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Gavidi v Native Land Trust Board [2008] FJHC 24; HBC222.2007 (29 February 2008)

IN THE HIGH COURT OF FIJI
AT SUVA

CIVIL JURISDICTION

Civil Action No HBC 222 of 2007

BETWEEN:

RATU OSEA GAVIDI
Plaintiff

AND

NATIVE LAND TRUST BOARD
First Defendant

NATADOLA LAND HOLDINGS
Second Defendant

FIJI NATIONAL PROVIDENT FUND
Third Defendant

Ms T. Draunidalo for Plaintiff
Mr N. Tuifagalele for First Defendant
Mr I. Fa for Second and Third Defendants

Date of Hearing: 8th February 2008
Date of Ruling : 29th February 2008

DECISION ON INTERLOCUTORY INJUNCTION

This is a vigorously contested application for interlocutory injunction. The motion was filed ex-parte by me. The Orders sought by the motion are:

"(a) Until further Orders, all of the defendants are restrained from entering or accessing the Land (in any manner whatsoever);

(b) Until further Orders, the 2nd and 3rd Defendants are restrained from entering or accessing the Land (in any manner whatsoever);

(c) Until further Orders, the 2nd and 3rd Defendants are restrained from doing any work whatsoever relating to the Development."

A quick glance at the Orders sought shows that they are unusually wide and ambiguous. What would happen if the defendants had some machinery or building material lying on the land? Do they let these go to waste. A person served with orders in these terms will have great difficulty in obeying them. A person served with an order must be able to understand what he/she is required to do or refrain from doing. The consequences of failure to obey orders are contempt proceedings where a person’s freedom is put at stake. Therefore there is need for utmost clarity in the order. Contempt proceedings may not be able to assist one in enforcing the orders which have been disobeyed because they were ambiguous: Iberian Trust Limited v. Founders Trust and Investment Limited (1932) 2KB 87 at 94.

Mr Fa in his submission made a scathing attack on the statement of claim. He submitted that the statement of claim was unintelligible and vague and difficult to respond to.

The Statement of Claim:

The statement of claim contains 51 paragraphs with 11 prayers. The statement of claim is difficult to understand. A statement of claim is supposed to set out relevant material fact concisely: Order 18 Rule 11.

A certain amount of details is necessary to make a claim intelligible and to be expressed with clarity so the opposing party knows the case he/she has to answer. The Rules themselves do not specify the degree of particularity required so they do admit some measures of flexibility and individuality. But pleadings cannot be prolix or embarrassing or confusing. The plaintiff had not only set out facts but also matters of his belief; for example, paragraphs 47, 48 and 49. They read:

"47. The Plaintiff believes that the letter from the 1st Defendant show a bias for the interests of the FNPF in the 2nd Defendant and it attempts to get the beneficiaries as landowners to collude in unlawful acts and or bribe the beneficiaries. The plaintiff also believes that the letter shows no respect at all for what the beneficiaries think or know is in their best interests viz the Development.

48. The Plaintiff believes the Development is in real risk of permanent closure and there

is real risk of the Defendants acting to the detriment of the beneficiaries or without due regard to their interests and wishes for the Development.

49 The beneficiaries believe that the person currently dispensing with the duties of the Minister for Fijian Affairs and thereby member of the Board of the 1st Defendant has a potential conflict in that his so called interim administration reconstituted the Board of the 2nd Defendant after 5 December 2006 and that reconstituted Board is the Board that purported to terminate the Agreement."

There are also irrelevant paragraphs which deal with the landowners discussions with one Salliot and Asia Pacific Resort International Limited (APRIL). These two are not parties to the proceedings and their relevance is not disclosed.

From what I can make out of the statement of claim the plaintiff says he represents certain landowning units. He says that the landowning units had dealings with one Gerald Saliot and a company called Natadola Marine Resort Limted (NMRL) since 1994. The statement of claim alleges that Natadola Marine Resort Limited managed to acquire a special tourism development lease for a period of 15 years over 600 hectares from the Native Land Trust Board. The NMRL wanted to develop tourism in the area. FNPF was the financer of the project. It alleges that FNPF Investments Limited owns 51 percent shares in Natadola Land Holdings Limited (NLHL). It alleges that Natadola Land Holdings Limited had entered into a Development Management Agreement with APRIL for development of the area. In March 2007 the FNPF terminated the management agreement. That termination is subject matter of a different action.

It is alleged that under the management by APRIL, the landowners were provided employment by APRIL. They also used parts of the leased land not necessary for development for subsistence farming.

The plaintiff complains that since the termination of works, the landowners have lost out on employment as the works have come to a halt. This is a fact denied by the defendants. They also complain that as part of the issue of 15 year lease, the second defendants were required to pay $1 million to the first defendant for the benefit of landowners. They say only $750,000.00 has been paid. The defendants say the whole sum has now been paid.

The plaintiff alleges that the beneficiaries have no faith in FNPF and the second defendant to complete the works and no faith in the NLTB to fulfill its statutory duties to them.

As this is an application for interlocutory injunction, the usual principles for granting interlocutory injunctions as set out in American Cyanamid Co. v. Ethicon Ltd [1975] UKHL 1; 1975 AC 396 will apply.

1. The Plaintiff must establish a serious question:

In the written submissions the plaintiff stated and outlined nineteen serious issues. I do not intend to set them out in detail or verbatim. However, the gist of these nineteen serious issues is that the beneficial landowners had given consent to the first defendant to issue a 15-year development lease on certain terms and conditions. What those terms were is not specified. It is alleged that the first defendant failed to issue the lease on those terms and conditions. Ms Draunidalo also stated that the second defendant has breached terms of lease and therefore the NLTB should have terminated the lease.

It appears therefore that the plaintiff has shifted his grounds from the original statement of claim. These issues which are outlined in the submissions are not stated in the statement of claim. The allegations made in the statement of claim do not support the submissions. There is no clear cut allegation in the statement of claim to suggest that the NLTB had agreed with the landowners to certain terms and conditions to be incorporated into the Development lease but later failed to do so.

I note that in Clause 2(k) of the Development Lease the lessee has agreed to give first preference to the landowning unit in both skilled and unskilled employment and in clause 2(s) to promote training of the members.

On the plaintiffs statement of claim it is difficult to discern any serious issues. Even more telling is the affidavit of Ratu Osea Gavidi and sworn on 23rd November 2007 in support of the motion. In paragraph 5 he deposed that he had been informed by the beneficiaries that they will set up road blocks to bring the entire development to an end even though the matter is before the court. He says the injunction is needed to keep the peace. Threats of violence to achieve even legal rights cannot be made a ground for injunction.

2. Damages:

The plaintiff submits that damages are not an adequate remedy. Ms Draunidalo submits that damages cannot compensate for the alienation of all communal land under a 15-year development lease. She submits that there are hostile relations between the landowning units.

What the above submissions fails to note is that the landowning units had consented to a development lease being issued. The landowners were to be paid $1 million for them agreeing to give their consent to allow their land to be leased out. Of this sum $750,000.00 has already been paid to them. So the landowners had put a price tag on the alienation of land. They were also to get annual rent.

The leases have been issued by the Board. At the time the landowners must have been happy to alienate the land that is whey they gave their consent. Now few years later they are saying that damages are not an adequate remedy. This argument is entirely unconvincing and appears to be still born.

3. Balance of Convenience:

The Plaintiffs have a Special Tourism (Development) Lease over 1419 acres and 3 roods. It is for a term of ten years from 1st January 2004. One of the conditions of the lease is that it requires the second defendant to develop a tourist resort on the land on the basis of a plan. If the court were to grant the injunction, it would mean the second defendant not being able to enter the land. The defendants would not be able to develop the tourist resort. This will result in the second defendant not being able to comply with a positive requirement of the lease. An injunction would seriously defendant’s right to enjoyment of his lease.

If development is put on hold, it would also affect the plaintiffs too as it could deprive them of employment.

The landowners have had the benefit of $750,000.00 which has been paid. The second defendant has paid another $250,000.00 to the Board. The second defendant has constructed roads, planned a golf course and according to plaintiff’s counsel done development to the tune of $100 million on nearby Crown Land which is part and parcel of the same tourist project. The balance of convenience favours the defendants and the maintenance of the status quo.

I also have my grave doubts about the ability of the plaintiffs to pay damages and the undertaking given may not be worth much. The damages likely to result from grant of injunction, I very much suspect, would be considerable. Ratu Osea Gavidi himself is undischarge bankrupt. Two of the terms deposits annexed to support the undertaking are not current but their terms have run out and may well have been cashed. In his supplementary affidavit sworn on 7th December 2007, Ratu Osea Gavidi in paragraph 7 states "The beneficiaries did not have funds to go to the provincial office..." so they are hardly likely to be able to meet damages if awarded.

I am of the view that the status quo should remain. The second defendant has a lease. It should be allowed to have unimpeded access to it so it can develop the lease.

Accordingly, I refuse the plaintiff’s application with costs summarily fixed in the sum of $800.00 to be paid in fourteen (14) days.

Jiten Singh
JUDGE

At Suva
29th February 2008.