Valebasoga Tropik Board Ltd v Waqamoce [2015] FJMC 115; Civil Action 06.2015 (26 August 2015)

IN THE MAGISTRATE'S COURT AT LABASA
CIVIL JURISDICTION

Civil Action No. 6 of 2015

BETWEEN:

VALEBASOGA TROPIK BOARD LIMITED
PLAINTIFF

AND:

LAISIASA WAQAMOCE
DEFENDANT

Plaintiff : Mr Sharma. S
Defendant : Mr Sen. A

Judgment : 26 August 2015

JUDGMENT

1. This is an interlocutory judgment on the Defendant's application by way of an Inter-Parte Notice of Motion filed on 1 May 2015, together with an Affidavit in Support deposed by Laisiasa Waqamoce, the Defendant.
   
2. In the Notice of Motion, the Defendant is asking for the dissolution of the following orders granted by this court on 12 March 2015;
   
   1. That the Defendant, its agents, employee, servants and contractors be restrained from extracting or harvesting the logs from the Native Lease land with estimated area of 267 acres land known as Lot 4, Mataqali Naqele Village, Korotari, Cakaudrove.
      
   2. That the Forestry department to be informed of this and forthwith suspend any Licence given to any person or body until the matter is resolved by this honourable court.
      
3. The Plaintiff has responded to the application by way of Affidavit in Opposition deposed by Muktar Ali, the Managing Director of the Plaintiff. I thank the Counsel for both the parties for complying with the direction and filed written submission. Both the Counsel by consent agreed for the Court to prepare its judgment on the written submission which I have considered in this judgment.
   
4. The test for injunction was set down in the case of American Cyanamid Co. v. Ethicon Limited [1975] UKHL 1; (1975) AC 396, that has been adopted and followed in this jurisdiction and the test are;
   
   1. Is there a serious issue to be tried?
      
   2. Is damage an adequate remedy?
      
   3. If not, where does the balance of convenience lie?
      
5. Before proceeding further, I take note and observe the structure set out by Lord Diplock's at page 407 in the Amercian Cyanamid case that it is; "....no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration. These are matters to be dealt with at the trial."
   

Is there a serious issue to be tried?

6. The Ex-parte Notice Motion with an Affidavit in Support deposed by Muktar Ali was filed together with the Writ of Summons with a Statement of Claim on 28 January 2015, by the Plaintiff. The Plaintiff further filed Amended Ex-Parte Notice of Motion on 27 February 2015.
   
7. The Plaintiff's claim is based on a written agreement of 17 December 2014. A copy of the Agreement is marked Annexure B in Mukhtar Ali's Affidavit in Support. The Agreement was only signed by the Plaintiff and the Defendant did not sign the same and deny entered into any agreement with the Plaintiff. The reason on why the Defendant did not sign the agreement and whether the agreement is enforceable or otherwise is a matter to be determined in a full trial.
   
8. The Plaintiff claim is also relying on the $3,000.00 that was paid to the Defendant by the Plaintiff on 11 December 2014. The Defendant admits received the said amount in his Affidavit in Support to the Inter Parte Notice Motion. The purpose of this payment is a matter to be determined in a full trial as according to the Defendant that was the money given to him where the Plaintiff requested him to change his contractors.
   
9. I find that there are issues to be tried and in my view the issues are not serious to warrant the continuation of the interim injunction.
   

Is damage and alternative remedy?

10. The relief sought by the Plaintiff in its prayer in the statement of claim were as follows;
    
    1. That the defendant its agents employees, servants and contractors be restrained from extracting or harvesting the logs from the Native Lease Land with estimated area of 267 acres land known as Lot 4 Mataqali Naqele village, Korotari, Cakaudrove;
       
    2. Special damages in the sum of $50,000.00;
       
    3. General damages;
       
    4. Punitive damages;
       
    5. Interest from the date of cause to the date of execution of judgment;
       
    6. Cost on full solicitor client indemnity basis; and
       
    7. Any other or such relief as this Honourable Court may deem just and expedient.
       
11. The answer to this issue is provided in the prayer itself and the answer is yes.
    
12. In this case, the granting of the interim injunction virtually brought about the final relief that the Plaintiff wanted as it had the effect of preventing the Defendant, its agents, employees, servant and contractors from extracting or harvesting the logs from the land known as Lot 4 Mataqali Naqele Village, Korotari, Cakaudrove. In Ba Town Council v Fiji Broadcasting Commission [1976] 22 FLR 91, it was held that it is not the practice of the Court to grant an interlocutory injunction which will have the practical effect of granting the sole relief claimed. Further, in Naidu v Boladuadua [2013] FJCA 5, the Court of Appeal held that since the Appellant has claimed damages in his original claim, his claim for injunctive relief or specific performance cannot succeed. These two case authorities provide and suggest that interim injunction granted on 12 March 2015, cannot continue or extended.
    

Balance of convenience

13. The balance of convenience in this case favours the Defendant. As already discussed, damage is an alternative as clearly stated in the relief sought in the Writ of Summons. The continuation of the interim injunction is not warranted as the Plaintiff can proceed with their damage proceeding. Further, the written agreement relied upon by the Plaintiff was not signed by the Defendant and the enforceable of the agreement is a matter to be determined in a full trial.
    
14. The Defendant is making an under taking in regards to the damages, if the interim injunction is dissolved. The Plaintiff is concerned on the reliability of the undertaking, but in any event this should be cured by the Plaintiff's claim for damages.
    
15. In my judgment, I make the following orders;
    
    1. The Interim Injunction issued on 12 March 2015, is set aside and dissolved with immediate effects from today;
       
    2. All other orders made and issued on 12 March 2015 relating to the injuction is set aside.
       
    3. Cost of $500.00 in favour of the Defendant to be paid by the Plaintiff.
       

Cama M. Tuberi
RESIDENT MAGISTRATE