| Fiji Islands - Charan v Native Land Trust Board - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO: HBC0091 OF 2000
BETWEEN:
RAMENDRA CHARAN
Plaintiff
AND:
NATIVE LAND TRUST BOARD
1st Defendant
AND:
nbsp; MATAQALI VUSATORANIKUKU,
YAVUSA NAILAGOLABA
2nd Defendant
Counsel: Mr R Prasad for Plaintiff
Mr S. Naqase for Defendants
Hearing: 14th March 2000
Judgment: 14th 2000
JUDGMENT
This is an application for an injunction to allow the Plaintiff to remove two dwelling-houses on natand at Vunimomo, Nausori, ari,
and to restrain the 2nd Defendant from removing the same dwelling-houses.
The writ of summons filed on 2nd March 2000, claims that the Plaintiff holds a Power of Attorney over toperties at Nausori, the leaseholders
having migrated. The The land is subject to the Agricultural Landlord and Tenants Act.
On 7th June 1999, the NLTB issued a notice to the Plaintiff that all leases would e on 31st December 1999. The land-owning unit (the
2nd Defe Defendant) wrote to the Plaintiff telling him that the leases would not be renewed and that the Plaintiff would be entitled
to compensation under ALTA.
On 10th November 1999, the 2nd Defendant advised the Plaintiff that land adjoining the Vuci South Road would be sub-divided residential
blocks, and thad that leases for those blocks would be extended on payment of “good-will” sums of $5,000 to $10,000 to be paid by
10th March 2000.
The properties which are the subject of this actidjoined the Vuci South Road. Nevertheless, on 7th February, before the goodwill period
had had expired, the 2nd Defendant served the Plaintiff with an eviction notice for immediate vacant possession. On 10th February
2000, the Plaintiff vacated both properties, leaving the dwelling-houses behind.
The Plaintiff now says that the Defendants have refused to let him dismantle the houses to build elsewhere. He also claims he has
not been compensated for the improvements on the property.
The application for injunction is supported by the affidof Ramendra Charan sworn on 29th February 2000. That affidavit states that
the landowners rers refused to allow Ramendra Charan to dismantle his corrugated and timber dwellings on the property, and that they
have damaged the properties which are worth $25,000 and $18,000 respectively.
By writ of summons the Plaintiff claims he has not compensated for the improvements on the land pursuant to the Agricultural Landlord
and Tend Tenants Act. He claims compensation and an injunction.
The matter was heard on 14th March 2000. The Defendants sougave to file the affidavit of Ratu Kitione Vesikula Tuibua, sworn on 17th
March 2000. In than that affidavit, the Defendants deny damaging the Plaintiff’s dwelling-houses, and state they dispute the value
and compensation sought for the houses, on the ground that they do not satisfy the provisions of the Schedule of Improvements of
ALTA. Furthermore the affidavit states that the landowners are concerned that the land be returned undamaged, and that the removal
of the dwelling-houses would pre-empt the question for trial, that is whether they constitute “improvements” under the terms of ALTA.
Written submissions were to be filed by both parties. However by 26th May 2000 only the Plaintiff had filed submissions.
The order sought is an order allowing the Plaintiff to dismantle his dwelling-houlthough any such order would require a positive act
to be d be done, that act is to be done by the Plaintiff and not the Defendant. As such, I am prepared to treat this as an application
for an interlocutory injunction restraining the Defendants from preventing the removal of the house, rather than for a mandatory
injunction requiring some act on the part of the Defendants.
As such the principles in American Cynamid -v- Ethicon Ltd. (1975) A applthis applicatiication. The principles are whether ther there is a serious question to be tried whether damages would
be an adequemedy, and consideration of where the balance of convenience lies.
The Plaintiff says, and the Defendants concede, that the issue of what constitutes an “improvement” for the purposes of ALTA, is a
questhich ought to be decided oned on trial. Indeed, the issue will also involve the related question of whether the land is being
restored to the landowners in an acceptable condition, and whether the landowners have been compensated for any damage sustained
to the land by the Plaintiff’s occupation of it. There is therefore, a serious question to be tried.
However, I am not satisfied that damages would be an inadequate remedy for the Plaintiff. The Plaintiff doessuggest that he is now
home homeless. Indeed he is now residing in a house not far from the properties in question. Counsel submits, that the house runs
the risk of damage and deterioration. The Defendants say that they are prepared to ensure that no one resides in the house, and that
no damage is done to it.
The dwelling-houses in question are capable of valuation, damaged, or undamaged. Although it is understandable that the Plaintiff
should have an emotional link with a house built by his elders, he will be restored the house, if he succeeds in this action.
If however, he does not succeed, the house would have to be moved again to the properties belonging to thendants with no assurance
tnce that they would be returned in the condition that they were left by the Plaintiff at the expiry of the leases.
Thus although the Plaintiff may be adequately compensated in damag do not think that the Defendants would be, if they succeed in their
defence.
Even if damages were not an adequate remedy, the balance of convenience clearly favours the Defendants, particularly when thee agreed
to mount a watch otch over the house to ensure that no further damage is done.
For these reasons the injunction to allow the Plaintiff to dismantle the dwelling-houses, is refused.
I do however order in terms of the Notice of Motion in respect of an order restraining the Defendarom damaging or removing any part
of the dwelling-houses unes until the hearing of this action.
Costs are in the cause.
&
Nazhat Shameem
JUDGE
At Suva
14th June 2000
Hbc0091j.00s
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