Sulani Trading Ltd v Tuvalu Government's Chancery Taskforce [2023] TVHC 1; Civil Case 1 of 2023 (21 March 2023)

IN THE HIGH COURT OF TUVALU 2023

CIVIL CASE No.1/23

BETWEEN
SULANI TRADING LTD
PLAINTIFF

AND
TUVALU GOVERNMENT's CHANCERY TASKFORCE
FIRST DEFENDANT

LANDS DEPARTMENT
SECOND DEFENDANT

Before Hon Judge Sir John Muria
Hearing 20^th March 2023

Ms L Kofe for Plaintiff
Mr V Liai for Defendants

JUDGEMENT

Muria J: This is an inter partes hearing to determine whether the ex parte injunction issued on 4^th February 2023 against the defendants should continue or be discharged. The defendants have also filed an application to discharge the ex parte injunction order.

Brief background

2. The plaintiff is a registered company and has a branch operating on a piece of land, which is a Government leased land, at Kavatoetoe. The plaintiff has been occupying the said piece of land for a little over 10 years with permission from the Land's Department. This was about 2010. There was some discussion of a lease arrangement between the plaintiff and the Government of Tuvalu, but no lease agreement has ever been made between the plaintiff and the Government over the land in question.

3. Since there has never been a lease agreement between the parties, the plaintiff has never paid any rent for its occupation of the said land. There has not been any interference with the plaintiff's business on the said land throughout the period of its operation at Kavatoetoe.

4. It was brought to the plaintiff's attention in mid 2021 that the land in question at Kavatoetoe would be given to the Australian High Commission in Tuvalu. It was on 23^rd March 2022 that the first formal meeting between the Government's representatives and the plaintiff was held to discuss the issues of relocation and compensation to the plaintiff.

5. On 19^th October 2022, the defendants wrote to the plaintiff notifying it to vacate the land. The plaintiff did not vacate the land. On 27^th January 2023, the Government's again wrote to the plaintiff, notifying it to vacate the land by the 4th February 2023. The plaintiff did not vacate the land. Instead the plaintiff sought and was granted an ex parte injunction order on 4^th February 2023 against the defendants, restraining the defendants from taking any step to evict the plaintiff from the land. The plaintiff also filed a writ against the defendants claiming anticipatory loss and damages.

6. The ex parte order was returnable on 27^th February 2023. The Court is now to determine whether the ex parte restraining order should continue or be discharged.

Issue

7. The only issue to be determined here is whether the ex parte order should be allowed to continue or be discharged.

The Law

8. It is trite law that a permanent injunction to restrain a party from evicting a person from the disputed land or property, may be granted against a party only where the person seeking the relief is in lawful possession and legally entitled to be in possession of the property concerned, and not to dispossess him except by due process of law.

9. The burden is on the party who is seeking the relief to establish his lawful title to the land or property so as not to be dispossessed. If he fails to establish his lawful claim to the land or property, the ex parte order cannot be made permanent and ought to be discharged.

The Parties' arguments and disposition

10. The plaintiff's argument is basically that the ex parte injunction order should continue until the plaintiff's substantive case is heard by the Court and the question of adequate compensation to the plaintiff is determined by the Court. Fortunately, I do not need to deal with this point at length since the plaintiff has voluntarily agreed to vacate the land in question and that it has agreed also that the issue of adequate compensation is a matter to be determined at the trial in the substantive claim. There is clearly no serious issue to be tried under the American Cyanamid principles, to justify the continuation of the ex parte injunction.

11. I feel the position taken by the plaintiff to voluntarily vacate the land in question is proper. The plaintiff does not have any lease agreement over the piece land in question at Kavatoetoe. Paragraph 12 of the Affidavit of Polau Kofe confirmed that he did not recall signing any lease agreement over the land but that he had good faith that his settlement on the piece of land at Kavatoetoe was not illegal since he was given permission to operate his business on the land by the authorised officer of the lands Department.

12. On Kofe's admission the plaintiff clearly does not have any legal title over the land, whether by way of lease or otherwise. There has never been any payment made by the plaintiff to the defendants for the use of the land. To maintain a permanent injunction against the defendants the plaintiff must establish its title to the land in question. At best the plaintiff is a mere gratuitous licensee, which does not confer on it any title over the property in question. Consequently it will not be proper to allow the ex parte injunction order to continue in force.

13. As to the issue of fair and adequate compensation raised by the plaintiff, that issue is the central dispute between the patties and the subject of the plaintiff's claim in the substantive action filed by the plaintiff. It will have to be properly pleaded, established and determined by the Court through the normal civil litigation procedure. It would not be proper to pray in aid, by way of an injunction, while the issue of compensation is pending before the Court waiting to be determined.

14. The ex parte injunction order issued by the Court against the defendant on the 4^th February 2023 cannot continue and it is hereby discharged.

15. On the issue of eviction, the defendants are at liberty to apply for an eviction order, now that the ex parte injunction order has been discharged.

16. There is an application by the defendants before the Court to strike out the plaintiff's claim and for an eviction order. In view of the willingness of the plaintiff to voluntarily vacate the land concerned at Kavatoetoe the consideration of the defendants application for eviction will be adjourned for 21 days. This is to allow time for the plaintiff to voluntarily vacate the land. The 21 days period lapses on 11^th April 2023. However, in view of Easter observance on the preceding days, the Court will list the defendants' application for an eviction order on 12^th April 2023 for hearing should the plaintiff fails to vacate the land by the 11^th April 2023.

17. The orders of the Court are therefore:

1.The ex parte injunction order dated 4^th February 2023 is discharged.
2. The plaintiff to voluntarily vacate the land where its Kavatoetoe Branch is situated by 11^th April 2023.
3. The defendants' application for an eviction order against the plaintiff is listed for 12^th April 2023 should the plaintiff fails to voluntarily vacate the land by the 11th April 2023.
4. The defendants' applications for striking out the plaintiff's claim is fixed for mention on 17^th April 2023.
5. Each party to bear its own costs of this application.

Dated this 21^st day of March 2023.

Sir John Muria
Judge
27/3/23