Alim v Labalaba [2013] FJMC 280; Civil Action 150.2010 (9 April 2013)

IN THE MAGISTRATE'S COURT
AT NADI,FIJI

CIVIL ACTION N0: 150 OF 2010

BETWEEN:

MOHAMMED SALIM and OTHERS
PLAINTIFFS

AND:

ESALA LABALABA
1ST DEPENDANT,

NATIVE LAND TRUST BOARD
2ND DEFENTANT.

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,

COUNSEL: Messrs Babu Singh & Associates for the Plaintiff,
Messrs Pillai, Naidu & Associates for the 1st Dependant,
Mr. Penieli Nayare for the 2nd Defendant

Date of the Ruling: 9th of April 2013.

RULING

1. The Plaintiffs / Applicants (hereafter refers as the Plaintiffs) instituted this civil proceedings with a writ of summon seeking following order inter alia
   
   1. Special damages for return of all money paid by the plaintiffs in the sum of $15,500.00,
      
   2. General damages,
      
   3. Interest,
      
   4. A declaration that the action of the 1st defendant is unlawful/illegal,
      
   5. In any even the claim is limited to $50,000 being the jurisdiction of the magistrate's court.
      
2. The plaintiffs meanwhile filed Ex-Parte notice of motion together with an affidavit in support seeking following orders inter alia,
   
   1. An injunction against the 1st defendant and nominal 2nd defendant, their servants and or agent or whosoever from dismantling the dwelling houses of the named plaintiffs situated at lot 1 on ND 3762 land known as Vatuolewatabe, Cemetery Road, Nawaka,
      
   2. An injunction against the 1st defendant and nominal 2nd defendant, their servants and or agents or whosoever from evicting the named plaintiffs from the land known as lot 1 on ND 3762 land known as Vatuolewatabe, Cemetery Road, Nawaka,
      
3. The plaintiffs stated in the affidavit of Mr. Mohammed Salim, that the plaintiffs have entered into an agreement with the 1st defendant in respect of the abovementioned land and build houses on it. The plaintiffs further stated that they paid goodwill and monthly rental in the sum of $20 to $100 as the rental is vary from tenant to tenants. The plaintiffs claimed that sometimes in May or June 2010, the 1st defendant tried to increase the rental money and forced them to enter into new agreement if not threaten to evict them from the land.
   
4. My predecessor Learned Magistrate Mr. Naivalu granted interim injunctions in his order dated 30th of July 2010 as per the notice of motion filed by the plaintiff.
   
5. The 1st and 2nd defendants filed their affidavits in opposition and subsequently the matter was set down for the hearing. All three parties agreed to have the hearing by way of written submissions; I accordingly invited them to file their written submissions which they field accordingly. I further invited the counsels of the parties to file further submission on legal issues which also they filed accordingly.
   
6. Having considered the respective affidavits and submissions of the plaintiffs and the two defendants, I now proceed to pronounce my ruling in this matter.
   
7. The laws relating to injunction is discussed extensively in American Cyanamid v Ethicon Limited [1975] UKHL 1; (1975) A.C. 396, where Lord Diplock held that " the object of the interlocutory injunctions is to protect the plaintiff against the injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty will resolve in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty will resolve in the defendant's favour at the trial. The court must weigh one need against the other and determine where ' the balance of convenience lies".
   
8. Judge Gwen Phillips, having considered the dicta in American Cyanamid v Ethicon Limited (supra) outlined the fundamental requirements to be considered for interlocutory injunction in Koroqica v Housing Authority (2008) FJHC 295; HBC116.1999 (11 July 2008) as
   
   1. Is there a serious question to be tried?
   2. Are damagers an adequate remedy?
   3. Where does the balance of convenience lie?
      
9. Having carefully perusal of the affidavits filed by the plaintiff and the two defendants, I find that none of the parties are disputing the fact that this alleged lease agreement between the plaintiffs and the 1st defendants entered without the consent of the second defendant as it is required under the Native Land Act.
   
10. Section 12 (1) of the iTauke Land Trust Board Act stipulates that "Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act tonateeor deal with the&#16e land &#16prised in his lease or e or any part thereof, whether by sale, transfer or sublease or in any other manner wever ut thsent eټBo160; as l;as lessoressor or h or head lessor first had and obtained. Thd. The grae grantingnting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void". In view of section 12 (1) of the iTaukei Land Trust Board Act, this alleged agnt toe is null and void void hend hence the plaintiff could not seek to invoke this court jurisdiction to enforce such an agreement.
    
11. It was held in Daydream Island Ltd v Ratu Timoci Vuki and Michael Clowes & Sunsail Pty Ltd ( 2007) FJHC 14;HBC284.2005(18 May 2007) that " if making or performing a particular contract is expressly prohibited by statue, the contract is illegal unless the statue itself indicates that a prohibited contract shall nevertheless be enforceable. In the absence of any such indication, a contract the formation or performance of which is expressly prohibited by statue is illegal".
    
12. Having considered section 12 of the ITaukei Land Trust Board Act and the abovementioned judicial precedence, I am satisfied that the plaintiffs have entered into this land under an agreement which is null and void ad initio and could not legally enforceable it. Hence this court has no jurisdiction to issue an interlocutory injunction against the 1st and 2nd defendant as per prayed in the Plaintiff's notice of motion.
    
13. Further, as mentioned above, Lord Diplock stated in American Cyanamid v Ethicon Limited (Supra) that " the object of the interlocutory injunctions is to protect the plaintiff against the injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty will resolve in his favour at the trial". However, I am not satisfied that the plaintiffs' right will be violated if the court does not intervene with interlocutory injunction.
    
14. In conclusion, having considered the foregoing reasons, I refuse and dismiss the Notice of Motion of the Plaintiff and accordingly, refuse the application for injunction against the 1st and 2nd Defendant as per the Notice of Motion.
    
15. Cost is summarily determined and I order the plaintiffs to pay $150 each to the 1st and 2nd Defendant respectively.
    
16. Seven days to file notice of intention to appeal.
    

On this 9th day of April 2013.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Nadi.