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Waiqele Sawmill Ltd v Sauma [2003] FJHC 240; HBC0034d.2002b (13 February 2003)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0034 OF 2002

Between:

WAIQELE SAWMILL LIMITED
Plaintiff

and

MATEO SAUMA
Defendant

Mr. A. Sen for the Plaintiff
Mr. H. Robinson for the Defendant

DECISION

There are two matters for Court’s determination. Firstly, there is an application on behalf of the Receivers and Managers (the “Receivers”) of Valebasoga Tropikboards Limited (“Tropikboards”) who have applied to be joined as a defendant to this action. Secondly, there is the question of whether the interim injunction granted or 23 May 2002 should be dissolved.

As ordered, both counsel filed useful and helpful written submissions herein on the issues before me for my determination.

Background

It is important that I set out the background to the case and this has been very clearly stated by Mr. Robinson in his written submission as follows:

Statement of Claim

4. This action was commenced by the Plaintiff (“Waiqele Sawmills”) against the Defendant (“Sauma”) by Writ of Summons containing a Statement of Claim on 20 May, 2002.
   
5. Sauma is named as the Defendant in his alleged capacity as Turaga-ni-Mataqali and purportedly as representative of Mataqali Vanualevu of Naduri, Labasa (“the Mataqali”).
   
6. In the Statement of Claim, Waiqele Sawmills claims that Sauma entered into an agreement with it on 8 February, 2001 (“the agreement”) to allow Waiqele Sawmills to extract all merchantable tree logs “on his licence” (“the licence”) relating to a defined piece of native land (“the land) which belongs to the Mataqali.
   
7. It claims to have paid him $10,000 in advance and incurred other costs amounting to $3,809.58.
   
8. It further claims that the agreement gave it sole rights to log under the licence, but that Sauma has allegedly, in breach of the agreement, allowed others to log under the licence.
   
9. Waiqele Sawmills claims inter alia damages, and a permanent injunction against Sauma and his agents, servants “or contractors” from extracting or removing logs from the land.
   

The Injunction

On the plaintiff’s application this court granted an interlocutory injunction until further order of this Court on 23 May 2002 as follows:

“i) THAT the Defendant be restrained by himself and/or through his servants, agents, or contractors and or howsoever from extracting or removing any logs from all the piece of Land covered under Native Land of NLC lot 18 NLTB ref. B/16 and B/21 until further order of this Court.

2. THAT the Defendant be restrained by himself and or his servants or agents or howsoever from uplifting royalities due and owing to him from Native Land Trust Board or Valebasoga Tropic Boards Limited until further order of this Court.
   
3. THAT all licence to log on NLC lot 18 NLTB ref. B/16 and B/21 be suspended until further order of this Court.
   
4. THAT the motion is returnable on 26^th day of June 2002 and affidavit in reply be filed and served within 21 days and reply if any thereto within 7 days thereafter”.
   

Tropikboard’s status on timber concession

The following is the status of the Tropikboards, referred to as “other contractors” in the Statement of Claim and in the injunction.

13. At the time the action was commenced and at the time the interim injunction was issued, Tropikboards was extracting timber from the land pursuant to a broad timber concession granted to Tropikboards by the Native Land Trust Board (“NLTB”) on 1 January, 2000 for 15 years (“the concession”), and also under logging licences issued by the Forestry Department and the NLTB (see paragraph 15 of Affidavit in Reply of Mateo Sauma filed on 31 May, 2002). Tropikboards had begun logging the land in September, 2001.
    
14. The effect of the interim injunction is to effectively stop Tropikboards from continuing with its logging on the land.
    
15. The affairs and property of Tropikboards are under the control of the Receivers pursuant to a Deed of Appointment by the Fiji Development Bank dated 1 May, 2001 (see Annexure “IBI” to the Affidavit of Ilaitia Boila filed herein on 20 June, 2002 (“Ilaitia Boila’s Affidavit)).
    
16. As a party adversely affected, the Receivers by Notice of Motion dated 20 June, 2002 have applied under O.15, r.6 of the RHC to be joined as a party to the action, and have also applied for an order discharging the interim injunction.
    
17. The Notice of Motio was supported by Ilaitia Boila’s Affidavit.
    

Consideration of the application

I have before me affidavits filed on behalf of the plaintiff by Abdul Aziz Begg (“Begg”) and affidavits filed for the Receivers by Ilaitia Boila (one of the Receivers)

The defendant “Sauma” has also filed an affidavit in Reply on 5 June 2002.

Some interesting revelations have been made in the various affidavits.

Boila’s affidavit reveals that: Tropikboards has exclusive right to log timber from the land in question granted by the NLTB on 1 January 2000; at the time of the agreement and subsequently, Sauma had no logging licence that was the purported subject matter of the agreement and since September 2001 Tropikboards has been logging the land under the concession and other relevant licences. This logging ceased as a result of the interim injunction.

Under the Agreement it is to be noted that under a second claim, Sauma purportedly gave a personal undertaking that the mataqali would not allow anyone else to log and in the event that a third party did log, Sauma assumes personal liability to pay Waiqele Sawmills (the plaintiff) $10,000.00 as “unliquidated damages”.

In Sauma’s affidavit it is revealed, inter alia, that he does not officially hold the position of Turaga-ni-Mataqali and is not its legal representative. He said that the agreement was never explained to him and that it is illegal and unenforceable; at that time he did not hold the logging licence referred to in the agreement and that he was not aware that he had to apply for a licence in respect of Waiqele Sawmills; he denies receiving $3,809.58 or that any member of the Mataqali did at the time when the agreement was signed, Begg told Sauma and members of his Mataqali that by signing the agreement, they could revoke the concession given to Tropikboards Limited by the NLTB.

Sauma is also asking the Court to dissolve the injunction.

Begg in his affidavit objects to joinder of Tropikboards as a party as it has no locus standi and that the concession is illegal and of no effect. He has not replied fully to Tropikboard’s assertions and allegations particularly whether there was ever any licence which could have been the subject of the said agreement or that Sauma had no power to bind his mataqali in respect of the land.

Or.15 r.6(2)(b) of the High Court Rules which provides as follows makes provision for joinder as a party and this is what the Receivers have applied for:

“(2) Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application –

(a) .....;

(b) order any of the following persons to be added as a party, namely –

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected to any relief or remedy which in the opinion of the Court it would just and convenient to determine as between him and that party as well as between the parties to the cause or matter.”

The learned counsel for the plaintiff referred to relevant authorities enabling the Receivers to be joined as defendant.

The following note to Or.15/6/8 of the Supreme Court Practice 1999 (the ‘White Book’) under the caption ‘Intervention of persons not parties’ is pertinent:

“Intervention by persons not parties – Generally in common law and Chancery matters a plaintiff who conceives that he has a cause of action against a defendant is entitled to pursue his remedy against that defendant alone. He cannot be compelled to proceed against other persons whom he has no desire to sue (quoted with approval by Wynn-Party J. in Dollfus Mieg, etc Compagnie S.A. v Bank of England [1951] Ch. 33).

Under this rule, however, a person who is not a party may be added as defendant against the wishes of the plaintiff either on the application of the defendant or on his own intervention, or in rare cases by the Court of its own motion. The jurisdiction of the court under this rule is entirely discretionary.”

It is further noted under Or.15/6/9 under ‘Interest of intervening party’ thus which is relevant here:

“Interest of intervening party – To entitle a person not a party to an action to intervene and to be joined as a party, the rule requires that the would-be intervener should have some interest which is directly related or connected with the subject matter of the action,

“Clearly what is contemplated is that, at the time when an order for rejoinder is made under this provision, the question or issue arising out of, or relating to, or connected with the relief or remedy claimed in the cause already arises between the party seeking to be joined and one or other of the existing parties...” per Bridge L.J. in Spelling Goldberg Productions v BPC Publishing [1981] R.P.C. 280 at 281.”

On the authorities and on the evidence before me this is a proper case in which the Applicants/Receivers be allowed to be joined to the proceedings as defendant. The Receivers assert a legal interest in the logs on the land as they have been logging on it for about a year under valid licences and which cannot be said for the plaintiff.

In these circumstances in terms of the said Order 15 to ensure that all matters are effectually and completely determined, it would be just and convenient to determine as between the plaintiff and Receivers questions arising out of the relief sought by the plaintiff in respect of the land.

I therefore allow the Receivers’ application.

Dissolution of injunction

The test for the grant of an injunction is as laid down in the famous case of American Cyanamid & Co v Ethicon Ltd [1975] UKHL 1; [1975] A.C. 396. In the exercise of the Court’s discretion on an application for an interlocutory injunction the following matters fall for consideration. The first is, ‘is there a serious question to be tried?’ If the answer is in the affirmative the further related question arises:
would damages be an adequate remedy for a party injured by the Court’s grant of, or its failure to grant an injunction?’ If the answer is in the negative, then the question is: ‘where does the balance of convenience lie?’

As far as the plaintiff is concerned it may have a serious question in regard to the damages but, and I agree with Mr. Robinson, that it does not meet the threshold in respect of its substantive claim for a permanent injunction. The defendant’s statements referred to hereabove in his affidavit throw doubt whether there in fact is an enforceable contract or that it ever came into existence particularly because of presumed non-existence of a licence to log.

This clearly is a case where damages would be an adequate remedy which the alleged agreement limits it to $10,000.00.

As for ‘balance of convenience’ it does not favour the plaintiff. There is no evidence of any logging on the land by the plaintiff. If the Receivers are made a party, the balance of convenience lies in their favour given their history of logging and their commitment of resources for that purpose. I agree with counsel that even without joinder the balance of convenience in any event lies with Sauma.

For the above reasons the interim injunction granted herein is dissolved.
The costs are to be costs in the cause.

As already stated, the Receivers are granted the application for them to be joined a party as defendant in this action.

The parties are at liberty to apply for directions in the matter.

D. Pathik
Judge

At Suva
13 February 2003