annexed to the Writ herein which was issued on the 8th of December 2000 the Plaintiffs claim to be the registered trustees of the Solomon Islanders Villagers residing at Newtown Settlement, Nasinu. They comprise persons who are members of one family and state that they are registered lessees of Crown Lease No. 483779 situated in Naitasiri.

Both the Plaintiffs and Defendants are descendants of Solomon Islanders and New Hebrideans who were settled at Newtown Settlement in or about 1952.

In or about October 1989 the original trustees of the Solomon Islanders communities at the Settlement applied to the Director of Lands for a lease of the land concerned.

An Approval Notice of Lease was granted to the original trustees for a period of 99 years beginning at the 1st of July 1989.

On the 29th of June 2000 a proper lease of the land was granted in favour of the trustees for a period of 99 years commencing on the 1st of June 2000. The Plaintiffs claim to hold title to the leased land on behalf of the Solomon Islanders Villagers residing at the Settlement. The Defendants deny this claim. They also deny that at a General Meeting of the Solomon Islanders Villagers at Newtown on the 1st of May 1999 the Plaintiffs were authorised to hold on trust as joint trustees on behalf of the Solomon Islanders Villagers all properties both real and personal then and thereafter required by the villagers.

Sometime in November 2000 the Plaintiffs engaged Western Equipment Hire Limited of Suva to commence the initial subdividing of the leased land as required under the terms of the lease.

The Defendants deny this. They also deny the claim by the Plaintiffs that they have attempted to sabotage the commencement of the development by making threats to employees of Western Equipment Hire Limited.

The Defendants also deny the Plaintiffs' claim that they have threatened the Plaintiffs that they would disrupt or stop the commencement of the development works.

The Plaintiffs seek two Injunctions against the Defendants, the first restraining them from obstructing in anyway the commencement and completion of works by Western Equipment Hire Limited or anyone else engaged by the Plaintiffs and secondly an injunction restraining the Defendants from presenting themselves within 100 metres of the perimeter of the land in question. They also seek a Declaration that they are the lawfully constituted trustees for the Solomon Islanders Villagers residing at the Newtown Settlement and they are the registered lessees of the land comprised in Crown Lease No. 483779.

The Defendants by an Amended Notice of Motion of the 21st of February 2001 seek three Interim Injunctions against the Plaintiffs:

(1) An Order restraining the Plaintiffs from representing themselves as trustees of the Solomon Islanders Villagers in Newtown Settlement until final determination of this action.

(2) An Injunction restraining the Plaintiffs from doing anything in their purported capacities as trustees on behalf of the Solomon Islanders Villagers at Newtown Settlement until final determination of this action.

(3) An Interim Injunction restraining the Plaintiffs from subdividing or surveying for sub-divisional purposes all the land comprised in Crown Lease No. 483779.

They seek an order directing the Director of Lands to suspend Crown Lease No. 483779 until final determination of this action.

On the 12th of March 2001 I gave the Defendants leave to join the Director of Lands as a third party to the action.

From this recitation of the allegations by the parties against each other it is clear there are numerous trial issues which may be summarised as follows:

• Whether the Plaintiffs were duly appointed as trustees?
• Whether they were appointed under Section 4 of the Trustee Act Cap. 65?
• Whether the Deed of Trust No. 24342 dated the 6th of December 2000 is valid?

This document purports to appoint the Plaintiffs trustees of the land but the Defendants claim it is invalid because it was not signed by or on behalf of the beneficiaries of the Deed.

• Whether the Plaintiffs made any fraudulent representation to the Director of Lands with a view to obtaining the Crown Lease?
• Whether the Crown Lease should be set aside on the ground of fraud?
  

The now well known case of American Cyanamid v Ethicon Ltd [1975] UKHL 1; (1975) AC 396 held that in deciding whether to grant an Injunction the Court must consider three questions:

(i) Whether there are serious issues to be tried?
(ii) Whether damages would be a sufficient remedy?
(iii) Where does the balance of convenience lie?

Having considered the various affidavits filed by the parties and their submissions I have come to the conclusion that the Injunctions sought against each other by the Plaintiffs and Defendants should not be granted. I am not satisfied that either the Plaintiffs or Defendants will suffer any damage if I refuse the Injunctions sought and that the most sensible resolution of the present disagreement between the parties is to order that the Director of Lands and Surveyor General suspend Crown Lease No. 483779 until final determination of this action and that during this suspension the Director of Lands is to control all matters relating to the land at Newtown Settlement. I also order that pending final determination of this action or until further order the Plaintiffs are to refrain from carrying out or authorising any more work on the subdivision.

When the parties appeared before me in Chambers some months ago I earnestly suggested to them that they should attempt to settle their dispute out of Court. To date they have not done so but once again I commend this course to them. It seems to me that they are a relatively small national group in the population of Suva and that with an injection of goodwill and common sense towards each other they could well achieve that object. All the Plaintiffs and the Defendants and the persons they represent are entitled to the use of the land. I remind them that even if successful in this litigation they will be liable for considerable legal costs.

The Orders I therefore make are:
That the applications for both Injunctions are dismissed subject to the Orders I have mentioned above. The pleadings must take their normal course. Costs will be in the cause.

Applications fail.

Marie Chan