Gaffar v Ibrahim & Anor [1979] FJSC 49; Civil Action 136 of 1979 (6 July 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Civil Jurisdiction

Action No. 136 of 1979

BETWEEN

ABDUL GAFFAR
s/o Hausil
Plaintiff

AND

IBRAHIM
s/o Khairati
& ANOR
Defendants

RULING

In this application the plaintiff seeks an injunction, pending final decision in the case, prohibiting the defendants from selling, transferring, assigning, mortgaging or in any way dealing with the land in question, and an order, again pending final determination of the case, that all proceeds from the sale of cane from the land in question, be held by the Fiji Sugar Corporation.

There was a preliminary objection raised by defendants' counsel in which he argued that the whole proceedings were void ab initio because, contrary to the requirements of section 13(1) of the Crown Lands Ordinance, the consent of the Director of Lands has not been obtained prior to the invitation of the action - the land in question being unquestionably a "protected lease".

That preliminary point can and has been quite simply answered by reference to the case of Mohammed Rasul v Jeet Singh and Hazana Singh Vol.10 F.L.R. 16. So that any order I make may be made subject to the consent of the Director of Lands being obtained, with liberty to apply for further orders should that consent not be granted.

However the application can be objected to on other grounds, although surprisingly it was not. The summons refers only to an order in respect of proceeds of cane now held or payable in the future by F.S.C. But the supporting affidavit by the plaintiff does not mention those proceeds and merely asks for an injunction that the defendants do not create any charge, assignment or mortgage on the land in question or the crop.

But the order sought is resisted and the decision of the court would of necessity be based on the balance of convenience between the parties and whether any loss can be met by an award of damages.

On the balance of convenience there is very little to choose between the parties; and in fact neither affidavit is of much assistance to the court. If anything the affidavit of the defendants presents the better case. In view of this and the anomalies shown in the plaintiff's application I decline to make an order sought.

Since neither side has been entirely successful in today's proceedings I think the fairest order as to costs should be that each party bear its own costs of the application.

(Sgd.) G.O.L. Dyke
JUDGE

LAUTOKA,
6th July, 1979.

Messrs. G.P. Shankar & Co., for the Plaintiff
Messrs. Koya & Co., for the Defendants