Nasinu Town Council v Khan [2011] FJMC 82; CC 592.2010 (27 July 2011)

IN THE MAGISTRATES COURT AT NASINU

Civil Case No. 592/2010

NASINU TOWN COUNCIL
Plaintiff

v

TAUZ KHAN
Defendant

Mr. Semi Tinivata for the Plaintiff
Mr. Rajendra Pal Chaudhry for the Defendant

Ruling on Injunction

Background

1] On 23rd November 2010, the Special Administrator of the Nasinu Town Council received a letter signed by more than twenty (20) residents. The 20 signatories are affected residents saying that they are fed up with the illegal activities of Safeway Electronics which are blatantly conducted beside their homes. The 20 complainants (residents) claimed in this letter that they have been the victims for nearly two decades and because of this they were questioning and requesting the Nasinu Town Council to use all its powers to remove the defendant from their neighborhood. Further to that, the 20 complainants (residents) claimed that they appeared to be no concern from the authorities for the health and safety of the residents, a litter free environment as these residents have been experiencing this nuisance for nearly two decades. The complainants (residents) claimed in the letter some illegal activities such as operating an illegal taxi base which operates from the subject area 24 hours; mechanical repairs, penal beating, spray painting out in the open thus exposing residents to toxic fumes and noise pollution. Moreover, the defendant's compound is an eyesore, with rusty shipping containers, wrecked cars, old tyres assorted junk, old engines, oil containers with used oil and the complainants are aware of the risks of dengue as well as filarisis. Apart from that, the garbage remains are putrid and smelly and oil from repairs and other mechanical activities flow into the drains and compounds after heavy rain which pollute the environment. On the other hand, the defendant lives somewhere else so he has no qualms about creating a filthy environment for others. The complainants (residents) claim that the illegal installation of a bowser near the road causes long queues of taxis that often blocks the road that cause double parking which is dangerous both to pedestrians and motorists. It is further claimed by the 20 complainants (residents) that a youth was recently murdered in a conflict near this bowser.

The complainants (residents) are asking under whose authority the bowser was installed since the defendant was once ordered by the Court (Criminal Case No. 35 of 1998) to cease illegal operations from the particular site with a $500.00 fine but the defendant paid the fine and continued with the illegal activities.

2] The letter from the 20 complainants (residents) lists certain facts in chronological order:

1. 1991: the defendant was served a statutory notice to cease all illegal operations from the site by the Divisional Health Inspector;
   
2. 1992: taxi base permit was revoked by the Town and Country Planning;
   
3. 1994: Suva Local Authority took legal action against the defendant for conducting illegal actions from the site;
   
4. 1994: the defendant's application for rezoning was rejected by the Town & Country Planning;
   
5. 1995: the defendant's application for rezoning was rejected by the Suva Local Authority;
   
6. 1996: The defendant was given approval by Town & Country Planning to rezone and build an electronic workshop at the site, in spite of the resident's strong objections. The complainants believed that corruptions took place by the sudden turnaround of the Town & Country Planning. They felt betrayed by the Ministry and appealed to the Minister for Housing. Their appeal was not even acknowledged by the Minister;
   
7. 1996: Residents appealed against the rezoning but the appeal was not addressed by the Director of Town and Country Planning;
   
8. 2003: The defendant was fined $500 by the Magistrate Court (Criminal Case No. 35 of 1998) and ordered to terminate the operation of his taxi business and to cease all illegal operations from the site forthwith, however, the defendant paid the fine and continued with his illegal activities, even to the present date.
   

3] The 20 complainants (residents) concluded with an appeal to the Nasinu Town Council to intervene and remove the defendant and his junk from their residential zoned area.

4] Further, a letter was received by the Special Administrator on 29th November, 2010 by a resident namely, Mr. Henry Howard. He claims that he has been complaining about the defendant's illegal activities for the last 20 years. He felt that how the rezoning which was done for the defendant to operate an electric workshop was suspicious and they want answers.

5] An inspection was done by the Nasinu Town Council Health Inspector, Mr. Bikesh Sharma, on 16th November, 2010. He noticed with his very own eyes that vehicle Registration Number LT 2993's engine being overhauled. The Health Inspector stated that engine parts were opened and scattered on the flooring of the garage. He further claimed that engine parts were being water blasted in front of the garage and water carrying used oil and grease were being discharged into the storm water drains. The garage area was congested with vehicle parts scattered all around on the floor and a total of 10 people including the mechanics, electricians and customers were in the garage. Fleet of vehicles was parked in front of the garage and both sides of the road.

6] The Health Inspector (IK 13) stated that the impacts noted during inspections were:

1. Practice of improper waste disposal techniques causing environment pollution such as oil spills were discharged into the storm water drains having final point of discharge into the creek, vehicle parts and smoke emissions during testing of vehicle engines, etc.
   
2. Dumping of junk parks within the allotment which leads to collection of water and breeding of mosquitoes;
   
3. Unsightly appearance of the property and use is not as per the Town Planning Provisions;
   
4. Contradicting approval requirements of both the Nasinu Town Council and the Director of Town and Country Panning in that the allowance was given for electronic works and not mechanical or other use as the owner of the premises is carrying out; and
   
5. Traffic congestion duet o vehicle parked on both sides of the road as provisions are not available on site parking.
   

7] Further, A report from the Department of Environment (IK 8) was done and taken on 2nd December, 2010 states:

1. The risk areas identified through the pollution incident inspection were confirmed to actual pollution source area;
   
2. The incidents are connected to mechanical operations that the facility undertakes. It would be of the necessary comments of the Department of Town & Country Planning and the Nasinu Town Council on the approval uses for the site before a waste disposal permit is granted.
   
3. The facility should not carry out works for operations of the Liquid Petroleum Gas Station and Mechanical works as the potential risks points are associated with these activities for such an area.
   

8] All these observations and complaints are related to the Defendant, Mr. Tauz Khan, trading as Safeway Electronics Limited. The Defendant is the Managing Director of the Company registered under the Laws of Fiji and in the Business of special use relating to Electronic, Security Supply and Installations as sanctioned by the Plaintiff and/or the Department of Country Planning.

The Plaintiff's Case

9] Upon these findings and complains, the Plaintiff filled its Ex-parte application along with the Writ of Summons seeking, that illegal operations which have been done by the Defendant to be ceased. The Plaintiff further in its Writ said that the Plaintiff is a duly corporate body constituted under the provision of the Local Government Act (Cap 125) having its office at Mayoral Drive, Valelevu, Nasinu and the Defendant is a company registered under the Laws of Fiji and in the Business of special use relating to Electronic and Security supply and Installation as sanctioned by the Plaintiff and/or the Department of Town and Country Planning. The Defendant has been operating other ancillary business which has not sanctioned and additional business licenses by the Plaintiff and/or the Director of Town and Country Planning as the Licensing Authority. The Defendant is operating a mechanical garage from the residential B area, at lot 1 and 2 Vesivesi Road, Laucala Beach Estate, Nasinu therefore, the Defendant has been given a notice's many times to stop operation as it harms the nearby neighbors. Accordance to the Town Planning Act, Cap 139 (General Provision), the lots allocated to be residential shall be used as a purpose of residential only. The Defendant was only given the approval for the Business Licenses of special use relating to operating an Electronic and Security Supply and Installations by the Plaintiff as a Licensing Authority. The Defendant also operates a LPG Service Station from that area for which he was not been given a license from the Plaintiff and/or from the Director of Town & Country Planning. The Defendant also operates a Taxi Business from the said lot for which the Base letter from the Plaintiff's PSV Officer was not given. The Defendant has been given the stop illegal operation notices many occasions but without any measures to the notices he is still operating all the illegal activities from the residential. Upon routine inspection carried out by the Plaintiff it was found that the Defendant was still operating the illegal mechanical garage and LPG Gas Service Station. On 23rd July 2010, there was a stakeholders meeting of relevant Government Departments with all the illegal Mechanical Garage Operators, where they were told to cease all illegal operations and 1st to apply rezoning the property from Residential to Industrial if they want to operate a mechanical garage. The Plaintiff spills and discharges the motor vehicle oil or other noxious materials in the compound and the drain which is hazardous for the public and the nearby resident. The inspection has also been done by the Department of Environment on 16th day of November where they found out that the Defendant spill the oils and other noxious materials on the ground which is hazardous to the people. They have also declared that the said land is residential lots. Complains has been received by the Plaintiff and also by the Minister for Local Government in written and also in verbal about the Defendants illegal operation by the public and the nearby neighbors. The Defendant has been taken to Court previously where he was given the orders from the Court to cease all the illegal activities but the continues to operate, not following the Court Order which proves the case of Contempt of Court. The Plaintiff has also distributed the pamphlets which were the joint operation with the Fiji Police Force where it was advised to the public about operating an Illegal Mechanical garage from the residential property. The Defendant has breached the Part VI, Section 56 (f) and (i) and Section 59 of the Public Health Act, Cap 111 and Section 7 (1) and 7 (7) (a) of the Town Planning Act, Cap.

Hearing

10] The Ex Parte motion was supported in open court on 09th December 2010. It was supported by the Affidavit of Mr. Ilaitia Koroi, the Senior Enforcement Officer of the Plaintiff with the documents marked as IK-1 to IK 13. This Court was satisfied and following Orders were granted on that day.

1. The Defendant to cease operation of Illegal Mechanical Garage from the residential B lot located at, Lot 1 & 2, DP 4266, Vesivesi Road, Laucala Beach Estate, Nasinu.
   

b) The Defendant to cease illegal operation of LPG Service Station from the said lot.

100. The Defendant to stop operation of the Taxi Business from the lot.
     

4. The premises to be cleaned and all debris, vehicle parts, equipment and materials used for vehicle maintenance are to be removed from the premises.
   
5. The drainage where the Defendant may have spilled the oil to be cleaned if there has been any discharge of oil or other noxious materials.
   
6. The Defendant to operate with the business for which he was given an approval from the Plaintiff that is Special use Electronic Workshop.
   

11] According to the Affidavit of Mr. Jagendra Raj, These Orders were served to the Defendant on 10th December 2010 (following day). I went to my home country Sri Lanka on 15th December 2010. Till then no application was filed to vacate these orders. But on 17th December 2010, the Defendant filed ex-parte notice of motion to vacate the said orders. On that application, my brother Magistrate His Worship Mr Nazeem Sahu Khan made orders as follows;

a) That the Orders granted by the Resident Magistrate Mr. Sumudu Premachandra on 9th day of December, 2010 is hereby stayed.

2. That this matter is set for mention on 7th February, 2011.
   

12] On 15th February 2011 matter was argued before this court, both parties were given to file their written submissions on 22-03-2011 which I was sick. Again it was called on 17-05-2011 and unfortunately I was on leave. This file was away from my eyesight till 19th May 2011. On that day Senior Court Officer was advised to check whether counsels for the parties have filed their submission. That they confirmed. I now deal with my Ruling.

The Defendant's Case

13] The Defendant's application to dissolve the injunctive orders as granted on 9th December 2010 is based on the following grounds:

(i) Material non disclosure;

(ii) Abuse of process;

(iii) Wrongly party being sued; and

(iv) Improper jurisdiction to seek and receive orders.

14] These grounds were supported by the Affidavit of Mr. Tauz Khan is relied on documents TK 1 to TK 3.

15] I have carefully considered the facts and documents which were tendered to me by the parties.

Law on Injunctions

16] Basic legal principles for granting interlocutory injunctions are set out in American Cyanamid Co. V. Ethicon Ltd [1975] UKHL 1; [1975] AC 396; that is;

A) The Plaintiff must establish that there is a serious question to be tried.

B) Are damaged an adequate remedy? And

C) If the answer to (ii) is in the negative then where does the Balance of convenience lies?

17] In Whittaker v National Bank of Fiji Ltd [2009] FJHC 275; HBC155.2009l (9 December 2009), Sosefo J said:

"The Court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. So unless the material available to the Court at the hearing of the application for an interlocutory injunction fails to disclose that the Plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought".

18] In American Cyanamid Co. V. Ethicon (supra) Lord Diplock Articulates;

"In view of the fact that there are serious questions to be tried upon which the available evidence is incomplete, conflicting and untested, to express an opinion now as to the prospects of success of either party would only be embarrassing to the judge who will have eventually to try the case"

19] In Natural Waters of Viti Limited v Crystal Clear Mineral Water (Fiji) Limited (unreported Civil Appeal No. 11 and 11A of 2004 delivered 26 November 2004), Fiji Court of Appeal has indicated that the principles set out in American Cyanamid case are appropriate test to be applied in law of injunctions.

Determination

a) Material non disclosure and Abuse of process and serious case to be tried?

20] In line with the above principles I now analyzed the facts before me. The defendant argues that the Plaintiff in this case guilty of Material non disclosure and Abuse of process. I now address these issues along with whether the Plaintiff has a serious case to be tried. The Defendant said that the Plaintiff did not mention that there is a case pending in this court (in Court NO: 2) for same subject matter. This case is 29/2009. The Defendant has submitted that part of those Proceedings as TK1. I had an opportunity to go through this case. It was struck out non appearance of the Plaintiff. In 29/2009 case, the Plaintiff is the Defendant Safeway Electronics of this case. The Defendant of that case is the Plaintiff of this Case namely Nasinu Town Council. Though parties are same but they have prayed difference reliefs from this court for their respective claims. Thus, there is no duplicity in this matter and I cannot hold that this case is similar to Civil Case No 29/2009. But this case was reinstated subject to Cost as Case record indicates. This case was emanates from the ex parte notice of motion of the Defendant of this case. On 30th April 2009 in 29/2009 Civil Case, initially, following Injunctive Orders were made by my predecessor Her Worship Madam Alofa Seruvatu.

1. That the Defendant restrained from entering the property belonging to the Plaintiff.

2. That the Defendant restrained from any manner, shape or form in the business activities of the Plaintiff.

3. That the Defendant restrained from interfering with the Plaintiff's quite enjoyment of the property.

4. That the Defendant restrained from approaching within 100 metres of the premises of the Plaintiff.

5. That the Defendant restrained from imposing any further restrictions on the business operations of the Plaintiff.

21] After hearing of both parties, my predecessor, Her Worship Madam Alofa Seruvatu made her decision on 26th March 2010. In her decision, she made following observation which is vital to consider who is in abuse of process. In that case Counsel for the Plaintiff filed another Ex Parte Notice of Motion in the Nasinu Magistrates Court dated the 2nd March 2010 seeking Orders that all proceedings by stayed until the determination of the contempt application before the High Court in Civil Action No. 01 of 2010 and that the Interim Orders of 30/4/09 remain in force until such time as the contempt proceedings in the High Court were determined. Her Worship noted;

"Notwithstanding that every person is entitled to their day in Court and that Counsel would attend to their high-paying clients cases with zeal and efficiency, a careful scrutiny however of the actions of the Plaintiff in the Court's view was tantamount to an abuse of process. There was, it seemed a somewhat frantic attempt on the part of Counsel for the Plaintiff to perhaps thwart or delay the hearing of the application for dissolution of the said Interim Orders." (Para 19)

"On preliminary issue no. (iii) the Court confirms that there was a criminal case wherein the Plaintiff was charged for carrying on illegal business activities. The Court however acquitted the Plaintiff as the case was subsequently withdrawn. The Court wishes to state that its acquittal of the Plaintiff is not conclusive evidence that the accused is innocent or is absolved of any criminal liability as the matter did not go to trial to determine the accused's innocence or otherwise in that case."

"That it is clear that the Plaintiff had not renewed its licenses for the years 2009 and 2010 for the business activities which had been approved by the Defendant."

"In the present case before me, I am satisfied on the balance of probabilities that during the ex-parte application made by the Plaintiff's lawyer that important and relevant material facts pertaining to the Plaintiff's case were not disclosed to the Court."

"The Plaintiff lawyer did not disclose to the Court that the Plaintiff did not have a current licence to carry on with its business activities. That the business licences tendered in Court were only up to the year 2008."

"The Plaintiff lawyer did make mention of the LPG Gas Unit but did not disclose to the Court that the Plaintiff was operating the said unit contrary to his special licence provisions and that the Director of Town and Country Planning had in fact refused the Plaintiff's application to install and operate an LPG Dispensing Unit." (In fact in this case the Defendant has mentioned it uses for company's personal affairs)

"This non-disclosure is in the Court's view of serious matter of concern as it begs the glaring question as to whether or not Counsel for the Plaintiff had deliberately or inadvertently misled the Court so as to portray a picture that his client the Plaintiff had a bona-fide case of injustice and prejudice meted out to him by the Defendant hence his application for Interim Orders.

"Therefore, in considering the matter before the Court 1, hold that the Plaintiff company has not operated his business with licences for the past 2 years in 2009 and 2010. For a reputable company such as Safeway Electronics Limited it is regrettable that it should continue some of its business operations without the relevant licences and is in my view a blatant disregard and a clear of flouting the laws of Fiji.

"It is also a fundamental rule that the Court will grant an injunction only to support a legal right. I refer to the case of Ormrod J. in Montgomery v Montgomery 1965 at p 46 which states that where the Plaintiff has no legal right recognizable by the Courts, there is no power to grant him an interlocutory injunction."

22] The court made following Orders in 29/2009 against the Defendant of this case.

1. The Interim Orders granted on 30th April 2010, should be and is hereby
2. discharged forthwith; and
   

b) That the Plaintiff's application for the Interim Orders to continue against the Defendant should be and is hereby dismissed with costs in the sum of $1,000.00.

23] It is plainly seen that on above observations the Defendant is in abuse of process and material non disclosure. I am fully agreement with my sister Magistrate Madam Alofa Seruvatu's findings.

24] Further in "IK 7" (Forum-Illegal Garage (Minutes 23-07-2010) indicates that a question was raised about what is the Council doing about the Safeway Electronic in LBE. Reason because they have a workshop, taxi base and repairing of vehicles, in this affecting the surrounding neighbors. It was decided the Special Administrator advised that the Council have filed a case against Tauz Khan and is presently with the Court and suggested that no comment should be asked regarding Mr. Tauz Khan.

25] According to "IK 8" it is clear following Recommendations was given to the Plaintiff in relation to illegal operation of Safeway Electronics, the Defendant Company by the Director of Health Environment.

1. All decisions for Waste Disposal Permit to await decisions and recommendations of the Senior Managers of the Nasinu Town Council, Department of Local Government and the Ministry of Environment;
   
2. The Waste Disposal Permit will be restricted to those areas of operators approved by the abovementioned Managers;
   

100. As is, the facility should not carry out works for operations of the Liquid Petroleum Gas Station and mechanical works as the potential risks points are associated with these activities for such an area.
     

26] I draw my mind to the "IK 9 and "IK10". It proves in 1998 in cases namely CRIMINAL CASE NO. 35 OF 1998 AND CRIMINAL CASE NO. 36 OF 1998, STATE vs TAUZ KHAN s/o ABDUL KHAN. The Defendant Mr. Khan was fined $500.00 for both cases by the Court and ordered to "terminate the operation of his taxi business forthwith" and also the "cease all his illegal operation from the site forthwith". But it seems to me that Mr. Khan, the Defendant paid the fines, but in contempt of the Court's Rulings, he has continued to carry on with his illegal activities. The residents continue to suffer from noises, fumes from motor exhaust, spray paint, oil spills, and a potential health hazard from the tons of old junk stacked up near their homes.

27] In the light of the above observation that I hold serious case to be tried. It should be noted that the defendant is trying their level best to prolong the proceedings by abuse of court process. As I early mention it proves by their state of affairs. But the defendant claims that the Plaintiff is in abuse of process. But I lament, I have to say other way around that is the defendant is in abuse of process.

28] I now deal with material non disclosure. It is true that the plaintiff had failed to aver the earlier case 29/2002009. But As I note the relief of that case is different from this and therefore it is need not entangle with this case. Does still this non disclosure vitiate the application of the Plaintiff? I must say the disclosure must be material and by doing that the Plaintiff should get unlawful advantage from this proceeding. Yet, I note court have the discretion to give second chance to the non disclosing party. In Brink's-MAT Ltd v Elcombe and others [1988] 3 All ER 188 Ralph Gibson LJ determined;

"Whether the fact not disclosed is sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application...

Finally it is not for every omission that the injunction will be automatically discharged... the court has a discretion, not withstanding proof of material non-disclosure which justifies or requires the immediate discharge of ex parte order, nevertheless to continue the order, or to make a new order on terms."

29] Same case Balcombe LJ pointed out (Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350 at page 1358) this rule must not be allowed itself to become an instrument of injustice. In every case the court retains a discretion to continue or to grant interlocutory relief even if there has been non-disclosure or worse. In deciding how that discretion should be exercised the court will have regard to all the circumstances of the case, including the degree and extent of the culpability with regard to the non-disclosure or misrepresentation:

30] I therefore hold that non disclosure did not make any harm to this case and it is should not entangle with this case. Thus, I suppress that objection of the Defendant.

b) An undertaking to pay damages and Are damaged an adequate remedy?

31] It is patent that the Plaintiff has not made any assertion an undertaking to pay damages in this action. Will this vitiate the Plaintiff's Application? I first consider law on this.

32] In National Australia Bank Limited & others v. Bon Brewing holdings Limited & others (1990) 169 CLR 271 court held;
"that the ex parte order should not have been made without an undertaking as to damages being offered or required".

33] In Air Pacific Limited and Others v Air Fiji Limited (unreported Civil Appeal No. 66 of 2006 delivered 10 November 2006), the Court of Appeal re-iterated the requirement in regard to the undertaking to pay damages stating that:

"As an important point of practice we wish to repeat however that where a party gives an undertaking to pay damages, there must be adequate information to allow an assessment of the worth of the undertaking".

34] In unreported case Satya Nand v. Rajendra Prasad and other Civil Action HBC 277 of 2010 dated 21st February 2011, His Lordship Justice Calanchini held

"this consideration is to ask whether damages would be an adequate remedy for the plaintiff. If the damages would be adequate remedy and the defendant was in a financial position to pay them, then an interlocutory injunction would not normally be granted, regardless of the apparent strength of the Plaintiff's Case"

35] In Natural Waters of Viti Limited v Crystal Clear Mineral Water (Fiji) Limited (unreported Civil Appeal No. 11 and 11A of 2004 delivered 26 November 2004) the Fiji Court of Appeal stated that applicants for injunctive relief must place sufficient material before the Court to fortify the undertaking as to damages. The Court held that applicants for interim injunctions who offer an undertaking as to damages should always proffer sufficient evidence of their financial position.

36] This principle was repeated in Honeymoon Islands (Fiji) Ltd v. Follies International Ltd (Unreported Civil appeal No. 63 of 2007 delivered on 4th July 2008). As these cases indicated there should be an undertaking as to damages and it is the normal practice of law on Injunctions. Can the court bypass this practice?

37] The undertaking in damages was invented in Smith v Day (1882) 21 Ch D 421. The rationale of the undertaking is to protect the Defendant, should the Defendant suffer loss by reason of the grant of the Injunction, if it appears finally that the Plaintiff was not entitled to obtain it. The insistence upon the giving of an undertaking is an important means of preventing injustice from being done by the court, when it makes an order at an interlocutory stage, before the rights of the parties have been finally determined.

38] I wish to address this matter on two paths. Firstly, the facts gathered from the exhibits of both parties, it is apparent according to the facts before me that the Plaintiff, Nasinu Town Council has legal right to sue the Defendant. The Defendant has no business licenses after 2008 (gathered from IK 2 to IK 5). Therefore his ancillary businesses are illegal and he cannot seek damages for interruption of illegal business. Thus question of undertaking to damages does not arise. In that sense, the Plaintiff's omission is excusable. Secondly, it is patent that The Plaintiff is a local government body has sufficient means to pay the damages. The proofs of damages are to be adduced if the source of income is unclear or unstable. But in this case it is apparent that the Plaintiff has means to pay. I think law of Injunctions to be deviated at juncture without hard and fast rule.

39] Injunction is an equitable remedy Courts have discretion to dispense with the requirement of giving an appropriate undertaking. The courts have however, only in exceptional cases exempted a claimant seeking an interlocutory injunction from this requirement.

40] In Allen v Jambo Holdings Ltd (1980) 2 All ER 502, [1980] 1 WLR 1252 at 1257A. Lord Denning MR considered that the predicament of a Plaintiff who could not give an undertaking in damages. It was a freezing order. Freezing orders are of course more commonly found in commercial cases, but one example of an order being made in a personal injury case is in this case. This case was a fatal accident case where the Claimant's husband was struck and killed by the propeller of an aero plane owned by a Nigerian company. His widow successfully obtained a freezing injunction to stop the aero plane from leaving the United Kingdom. The Nigerian company had no other assets within the jurisdiction. One of the issues that came up in the case was the fact that the widow was legally aided and therefore she could not give an undertaking as to damages. Lord Denning MR observed;

"..It may be that the owners of the aircraft are wholly liable, or it may be that (the Deceased) was wholly liable; or it may be half and half. All that can be said is that the widow and her children have a good, arguable case for claiming damages on the ground that it was at least in part of the pilot. That is sufficient"

"I do not see why a poor plaintiff should be denied a Mareva injunction just becae i he is poor, whereas a rich plaintiff would get it." (Emphasis is mine)

41] English courts consiion os issue is the plight of a claimant, who is unable to give an undertaking in dama damages, ges, provided of course that he has a strong case, as otherwise poverty would be a legal privilege. An exception is granted in the case of interlocutory injunctions by F.Hoffman-La Roche & Co. A.G. and others v Secretary of State for Trading and Industry [1975] AC 295, Kirklees M.B.C v Wickes Building Supplies Ltd [1993] AC 227 and Director General v Tobyward Ltd [1989] 2 ALL ER 266. This principle followed in Supreme Court of Australia in Szentessy v Woo Ran (1985) 64 ACTR 98.

42] Therefore, non undertaking to pay damages would not negate this application and Court can dispense with.

c) Wrongly party being sued

43] The Defendants other objection is that he says that wrong party being sued. I note in the defendant's affidavit he says that he is the Managing Director of the Company and he is duly authorized to make this Affidavit. It does mean that he represents the Safeway Electronics Company. It shows the Safeway Electronics has secretly step into the shoes of the Defendant. The entity of the Safeway Electronics is not known to this court. But the previous case 29/2009 indicates that Safeway Electronics is juristic person. But it is obvious from the exhibited document that the Defendant is the Managing Director of Safeway Electronics. Thus it is not wrong party added to this case some more parties to be added as Defendant. Managing Director is the chief Officer of the Company and by issuing Injunction to him illegal operation could be terminated. I note the Amendments to the pleading can be done at anytime to resolve the real controversy between the parties. Thus Safeway Electronics could be added as a party later and therefore no sinister had been done to the Defendant.

44] I note in this case several omission have been done by the Plaintiff it led to court to do extensive review to overcome injustice. In Tildesley v. Harper ([1878] UKLawRpCh 284; 1876) 10 Ch.D. 393, pp 396-397 where Bramwell L.J. said;

"My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise. However negligent or careless may have been the first omission, and however and late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side could be compensated by costs." (Emphasis is mine)

45] It is further elaborated in Cropper v Smith ([1884] UKLawRpCh 91; 1884) 26 Ch.D. 700 at p 710 Bowen L.J. said;

"Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases .........I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for sake of discipline, but for the sake of deciding matter in controversy, and I do not regard such amendment as a matter of favour or of grace" ( Emphasis is mine)

46] There are some procedural omissions of this case. But under the Section 27(2) in the Magistrates Court Act Cap 14, this court is empowered to grant relief and this under inherent power of the court. It provides

"A magistrate in the exercise of the jurisdiction vested in him by this Act shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies or relief whatsoever, interlocutory or final, as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim or defence properly brought forward by them respectively, or which shall appear in such cause or matter; so that as far as possible all matters in controversy between the said parties respectively may be completely and finally determined and all multiplicity of legal proceedings concerning any of such matters avoided." (Emphasis is mine)

47] Thus it is obvious that the wrong party had not been sued the real owner and the Managing Director of the Company is sued by the Plaintiff. I hold there is no miscarriage of Justice later it could be rectified.

d) Improper jurisdiction to seek and receive orders

48] The Defendant argues that proceedings of this nature ought to be tried in the criminal jurisdiction by way of summons. He says that no evidence before the Court that the Defendants/s has been sued in criminal court. Is this ousted the civil jurisdiction of this court. It is to be note this court has plenary jurisdiction to try both and civil cases. I cannot see any impediment to try this case in my civil jurisdiction. The Defendant's contention here is the Prosecution should file criminal cases under the Local Government Act (LGA) by way of summons under the Criminal Procedure Code (CPC) (as was then applicable) and it is referred to a Form 5 Summons under Section 81 of the now repealed CPC. The Defendant relied on recent case Suva City Council v Chandra [2010) FJMC 153: Criminal Case 38.2010 (12 May 2010). I draw my attention to that case. In that case her Worship Madam Kaweendra Nanakkakara considered the question of issuing summons under form 5 of repealed Criminal Procedure Code after enforcement of new Criminal Procedure Decree 2009. The crux of that case bears no relevancy to this case. Thus, I disregard it.

49] In this matter it is noteworthy to say that the accused was charged for criminal offence in 1998 and he was ordered to stop illegal operations. Had the accused stopped these illegal operations? Lamentably, it seems to me the operations are still persisting. Thereby on the face of the record, one can say that the accused is committing contempt of court. Thus the Plaintiff can opt to file cases under civil law for preventive measures and under criminal law for punitive measures.

e) Balance of convenience

50] Normally, Court looks Balance of Convenience if damages are not an adequate remedy to compensate the Defendant and damages cannot be quantified. As I mentioned earlier, it is clear that the Defendant not entitled to get damages from his illegal operations. Thus issue of damages does not lie. This court is mindful that this matter has not been tested on oaths but tendered documents categorically induce to reach a conclusion that these operations are illegal because the Defendant did not say anything about it and did not produce any valid licences for these operations. If this court assumed that balance of convenience to be considered then where does the Balance of convenience lie?

51] The Defendant is the Managing Director of one of leading Company in Fiji. Court accepts Company has a right to engage with lawful business and earn profit and wealth. But it should be according to the laws, regulation and rules of Fiji Islands. Then the Company's right of lawful business is ceased if it engaged with illegal business. In this matter the 20 complainant say that they have suffered nearly 20 years. The Company says that he has 85 workers to be fed. Then where does the balance lie?

52] The preamble of Environment Management Act of No: 01 of 2005 says that it is enacted "FOR THE PROTECTION OF THE NATURAL RESOURCES AND FOR THE CONTROL AND MANAGEMENT OF DEVELOPMENTS, WASTE MANAGEMENT AND POLLUTION CONTROL AND FOR THE ESTABLISHMENT OF A NATIONAL ENVIRONMENT COUNCIL AND FOR RELATED MATTERS". The crux of this case is involved with environmental issues. The issue of waste pollution as witnessed by the Nasinu Town Council's Health Inspector, the Director of Environment and the 20 complainant (residents) neighbors. It can neither be distinguished nor disputed. The expert evidence of the Health Inspector and the pollution, toxicity and proximity of danger was confirmed by the Director of Environment.

53] The Section 35 of the Environment Management Act states that no Company or Industrial business shall:

(a) Discharge any waste pollution into the environment;

(b) Handle, store, process any waste pollution or hazardous substance; and

(c) Engage in any activity that may have an adverse impact on human health or the environment.

54] The major issue of concern is the suffering and the complaints of the residential neighbors. Do these neighbours have any rights? Human Rights are not a new phenomenon and in I note Every Man has unalienable Rights, which among these are Life, Liberty and the pursuit of Happiness is most important and valuable right. In US declaration for Independence, adopted in congress 04th July 1776

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, which among these are life, liberty and the pursuit of happiness".

55] The acts of the Defendant have long term effects to their health, thus their right to life, safety and well being are indirectly hampered by the action of the Defendant. They said there are noise pollution, water pollution and spreading of diseases by mosquitoes. These alleged acts of the Defendant will definitely be disturbed their right to pursuit happiness.

56] Further I note this is matter for sustainable development. We do not own this soil or this world; it is borrowed by our future generations. Our ancestors protected the environment and saved the world for us. But, we now in the name of industrial development blatantly ignored these values. The state's main organs are Executive, Legislation and the Judiciary. Thus, the judiciary cannot lightly take these matters. I will be failing my duties if I take this matter lightly. There are technical errors in this application, but those technicalities should not stand the path of justice. If courts merely act on rules and regulations then there need not be human judge to preside over cases. Every rules and procedures can be fed to a computer and computer would give the judgements while considering merits according to the technicalities.

57] I now draw my attention to the new era of law. That is sustainable development. Considering and addressing several conventions for environment and sustainable development issues Sri Lankan Supreme Court in Bulankulama and Others u. Secretary, Ministry of Industrial Development and Others [2000] 3 Sri Lanka Law Reports 243 held;

"Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature (Principle 1, Rio De Janeiro Declaration). In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. (Principle 4, Rio De Janeiro Declaration). In my view the proposed agreement must be considered in the light of the foregoing principles"

"International standard setting instruments have clearly recognized the principle of inter-generational equity. It has been stated that humankind bears a solemn responsibility to protect and improve the environment for present and future generations. (Principle 1, Stockholm Declaration). The natural resources of the earth including the air, water, land flora and fauna must be safeguarded for the benefit of present and future generations. (Principle 2, Stockholm Declaration). The non renewable resources of the earth must be employed in such a way as to guard against their future exhaustion and to ensure that benefits from such employment are shared by all humankind. (Principle 5, Stockholm Declaration). The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. (Principle 3, Rio De Janeiro Declaration). The inter-generational principle in my view, should be regarded as axiomatic in the decision" making process in relation to matters concerning the natural resources and the environment" ( Supra pages 277) ( Emphasis is mine)

58] International Court of Justice, the Vice-President of the Court, Judge C.G. Weeramantry, in Gaboikovo - Nagimaros Project (Hungary/Slovakia - The Danube Case 1997 General list N 92 25" September 1997) considered the Development. From History he quoted;

"Just as development was the aim of this system, it was accompanied by a systematic philosophy of conservation dating back to at least the third century B.C. The ancient chronicles record that when the King (DevanampiyaTissa, 247-207 B.C.) was on a hunting trip (around 223 B.C.), the Arahat Mahinda, son of the Emperor Asoka of India, preached to him a sermon which converted the King. Here are excerpts from that sermon; "oh! Great King, the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou are only the guardian of it." (Emphasis is mine- cited in Bulankulama case (supra) in page 254/255)

59] In Bulankulama case (Supra) Amerasinghe J, quoting David Koten, the founder President of the People Centred Development Forum, once observed;

"The Capitalist economy . . . . . . has a potentially fatal ignorance of two subjects. One is the nature of money. The other is the nature of life. This ignorance leads us to trade away life for money, which is a bad bargain indeed. . . . . . Money is a number. Real wealth is food, fertile land, buildings or other things that sustain us . . . . . ." (Emphasis is mine)

60] When the environmental issue is involved in a case, courts consider these issues under "public trust doctrine" which is invented in the decision of Illinois Central R. Co v. Illinois [1892] USSC 229; 146 U.S. 387 at 452.It has to be considered on a case by case basis. In that event, Court acts as a guardian of the society.

61] This case is matter for public important. In public law cases generally, where the availability of damages as compensation for an adverse decision on interim relief is rarely material, the court, when considering the balance of convenience between the parties, will look at the wider public interest. In R v Secretary of State for Transport, ex parte Factortame Limited (No. 2) (1990) UKHL 13; [1991] A.C. 603 at 673 Lord Goff of Chieveley stated:

"Turning then to the balance of convenience, it is necessary in cases in which a party is a public authority performing duties to the public that "one must look at the balance of convenience more widely, and take into account the interests of the public in general to whom these duties are owed:" see Smith v. Inner London Education Authority [1978] 1 All E.R. 411, 422, per Browne L.J., and see also Sierbien v. Westminster City Council (1987) 86 L.G.R. 431mph(Emphasis is mine)

62] In Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment of Belize [2003] .R. 2839 at 2850 Lord Walker in giving judgment for for the Privy Council stated:

"Both sides rightly submitted that (because the range of public law cases is so wide) the court has a wide discretion to take the course which seems most likely to produce a just result (or to put the matter less ambitiously, to minimise the risk of an unjust result).

63] I therefore distinguish this case from normal injunction case as it related to the nature, society and matter of public importance. Thus Balance of convenience lies on the society and not on the Defendant. Had the Defendant attempted to get those licensees fulfilling relevant requirements to issue licenses; if he really concerns of his 85 workers? Had the workers pushed their authority to legalize these illegal operations? There is no bar and he could legalize these operations by obtaining the proper licenses till then he should stop the operations. Thus I hold that the residents who live in the vicinity deserve to live in a pollution free, safe and healthy environment. Above common law decisions are persuasive to this court to reach fair conclusion.

64] In considering above facts before me. In line with the above case laws I am of the view that injunctive orders as granted on 09th December 2010 (signed on 10-12-2010) can be sustained until the conclusion of this case. Therefore, I make following orders.

i) Injunctive orders granted on 09th December 2010 on the Plaintiff's Application is hereby confirmed.

ii) Therefore, the Defendant to cease operation of Illegal Mechanical Garage, LPG Service Station and Taxi Business.

iii) The Defendant to clear all debris, vehicle parts, equipments and materials used for vehicle maintenance and are to be removed from the premises.

iv) The Defendant to clean the drainage system and system should be free from oil and noxious materials.

v) The Defendant to operate with the business for which he was given an approval from relevant Authority.

vi) The orders were granted by the His Worship Resident Magistrate Mr. M.N. Sahu Knan to stay these injunctive reliefs is hereby vacated.

vii) The Defendant to pay cost of this application $1000 (is summarily assessed)

viii) The Defendant is ordered to file Statement of Defence for the substantive case within 14days and The Plaintiff should file the reply within 7 days thereafter (If any).

On 27th July 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate