IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 22 OF 1995

Between:

JOSAIA RADRODRO
Plaintiff

-and-

1. FIJI FORESTS INDUSTRIES
2. WAIQELE SAWMILLERS LTD.
Defendants

Mr. S. Prasad for Plaintiff
Mr. V. P. Ram for 1st Defendant
Mr. A. Sen for 2nd Defendant

JUDGMENT

This is an application for dissolution of an injunction granted in the absence of the plaintiff and his counsel, by Kepa J. on 25th November '94 restraining the plaintiff from interfering with the 1st defendant company's upgrading, maintenance, and usage of an existing 'access road' which passes through the unestablished boundaries of the plaintiff's leasehold.

The relevant chronology of dates and court orders may be summarised as follows:-

(1)	On 1.9.94 the plaintiff issued a Writ claiming amongst other things, an injunction restraining the defendant companies from trespassing onto land over which the plaintiff held an Instrument of Tenancy granted under ALTA on the 1st of December, 1989;

(2)	On the same day Pathik J. granted ex parte an interim injunction in terms of the plaintiff's application returnable on 16.9.94;

(3)	On the 9th and 15th September '94 the defendant companies through their senior officers, filed affidavits seeking the dissolution of the plaintiff's ex-parte injunction;

(4)	On 16.9.94 despite counsel's awareness of the date, the plaintiff's injunction was dissolved by Pathik J. in the absence of the plaintiff or his counsel;

(5)	On 13.10.94 the 1st defendant company in turn applied for an injunction against the plaintiff seeking to restrain him from interfering with the 1st defendant's upgrading and continued usage of the 'access road'.

(6)	On 25.11.95 despite being aware of the 1st defendant company's application, neither the plaintiff or his counsel appeared, and Kepa J. granted to the 1st defendant company an interim injunction until 16.1.95;

(7)	On 16.1.95 again in the absence of the plaintiff or his counsel, Kepa J. extended the 1st defendant company's injunction "... until the final determination of (the) case";

(8)	On 17.3.95 after several unsuccessful attempts to communicate with the plaintiff's solicitors Kepa J. transferred the case to Labasa "as all parties live there.";

(9)	On 26.4.95 the 1st defendant company sought and obtained leave to issue committal proceedings against the plaintiff for his total disregard of the Court's injunction in continuing his blockage of the 'access road';

(10)	On 22.6.95 upon the advice of counsel for the 1st defendant company "...that the road block had been lifted", the committal proceedings were stayed sine die by the Chief Justice.

(11)	The following day 23.6.95 the plaintiff sought the dissolution of the 1st defendant company's injunction granted by Kepa J. on 25.11.94 (see: (6) above)

The plaintiff's application for dissolution is opposed in an affidavit sworn by a senior manager of the 1st defendant company on 14.9.95 and was finally argued before me on 25.10.95.

At the outset, although the matter was never raised in argument, I have some misgivings in hearing an application against an injunction which has already been extended: "... till the final determination of (the) case" albeit that both initial grant and the extension were made in the absence of the plaintiff and his counsel.

Be that as it may this was the first opportunity when the Court has had to hear the matter inter partes and accordingly the plaintiff's application was entertained on its merits.

The plaintiff's claim in this case is that he holds an 'agricultural tenancy' over the land in dispute which includes a small portion over which an 'access road' being used by the 1st defendant company passes, and for which use the plaintiff has never given his consent or approval nor has the same been sought.

The 1st defendant company's claim on the other hand is that the 'access road' was formed and had been in use for some 20 odd years before the grant of the plaintiff's tenancy and was well-known to and indeed was approved by the plaintiff and his mataqali before and after he took a lease over the land. Furthermore the plaintiff's complaint was thoroughly and independently investigated by the NLTB and no action was taken upon it. In the circumstances it is submitted that the 1st defendant company's injunction should be allowed to continue as in any event the plaintiff may be easily compensated in damages.

The 2nd defendant company for its part, denies trespassing on the plaintiff's tenancy and asserts that the 'access road' does not pass through the plaintiff's land the boundaries of which have not been precisely delineated by survey.

There are in my view serious issues to be tried in this case not the least of which is, the legal effect of the 'approval letter' of 21.9.1993 which post-dates the plaintiff's tenancy, and which was co-signed by the plaintiff and expressly gives approval to the 1st defendant company "... to cross and upgrade its roading programme through his Mataqali land...",then there is also the fundamental question of whether or not there has been any actual 'trespass' upon the plaintiff's leasehold on the part of the 2nd defendant company.

I am of course mindful that a leaseholder is prima facie entitled to an injunction, even against his landlord, to prevent any unlawful trespass upon his leasehold however convenient the offending 'access route' may be to his landlord or the general public, but by the same token, where of the question to be determined by the Court includes, whether or not there is in fact a trespass, then the court is obliged to consider where the "balance of convenience" lies in the case. 

In this latter regard having considered the competing submissions, I have little hesitation in holding that the 'balance of convenience' in this case strongly favours the continuation of the existing injunction.

The application is accordingly dismissed with costs to the defendants to be taxed if not agreed.

D. V. Fatiaki
JUDGE

At Suva
28th December, 1995
HBC0022J.95B