Nivis Motors & Machinery Company Ltd v Attorney General of Fiji [2008] FJSC 2; CBV0007.2006S (17 July 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO.CBV0007 OF 2006S
(Fiji Court of Appeal No.ABU0070 of2006S)

BETWEEN:

NIVIS MOTORS & MACHINERY COMPANY LTD
Petitioner

AND:

ATTORNEY-GENERAL OF FIJI
Respondent

Coram: The Hon. Justice Keith Mason, Judge of the Supreme Court
The Hon. Justice Kenneth Handley, Judge of the Supreme Court
The Hon. Justice Ronald Sackville, Judge of the Supreme Court

Hearing : Thursday, 17th July 2008, Suva

Counsel:
Mr. John Katz, QC ] for the Petitioner

Mr. L. Daunivalu ] for the Respondent
Mr. K.Y. Singh ]

Date of Judgment: Thursday, 17th July 2008, Suva

JUDGMENT OF THE COURT

[1] We have concluded that this petition does not raise issues for determination that satisfy the criteria in s7(3) of the Supreme Court Act. We also think it unlikely that the determination of the appeal would result in any different conclusion than that reached by the majority of the Court of Appeal or the disturbance of their essential reasoning. There is also a real issue about the utility of the proceedings in this Court.

[2] The trial judge and the Court of Appeal were satisfied that the acquisition was necessary or expedient for public purposes, as required by s6(3) of the State Acquisition of Lands Act.

[3] In reaching this conclusion the trial judge stated that public benefit entails that the court considers the interests of the individual as well. He described the protection of interests of individual occupiers as an important aspect of the public interest as a whole. Accordingly, Jiten Singh J. embarked on a detailed consideration of the evidence of the petitioner’s traffic engineer, Mr. Apeldoorn. In doing so, his Lordship acknowledged that the thrust of the engineer’s report was to the effect that the traffic flow objectives, including safety, could be achieved by reducing the size of the roundabout and the splitter island at its Nausori end, thereby avoiding the need to take any part of the petitioner’s land.

[4] It was perfectly plain that the State’s proposal would interfere with the business interests of the petitioner and that the petitioner was unhappy to be left with monetary compensation. Jiten Singh J. acknowledged this. Indeed, he was at pains to weigh the disruption in his statement that:

"Every acquisition causes some inconvenience, some hardship or some disruption to business of an occupant. It is the extent of disruption that is important. If an acquisition is likely to cause an economic ruin or affect the entire livelihood of a person, then the public interest element must be very strong and overwhelming. In the present case, the Crown Lease 9007 is 9368 square meters. The acquisition is approximately five percent of the total area. The business would not have to relocate. It could still continue operations from the existing premises."

[5] Neither party drew the attention of the learned trial judge the provisions of s3(2) of the Act which states that an acquisition under that section must not proceed unless the necessity for it is such as to provide "reasonable justification for the causing of any resultant hardship to a person having an interest in the lands." This provision casts an evidentiary burden on the landowner to show the nature or extent of any "resultant hardship" going beyond the obvious (and generally compensable) consequences of loss of land and disruption to business.

[6] Section 3(2) imposes a mandatory condition, but it does not require the court to reject the acquisition if "resultant hardship" is established. The resuming authority’s onus is to show "reasonable justification" for causing that hardship, which is not the same as showing that the acquisition is unavoidable.

[7] In this case, the primary facts found at first instance, and the reasoning to which we have already drawn attention, did address this matter. The Court of Appeal was therefore well placed to draw the conclusion that the requirements of s3(2) were in fact satisfied.

[8] A new trial is always a great inconvenience that should be avoided unless the interests of justice require it. Here they did not.

[9] Indeed, those interests pointed clearly in the opposite direction given that the primary facts as found happened to address the issue presented by s3(2). We agree with the reasoning of the majority on this question.

[10] Beyond this, the petition seeks to reagitate factual and engineering issues that are unique to this particular acquisition and this particular petitioner.

[11] There is also a real issue as to the utility of the proceedings in this Court given that it is common ground that the road has already been widened and the petitioner’s business relocated within the boundaries of its slightly reduced land. If the petitioner has suffered hardship this will have occurred before the new trial that the petitioner seeks as its sole relief.

[12] Leave to appeal is refused and the petition is dismissed with costs.

Hon. Justice Keith Mason
Judge of the Supreme Court

Hon. Justice Kenneth Handley
Judge of the Supreme Court

Hon. Justice Ronald Sackville
Judge of the Supreme Court

Solicitors:
MC Lawyers, Suva, for the Petitioner
Attorney-General’s Chambers, Suva for the Respondent