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Digicel (Fiji) Ltd v South Seas Club [2010] FJHC 621; HBC238.2010L (21 December 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 238 of 2010L

BETWEEN:

DIGICEL (FIJI) LIMITED
Plaintiff

AND:

SOUTH SEAS CLUB
Defendant

INTERLOCUTORY JUDGMENT
(Second)

Judgment of: Inoke J.

Counsel Appearing: Ms A Swamy for the Plaintiff.

Solicitors: Diven Prasad Lawyers for the Plaintiff.

Date of Hearing: 21 December 2010
Date of Judgment: 31 December 2010

INTRODUCTION

[1] On 16 December 2010, I granted ex-parte orders in favour of the Plaintiff, Digicel, restraining the Defendant, the Club, from interfering with Digicel's transmission tower and other communication equipment.

[2] Paragraph 3 of the orders sought was to require the Lautoka Police to assist in the carrying out of the ex-parte orders. As I said in my judgment, I did not think it was necessary as I thought it was a matter which the Police would do without question so I did not grant it.

[3] That was not to be so Digicel's solicitors had to file a second application on 21 December 2010 for that purpose. I heard and granted the application ex-parte on that day.

[4] These are the reasons for granting those orders.

THE BACKGROUND

[5] I reproduce the background as I have set out in my earlier judgment for completeness:

1. Digicel is one of two mobile phone service providers in Fiji. The Club owned and occupied a Crown Lease No 11965 on the foreshore in Lautoka as its premises. On 1 October 2007, Digicel and the Club entered into a Sub-lease Agreement in which the Club sublet 80 square metres of its land (the communication site) for the purpose of Digicel building on it and operating communications facilities required for its network services in the West of Vitilevu. The Agreement was registered with the Registrar of Deeds on 30 October 2007 with the Director of Lands consent for a sub-lease of 5 years from 16 May 2007. The sub-lease is therefore still current.
   
2. On 20 November 2007, Digicel erected its communication tower and began network operations and provided good coverage for the people of Lautoka. Everything went well until some 10 months later in 2008 when there was a change of Presidency in the Club. That appears to be the catalyst for a series of disputes which seems to me to be based on the new management being not satisfied with the income agreed to by the previous management. The Club now wanted a goodwill payment of $30,000 and an increased rental. Attempts to settle the disputes failed and Digicel took out Court proceedings in Civil Action HBC 31 of 2010.
   
3. On 22 February 2010, Mr Justice Yohan Fernando issued a restraining order against the Club for 28 days and ordered the Club give access to Digicel for the use of the communication site. The matter was then adjourned to 9 March 2010. Those orders were further extended on 7 April 2010 for 3 months to 8 July 2010. However, paragraph 2 of the orders of 7 April 2010 stated that the Club was "restrained from interfering with the peaceful occupation of the communication site or in any manner whatsoever until further Order of this Court". The matter was then adjourned to 6 July 2010. Action HBC 31 of 2010 was then to take its normal course.
   
4. However, on 14 December 2010, certain persons from the Club went into the communication site, changed the locks of the communication room and disconnected the power supply causing a total shut down of the Digicel network service in Lautoka and the Western Division.
   
5. That led to Digicel's solicitors filing another Writ of Summons with an indorsed claim on the same day as the Ex-parte Motion seeking an injunction and damages.
   

THE SECOND EX-PARTE APPLICATION

[6] The current Ex-parte Motion was also issued pursuant to Order 29 Rules 1 and 2 of the High Court Rules 1988 as well as pursuant to Order 45 Rule 4 and Order 52 Rule 1(4). It seeks the following orders:

1. An Order that the Lautoka Police Officers to accompany the Plaintiff, its servant or agents to enforce the Order of this Honourable Court dated 16th December 2010.
   
2. An Order that the Defendant, its servant or agents to open the locks of the communication site and comply with the Order of the Court dated 16th December 2010.
   
3. An Order that leave be granted for the Plaintiff to take committal proceedings against the Defendant's secretary namely, Mr Duke, who willingly refused to comply with the Order of this Honourable Court.
   
4. The costs of this application to be paid by the Defendant.
   

[7] The application obviously came before me.

[8] The affidavit in support of this application was sworn by the Field Engineer of Digicel. He says Digicel's solicitors hired a bailiff to accompany his staff and reopen the communication facility so the people of Lautoka and Nadi could start using their mobile phones. He then goes on:

5. ... when my staffs (sic) with the bailiff one Mr Ashok Chand went to the site at the Defendant's premises the Defendant's club secretary one Mr Duke with his fellow employees stopped the bailiff and my staffs at the entrance of the said premises and when Mr Chand tried to serve the Order, Mr Duke refused to accept it and told his employees not to allow any of my staffs inside the premises.
   
6. ... I then told my staffs to report the matter to the Lautoka Police which they did however the Lautoka Police Officer In Charge informed our Company solicitor Diven Prasad that he will not take any action since it is a civil matter and the Order does not state Police to intervene.
   
7. ... I ... verily believe that the Court Order must be complied with at all times and the blatant disregard by the Defendant and Mr Duke has denied Digicel Fiji Limited to provide (sic) network on all Digicel phones to people of Lautoka and Nadi.
   
8. ... Mr Duke has also replaced the locks to the communication site and he has refused to allow entry to my staff nor wiling to provide the keys to the locks therefore the locks have to be broken to gain excess (sic) and my company will then have to replace it (sic) with new locks.
   

[9] This is not the first time that Lautoka Police Officers have refused to assist in the enforcement of such Orders from this Court. It matters not that the Order is in a civil matter. All Court Orders must be obeyed until the Court itself sets them aside. The Police must assist in their compliance, especially in a case such as this. Otherwise this Court will be forced to make it a standard order that Police do so in every such civil matter.

[10] There is one good reason why I did not grant at first instance the order currently sought for Police assistance. It avoids Police Officers being committed if they fail to assist in the enforcement of the Court Order. It is for their own protection. I hope the Officer in Charge, and Police officers generally for that matter, do take note, seriously.

[11] I am satisfied that there was deliberate disobedience of the Court Orders of 16 December 2010 by the Club and Mr Duke.

[12] I therefore granted orders in terms of paragraphs 1, 2 and 3 of the Ex-parte Motion filed on 21 December 2010.

CIVIL ACTION: HBC 31 OF 2010

[13] In the course of writing this judgment I called for the file in HBC 31 of 2010 to be brought to me. It appears from the file notes that on 10 November 2010 Mr Justice Fernando struck out Digicel's action and dismissed it for non compliance with His Lordship's order of 13 September 2010 requiring the company to file its bundle of documents.

ORDERS

[14] The Orders that I made were therefore as follows:

1. Order as per paragraphs 1, 2 and 3 of the Ex-parte Motion filed on 22 December 2010.
   

Sosefo Inoke
Judge

POST SCRIPT

1. On 22 December 2010, the Club's solicitors filed an Ex-parte Motion seeking to set aside my Orders of 5 (sic) and 21 December 2010 and to restrain Digicel from entering its premises on what appears to be on the grounds that the action was null and void under s 13(1) of the Crown Lands Act [Cap 132].
   
2. I directed the Registry to issue the application Inter-partes for mention on 31 January 2011 together with the Motion filed on 16 December 2010.
   
3. The affidavit in support was sworn by the Club secretary, Mr Duke Khan. I note that he did not deny disobeying the earlier Court Orders. Instead he went to great lengths to justify his disobedience.
   
4. I repeat what I have said above: All Court Orders must be obeyed until the Court itself sets them aside, however right Mr Duke might think he is or sound his legal advice might seem to him. He has no right to be heard until he has complied with the Orders already made and I hope his counsel, Mr Tunidau, will impress that upon him.
   

Sosefo Inoke
Judge