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Vanualevu Muslim League v Hotel North Pole [2013] FJHC 151; HBC32.2011 (2 April 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 32 of 2011

BETWEEN:

VANUALEVU MUSLIUM LEAGUE an organization having
its registered office at 14 Juduram Street, Labasa.
PLAINTIFF

AND:

HOTEL NORTH POLE having its registered office at 9
Damanu Street, Naseakula Road, Labasa.
1ST DEFENDANT

AND:

MATASAWA INVESTMENT LTD having its registered office in Labasa.
2ND DEFENDANT

AND:

LABASA TOWN COUNCIL
a Council established under Local Government Act of Fiji, Cap. 125.
3RD DEFENDANT

AND:

THE ITAUKEI LAND TRUST BOARD
a corporate body established under the Native Land Trust Act Cap 134.
4TH DEFENDANT

AND:

MINISTRY OF LANDS AND MINERAL RESOURCES
5TH DEFENDANT

AND:

MINISTRY OF LOCAL GOVERNMENT, URBAN
DEVELOPMENT, HOUSING AND ENVIRONMENT
6TH DEFENDANT

AND:

ATTORNEY GENERAL'S CHAMBERS
7TH DEFENDANT

BEFORE : Hon. Justice Susantha N Balapatabendi

COUNSEL : Mr. Vosarogo F for the Plaintiff
Mr Amrit Sen for the 1st and 2nd Defendant
Mr Singh G for the 3rd Defendant
Mr. Kolitani L for the 4th Defendant
Ms. Karan N for the 5th, 6th, & 7th Defendant

Date of Judgment : 2 April 2013

INTERLOCUTORY JUDGMENT

1. The plaintiff commenced an action in this case by issuing a Writ of Summons dated 7 of September 2011 against the defendants claiming injunction against 1st, 2nd, 3rd and 4th defendants and a number of declarations against 1st, 2nd, 4th and 6th defendants.
   
2. The plaintiff by its ex-parte notice of motion dated 9 September 2011 supported by an affidavit of Bashir Khan sworn on 9 September 2011 sought for an order that the 1st, 2nd, 3rd and 4th defendants whether by itself or by its servants or agents or otherwise whosoever be restrained from demolishing the easement, drain and kindergarten at the back of the plaintiff's property described as Crown Lease No 17786 being Lot I3 & I3A on Plan No MI 644 which easement is contained in Lease No. 6068 being Lots 1 & 2 on Plan No M 20605 upon the grounds contained in the affidavit.
   

The application is made pursuant to Order 29 rule 2 of the High Court Rules 1988.

3. Upon hearing the counsel on the ex-parte notice of motion and on the affidavit of Bashir Khan sown on 9 September 2011, court granted the following order inter-alia, until further order, the 1st, 2nd, 3rd, 4th defendants whether by themselves or servants or by its agents be restrained from demolishing the easement, drain and kindergarten at the back of the plaintiff property described
   

as Crown Lease. 17786 being Lo 13 & 13A on Plan No. MI644 which easement is contained in Lease No. 6068 being Lots 1 & 2 on Plan No. M 20605.

4. The following affidavits of the defendants were filed in opposition to the continuation of the ex-parte injunction granted by the court:-
   
   • (i) Answering Affidavit in Opposition of Vinesh Dayal sworn on the 29th of September 2011 and filed on the 3rd of October 2011; and
     
   • (ii) Answering Affidavit in Opposition of Varanisese Vetala sworn on the 30th of September 2011 and filed on the 4th of October 2011; and
     
   • (iii) Answering Affidavit in Opposition of Jitendra Prasad sworn on the 12th of October 2011 and filed on the 13th of October 2011; and
     
   • (iv) Supplementary Affidavit of Vinesh Dayal sworn on the 16th of April 2011 and filed on the 17th of April 2012.
     
5. The following affidavits of Bashir Khan sworn and filed on 25 October 2011 and supplementary affidavit sworn and filed on 6 March 2012 in response to the affidavits filed by the support of defendants.
   
6. The ex-parte notice of motion supported by the affidavit of Bashir Khan sworn on 9 September 2011 stated that the plaintiff held on easement, drain on CL No. 6068 being Lots 1 & 2 on Plan No. M 20605. Bashir Khan further deposed in his affidavit as the basis for the ex-parte injunctions that the plaintiff is the owner of the property namely Crown Lease No. 17786 being Lot 13 &13A and the said lease has an easement over CL No. 6068 being Lot 1 & 2 on Plan M 20605.
   
7. Bashir Khan further deposed in paragraph 19, 20 of his affidavit sworn on 9 September 2011 as follows:-
   

"That on the 29th August 2011 a civil Contractor of Viti Vanua Holding Limited ("VVHL") and the Director of the 1st Defendant approached me and informed me that they will demolish the easement, drain and the kindergarten at the back of the Property to make a way for the hotel to be built on Lease No 6068 being Lots 1 & 2 on Plan No M 20605 which I am informed is a tourist based project by the 1st and 2nd Defendant.

"That the 1st and 2nd defendants have started earthworks in preparation of constructions of a hotel at the back of the Plaintiff's property by hiring VVHL and the earthworks will, I believe cover and damage the drainage and outlets of the Plaintiff's building which will inevitably cause irreparable damages to the Plaintiff's building due to a more than likely reversal surge of water from the water chambers when in the event of heavy rain, storm or flooding."

8. In view of the material deposed in the affidavit of Bashir Khan on behalf of the plaintiff, it is clear that the basis for his ex-parte injunction mainly depend on the availability of an easement in the property owned by him.
   
9. The itaukei Land Trust Board, the 4th defendant in this case, filed an affidavit of Varanisesse Veitala sworn on 30 September 2011 in response to the affidavit of Bashir Khan sworn on 9 September 2011 and deposed in para 5 as follows;
   

"Save as to admit that adjacent to the building comprises a wooden house that is currently holds a kindergarten school, a drain and Jaycees Park as alleged in paragraph 5 of the said affidavit, the Crown Lease No. 6068 containing Lots 1 & 2 on Plan No. M 2605 (hereinafter referred to as the "alleged CL 6068") does not

contain the said fixtures as alleged by the Plaintiff. That the alleged CL No. 6068 does not contain Jaycees Park however refers to a different portion of land being CL No. 6068 Lot 1 on Plan

M2458 Public Open Space in District of Labsa and Province of Macuata."

10. What is an Easement?
    

Easement is described by A Concise Law Dictionary by Osborn – as a servitude; a right enjoyed by the owner of land over the lands of another; such as rights of way, rights or light, rights of support, rights to a flow of air or water.

Section 106 of the Property Law Act describes easement as "an easement over land may be created without being attached or made appurtenant to other land, and such as easement shall run with and bind the land over which it is created, and all persons claiming title to that land by, through or under the persons creating the easement; and the easement so created shall be to all intents and purposed an incorporeal heriditament, and shall be assignable accordingly".

11. In the case of Fongs Holding Ltd v Harifam Ltd [1996] FJHC 71 provided that;
    

"The learned author of Torres Title in Australia (Vol. 1) at p 510 identifies 5 methods by which easement may be created, namely:

1. By express grant;
2. By express reservation;
3. By implied grant or reservation;
4. By prescription; and
5. By Statue."
   

Furthermore that legal easement on land is to be subject to section 49 of the Land Transfer Act Cap 131 which provides;

Creation of easement and profits:

49. Whenever any easement or profit a prendre is created over any land, the grantor may execute a grant of easement in the prescribed form or a profit a prendre in such form as may be approved by the Registrar and the Registrar shall enter a memorial of the instrument creating such easement or profit a prendre upon the folium of the register constituted by the existing grant, certificate of title or lease o the grantor, and, except where an easement or profit a prendre is in gross, the Registrar shall also enter a memorial upon the folium of the register constituted by the existing grant, certificate of title or lease of land to which the easement is annexed or with which it is used and enjoyed.

12. Accordingly, there is no easement found on the locality plan on the Plaintiff's Lease being CL 17785. The 4th Defendant submits the Plaintiff had tampered with the drawing of its locality plan as attached in the affidavit.

13. Having considered all the facts and circumstances as stated above, this court is of the view that there is no easement found on locality plan of plaintiff's lease being CL 17785 or Lot 1 on plan M2605.

14. Consequences of material non-disclosure and failure of full and frank disclosure.
What happens if the applicant is found guilty of material non-disclosure. The applicable principles were set out by the Court of Appeal in Brink's Mat Ltd –v- Elcombe (1988) 1 WLR 1350 at 1356:-

"In considering whether there has been relevant non-disclosure and what consequences the court should attach to nay failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to me to include the following:-

1. The duty of the applicant is to make "a full and fair disclosure of all the material facts:" see Rex-v- Kensinghton Income Tax Commissioners, Ex-parte Princess Edmond de Polignac (1917) 1 K.B. 486, 514, per Scrutton L.J.
   
2. The material facts are those which it is material for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisors: see Rex-v-Kensington Income Tax Commissioners, per Lord Cozens-Hardy M.R., at p. 504, citing Dalgish –v-Jarvie [1850] EngR 688; (1980) 2 Mac. & G. 231, 238 and Browne-Wilkinson J. in Thermax Ltd –v- Schott Industrial Glass Ltd (1981) F.S.R. 289, 295.
   
3. The applicant must make proper inquiries before making the application: see Bank Mellat –v-Nikpour (1985) F.S.R. 87. The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional as facts which he would have known if he had made such inquiries".
   
4. The extend of the inquiries which will held to be held to be proper, and therefore necessary, must depend on all the circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application; and (b) the order for which application is made and the probable effect of the order on the defendant; see for example, the examination by Scott J. of the possible effect of an Anton Piller order in Columbia Picture Industries Inc.-v-Robinson (1987) Ch 38; and (c ) the degree of legitimate urgency and the time available for the making of inquiries: see per Slade L.J. in Bank Mellat –v- Nikpour (1985) F.S.R. 87, 92-93.
   
5. If material non-disclosure is established the court will be "astute to ensure that a plaintiff who obtains (an ex parte injunction) without full disclosure ......is deprived of any advantage he may
   

have derived by that breach of duty:' se per Donaldson L.J. in Bank Mellat –v- Nikpour at p. 91, citing Warrington L.J. in the Kensington Income Tax Commissioner' case (1917) 1 K.B. 486, 509.

6. Whether the fact not disclosed is of sufficient materially to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application. The answer to the question whether the non-disclosure was innocent
   

in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to give careful consideration to the case being presented.

7. "when the whole of the facts, including that of the original non-disclosure, are before (the court, it) may well grant ... a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed:" per Glidewell L.J. in Lloyds Bowmaker Ltd –v- Britannia Arrow Holding Plc., ante, pp. 1343H – 1344A".
   

In the same case Balcombe LJ stated:

"The rule that an ex-parte injunction will be discharged if it was obtained without full disclosure has a two-fold purpose. It will deprive the wrongdoer of an advantage improperly obtained: see Rex –v- Kensington Income Tax Commissioners, Ex-parte Princess Edmond de Polignac (1917) 1 K.B. 486, 509. Bit t also serves as a deterrent to ensure that persons who made ex-parte applications realize that they have this duty of disclosure and of the consequences (which may include a liability in costs) if they fail in that duty. Nevertheless, this judge-made rule cannot be allowed itself to become an instrument of injustice. It is for this reason that there must be discretion in the court to continue the injunction, or to grant a fresh injunction in its place, notwithstanding that there may have been non-disclosure when the original ex-parte injunction was obtained: see in general Bank Mellant –v- Nikpour (1985) F>S>R. 87, 90 and Lloyds

Bowmaker Ltd –v- Britannia Arrow holdings Plc., ante, p. 1337, a recent decision of this court in which the authorities are fully reviewed. I make two comments on the exercise of this discretion is one to be exercised sparingly, I would not wish to define or limit the circumstances in which it may be exercised. (2) I agree with the views of Dillon l.J. in the Lloyds Bowmaker case, at p. 1349C-D, that, if there is jurisdiction to gr a fresh injunction, then there must also be discretion to refuse, in an appropriate case, to discharge the original injunction".

15. Inoke J, in Vinod Patel & Company Vs. Vimal Construction & Joinery Works Ltd 2011 FJHC 194 cited the following passage of Donaldson L.J in Bank of Mellat v. Nikpour (1985) F.S.R. 87;
    

"This principle that no injunction obtained ex parte shall stand if it has been obtained in circumstances in which there was a breach of the duty to make the fullest and frankest disclosure is of great antiquity. Indeed, it is so well enshrined in the law that it is difficult to find authority for the proposition; we all know it; it is trite law. But happily we have been referred to a dictum of Lord Justice Warrington in the case of R.v.Kensington Income Tax Commissioners, exp. Princess Edmond de Polignac (1917) 1 K.B. 486 at p. 509. He said: 'It is perfectly well settled that a person who makes an ex parte application to the court – that is to say, in the absence of the person who will be affected by that which the court is asked to do - is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him."

16. The Defendants have asserted in their written submission that plaintiff has failed to disclose any easement in the property owned by him and material facts

had not been placed before the court when obtaining the ex-parte injunction. The defendants have made this assertion on non disclosure of material facts
against the plaintiff in their written submissions to which plaintiff's written submissions failed to meet the assertion to the satisfaction of the court.

17. In American Cynemid Company v. Ethicon Limited [1975]. [1975] UKHL 1; 1 All E.R. 504 the House of Lords decided that in all cases, the court must determine the matter on a balance of convenience there being no rule that an applicant must establish a prima facie case. The extend of the court's duty in considering an interlocutory injunction is to be satisfied that the claim is not frivolous or vexatious.
    

17.1 In that judgment lord Diplock stated the object of the interlocutory injunction as follows:-

'..the object of the interlocutory injunction is to protect the plaintiff against injury by violation of his rights for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favourate the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking I damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where the balance of convenience lies."

Lord Diplock further stated:

'It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.'

17.2 A similar view was expressed by McCarthy P while explaining the objective of an interim injunction in Northern Drivers Union v. Kawau Island Ferries Ltd (1974) 2 NZLR 617 at 620 and 621, where he stated:

"The purpose of an interim injunction is to preserve the status quo until the dispute has been disposed of on a full hearing. That being the position, it is not necessary that the court should have to find a case which entitle the applicant to relief in all events: it is quite sufficient if it finds one which shows that there is a substantial question to be investigated and that matters ought to be preserved in status quo until the essential dispute can be fully resolved...

......It is always a matter of discretion, and as the citation from Lord Pearce endorses, the court will take into consideration the balance o convenience to the parties and the nature of injury which the defendant, on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right."

17.3 In American Cyanmid v. Ethicon Co Ltd [1975] 1 All E.R Lord Diplock further enunciated what should the court 'approach be in considering the granting of an injunction as follows:

"....... the court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.

17.4 It is no part of the court's function at this stage of the litigation to try to

resolve conflicts of evidence on affidavit as to facts on which the claim of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial........

............the governing principle is that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a of the defendant's continuing to do what was sought to be enjoined between the time of application and the time of the trial. If the answer under this head is yes and if the defendant is in a financial position to pay the damages then no interlocutory injunction should be granted, however strong the plaintiff's case appeared to be at that stage. If the answer to that question is no, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do what he sought to be enjoined, he would be adequately compensated under the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a position to pay them, there would be no reason on this ground to refuse an interlocutory injunction.

It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. Various matters are taken into consideration to determine balance of convenience. These will vary from case to case."...........

What could be deduced from Lord Diplock's rulings in American Cyanamide Case are in fact tests to be adopted in dealing with an application for interim injunction. The tests could be summarized as follows:-

1. Is there a serious question to be tried?
2. Is damage an adequate remedy?
3. Where does the balance of convenience lie?
   
18. In applying the above tests, court is of the view that plaintiff has failed to establish any of that infavour of him, as discussed in my earlier paragraphs.
    
19. As such, the ex-parte injunction granted by court is hereby discharged, dissolved and set aside with immediate effect.
    
20. Plaintiff shall pay costs summarily assessed in a sum of $1,500.00 to 1st and 2nd defendants, $750.00 each to 3rd and 4th defendants, and $750 to 5th, 6th and 7th defendants.
    

Susantha N. Balapatabendi
JUDGE