DONATO BALEIWAI
3rd Defendant
DEMENITO WAITOLU
4th Defendant
Counsel: Mr T. Fa for Plaintiff
Mr S.V. Coutts on behalf of Mr V Mr Vuataki for Defendants
Hearing: 22nd February 2000
Judgmenh March 2000
JUDGMENT
On 19th November 1999, the Plaintiff filed writ of summons against the Defendants, claiming the Defendants as members of the land-owning
unit Mataqali Lali Leqaya had unlawfully entered his leased land, severed and consumed his fruit and vegetables, cut his fences and
chased his cattle away from the land and constructed a stockyard.
The cause of action is the tort of trespass. The relief asked for is an injunction to prevent ass and costs.
On the same day (the 19th of November) the Plaintiff filed bice of Motion and affidavit, an application for an interim injunction
to restrain the DefenDefendants from trespassing, cutting fences, taking fruits and vegetables and disturbing the Plaintiff’s cattle.
The Plaintiff also seeks a mandatory injunction for the Defendants to dismantle a stockyard constructed on the Plaintiff’s land.
The application was heard inter partes on 14th February 2000. The Defendants who appeared in person, agreed to the grant of the intinjunction
in respect of thof the alleged trespass until they could instruct counsel. An order was made accordingly and the matter adjourned
until 22nd February 2000. The Defendants filed the affidavit of Varasiko Naituku in reply to the affidavit of Onisimo Dominiko.
The facts that emerge from the affidavits filed, is that the Plaintolds a Native Lease (No. 15793) of about 96 acres made up of land
belonging to several mata mataqali. 37 acres of the land is owned by the Mataqali Leqaya - the mataqali to which the Defendants belong.
He has held the lease since 1977 and has farmed and fenced the land with loans from the Fiji Development Bank. He has been paying
his rents regularly to the Native Land Trust Board. It is clearly a well-developed farm with about one hundred head of cattle.
In 1998, the Plaintiff allowed the First Defendant (who is Turaga ni Mataqali Leqaya) to use part of the land to gain access to timberations
elsewhere on mataqaataqali land. In 1999 timber operations ceased. However the Defendants continued to enter the land, to cut the
fences and proceeded to construct a stockyard over 5 chains? on the Plaintiff’s land.
A meeting was held at Nasele Village to resolve the situation. The members of the Mataqali Leqaya then informed the Plaintiff that
they wanted the land back. It appears that a dispute has now arisen over the status of the lease. The Defendants say that the lease
is invalid because the consent of the mataqali was not obtained before the lease was issued by the Native Land Trust Board. The Plaintiff
claims that he has a valid lease which is registered and that the Defendants although they are members of the land-owning mataqali,
have no right to trespass on the land.
At the hearing in chambers, Mr T. Fa submitted that tfendants denied neither the trespass, nor the damage. He said that the Defendants
had no rino right to enter the Plaintiff’s land without his permission and that if there was a dispute over the regularity of the
lease, they should bring an appropriate action in court.
Mr S.V. Coutts for the Defendant submitted that the lease was invalhat the Defendants were the owners of the land and that there was
no trespass.
The application for the interlocutory injunctions to prevent entry on the land, is governed by the principles in Ameriynamid v. Ethicon (/b> [1975] UKHL 1; (1975) AC 396. The first question is whether there is a serious question to be tried, the second is whether the balance of convenience favours a
grant of the injunction, and the third is whether it is in the interest of the overall justice of the matter, to grant the remedy.
On the facts before me, it is clear that there is a serious question to be tried. The Plaintiff is in occupation of land which he
has developed over a period of more than 20 years. He considers that he has a right to retain possession for as long as his lease
is valid. His life’s investment and his assets are at stake. The question of his rights to remain in possession over the landowners’
rights to take possession is clearly a serious question, and is not a frivolous issue.
Where then does the balance of convenience lie? If the Defendants are permitted to have the unrestrained use of his land, his cattle
may be lost, his crops destroyed and his fences damaged. It is clear from the affidavit of Onisimo Dominiko that the loss to him,
as a farmer would be considerable. Furthermore, his life’s investment in the farm would be jeopardised to an extent that may not
be adequately compensated in damages.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Defendants on the other hand have not shownthey would be prejudiced if they did not have the right to regain possession while
the subs substantive action is pending. Although they claim the lease is invalid, they have served neither notice to quit on the
Plaintiff, nor have they taken steps to seek court orders for his eviction. An injunction lies for the infringement of a recognised
legal right (Montgomery v. M (1964) 2 ALL ER 22. The right of an occupier to safe occupation against trespassers (including those who claim a right over the land) is such a legal
right.
The balance of convenience clearly favours the Piff and I am satisfied that there is a need to preserve the status quo until the substantivantive
action is heard.
I therefore order in terms of (1), (2) and (3) of the Notice of Motion until further order ofcourt.
An injunction to dismantle the stockyard would be a mandatory injunc to be granted in exceptional circumstances.
In Redland Bricks Ltd. v. Morris (1969) 2 ALL ER 576, Lord Upjohn said at page 579 that:
“A mandatory injunction can only be granted where the plaintiff shows a very strong probability on the facts thave damage will accrue
to h to him in the future .... It is a jurisdiction to be exercised sparingly and with caution but, in the proper case, unhesitatingly.
2. Damages will not be a sufficient or adequate remedy if such damage does happen...”
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The affidavit of the Plaintiff does not show what damage will occur if the stockyard remains on the property. I with the restraint
on the the Defendants entering the land, it is doubtful whether either party will suffer damage if the stockyard is to remain pending
the substantive action. As such I decline to order an injunction to order the Defendants to remove the stockyard.
This matter must now take its normal course. Costs are in the causean>
Nazhat Shameem
JUDGE
At Suva
Hbc0543j.99s
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