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Fiji Sports Council v Fiji Electricity Authority [1995] FJHC 68; Hbc0361d.94s (7 April 1995)

IN THE HIGH COURT OF FIJI
At Suva
CIVIL JURISDICTION

CIVIL ACTION NO. 0361 OF 1994

Between:

FIJI SPORTS COUNCIL
Plaintiff

- and -

FIJI ELECTRICITY AUTHORITY
Defendant

Mr. S. Parshotam for the Plaintiff
Mr. Anu Patel for the Defendant

DECISION

This is an application by the defendant seeking an order for the dissolution of the interim injunction granted herein by KEPA J on 21 July 1994.

By Summons ex parte dated 21 July 1994 the Plaintiff (hereafter referred to as 'FSC') had applied to Court for an Order that the Defendant (hereafter referred to as 'FEA') "whether by itself or by its agents or servants or otherwise howsoever, be restrained from continuing with the construction of a power substation in the land known as 'Victoria Park' and comprised in Crown Lease No. 12274 located at the corner of Pender Street and Disraeli Road, Suva".

On the said 21 July KEPA J, upon FSC giving its undertaking as to damages, granted an interim order for injunction as prayed. The hearing inter partes was adjourned to 28 July 1994.

The Summons subsequently came before me for argument on 16 March 1995 after efforts between the parties to resolve their differences failed.

The Affidavits on which the FSC relies are one from PIO WONG sworn 20 July 1994, one from VIREN KAPADIA sworn 20 July 1994 and a further Affidavit in Reply of PIO WONG sworn 14 September 1994.

The FEA relies on Affidavits of NIZAM UD DEAN the then acting Chief Executive (now Chief Executive) of FEA sworn 28 July 1994 and 8 February 1995.

I shall now set out briefly the salient features of the said Affidavits.

The said PIO WONG in his affidavit sworn 20 July 1994 stated, inter alia, that (a) FSC is the registered proprietor of CL 12274 known as "Victoria Park" (hereafter referred to as 'VC'); (b) in August 1989 FSC agreed with FEA for the relocation of power transformer substation from corner of Knolly Street and Pender Street (which is behind the Squash Court on 'VC') to the corner of Pender Street and Disraeli Road and at that time the views of the residents were not taken into account by FSC; (c) FSC reconsidered its decision as soon as it received severe opposition in writing for the construction of the substation from the residents as soon as FEA began construction work on 1 March 1994; (d) as a result of the opposition he informed FEA to cease work on the site so that an alternative site "which was less prominent and open" could be decided upon between FEA and FSC; (e) on 8 March 1994 an alternative site was "agreed" upon, namely, behind the Tennis Court No. 5 next to Knolly Street and FEA would seek the necessary formal approval etc; (f) on 16 June 1994 FSC was informed that FEA is going ahead with the construction of the substation on the corner of Pender Street and Disraeli Road; (g) on 11 July 1994 construction work re-commenced and the residents again objected; (h) because of the opposition by the residents and because of breach by FEA of the "agreement" reached on 8 March 1994 the present proceedings were instituted.

In his second affidavit sworn 14 September 1994 PIO WONG, in reply to DEAN'S affidavit states, inter alia, that (a) it was "oversight on my part to show that the land on which FEA was constructing the new substation was leased by it from the Director of Lands"; (b) it was the "agreement" reached that "forms the basis of the plaintiff's claim against FEA".

In Reply to the Plaintiff's said affidavits, the said DEAN deposed, inter alia, that, (a) the proposed "substation" the subject matter of this action is "situated on Lot 2 S.O. 2695 and not on land known as "Victoria Park" comprised in CL 12274 being Lot 1 on S.O. 2695" and further that the "Director of Lands has agreed to issue a registered lease" over this Lot to FEA.

Before I proceed any further, I notice that there is an error in describing the proposed substation site. It should be Lot 2 on S.O. 2659 and Not 2695 and also in paragraph 3 of Dean's Affidavit it states "Lot 1 SO 2695" it should read Lot 2 on 2659.

He further deposed that (b) in 1989 "it was agreed between the Plaintiff, the Director of Lands, the Suva City Council and the defendant, the area now known as Lot 2 SO 2659be the site for the substation"; (b) on 4 March 1994

PIO WONG "unlawfully and without colour of right prevented and stopped the defendant's contractor from continuing with the construction of the substation"; (d) then on 8 March 1994 parties did negotiate the possibility of relocating the substation "provided all necessary approvals, consents and permits could be obtained within a reasonable time"; (e) he is advised that the Lands Department was not in favour of the relocation of the substation stating that the Department was in the process of issuing a lease over the said Lot 2 S0 2659; and it was only on 14 July 1994 that Mr. Queet, the Director of Lands, replied to FEA's inquiry of 18 March 1994.

In his second Affidavit, DEAN deposed that (a) neither FSC nor the residents, particularly MANI LAL KAPADIA who lives opposite the site, are willing to pay relocation costs of $24,000; (b) the F.E.A. has suffered and "is continuing to suffer loss of revenue as a consequence of its inability to construct the proposed electrical substation and to be put in a position to increase its Amp/Phase lease and is asking for the dissolution of the injunction".

I have given careful consideration to all the affidavits filed in this matter and to the arguments put forward by both counsel for their respective clients.

I have also considered the principles to be applied in considering applications for interlocutory injunction.

Mr. Patel has submitted there was a material non-disclosure by FSC when it made the application ex parte by not disclosing in its affidavit in support that the portion of land on which it is proposed to build the substation does not belong to FSC but to FEA.

He says that, this in itself is sufficient ground to dissolve the injunction.

I am entirely in agreement with him. In this regard the said PIO WONG has been less than frank. In fact his first affidavit has been very misleading. He had withheld a very material fact at the time of his application ex parte for an injunction. In the Writ of Summons in the Indorsement of Claim FSC is asking for, inter alia, a declaration "that the defendant is not entitled to construct a power substation on that site located at the corner of Knolly Street and Disraeli Road, Suva being part of the Plaintiff's land known as 'Victoria Park' and comprised in Crown Lease No. 12274". (underlining mine for emphasis)

It is not on the land known as "Victoria Park" that the substation is being constructed. It is on Lot 2 on Plan SO 2659 being 81 sq.m. at the corner of Pender Street and Disraeli Road.

It was on this misstatement that FSC obtained the interim injunction. Although after the error was pointed out in reply by DEAN, the said PIO WONG said "it was an oversight on my part".

In PERKINS MARITIME INTERNATIONAL PTY LTD v COMMONWEALTH BANK and ANOTHER (105 FLR (1991) Sup.Ct. of Northern Territory) ANGEL J said:

"When an ex parte application is made to injunct a party either to do something or refrain from doing something, courts will only make an order if satisfied that justice demands that a party be ordered to do or refrain from doing something before they are heard. Normally the court would require the party to be before it and be heard before any order is made at all. It behoves a plaintiff who seeks an order in such circumstances to be very frank with the court, not only to put its own case, but to put all relevant matters against the granting of the order sought. It is apparent in this case that there was not the full frankness before the learned Chief Justice that there ought to have been. I do not wish to dwell upon this. I do not wish to develop it. The principles are well-known. It is sufficient to refer to the well-known case of Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679, particularly at 681-682".

(underlining mine).

On the matter of non-disclosure the headnote to THOMAS A. EDISON LIMITED and BULLOCK (15 CLR p.679) states:

"It is the duty of a party asking for an interlocutory injunction ex parte to bring before the Court all facts material to the determination of his right to that injunction, and omission to bring any material facts before the Court is a ground for dissolving an injunction so obtained".

I refer to the following passage from the judgment of ISSACS J in BULLOCK (supra) at p.681-682 on the duty of disclosure of material fact:

"Dalglish v Jarvie (1), a case of high authority, establishes that it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall".

In this case it will not do for PIO WONG to say it was "oversight" particularly when it was so important for the purposes of application ex parte although I am not unmindful of the fact that not all facts are material which would lead to summary discharge of an ex parte injunction. What are material facts has been put by RALPH GIBSON L.J. in BRINKS MAT LTD v ELCOMBE (1983) 3 AER 188 at 192-193 thus:

".... the material facts are those which it is material for the judge to know in dealing with the application as made; materiality as to be decided by the Court and not by the assessment of the applicant or his legal advisors".

Also on the subject of disclosure of material facts on application ex parte, in RAUZIA MOHAMMED d/o Rahimat Ali and ANZ BANKING GROUP (Civ. App No. 66/84) Fiji Court of Appeal said:

"The guarantee of 9th July, 1982 gives rise to two important matters. First, it was not disclosed in the evidence tendered in support of the ex parte application for the interlocutory injunction which was granted on 26th March, 1984. This material did not come to knowledge until after the ex parte order had been made. But it is before us now and in our view, it is warrant for dismissal of the appeal without further ado. In Dalglish v. Jarvie [1850] EngR 688; 2 Mac & G. 231, 238 it was held that:

"It is the duty of a party asking for an injunction to bring under the notice of the court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward."

The statement of the law was cited with approval by Lord Cozens - Hardy M.R. in Rex v. Kensington Income Tax Commissioners ex parte Princess Edmond de Polignac (1917) 1 K.B. 486 at 504.

And in the Republic of Peru v. Dreyfus Bros. & Co. 55 L.T.R. 802, 803 Kay J. stated the law in this way:

"I have always maintained, and I think it most important to maintain most strictly, the rule that, in ex parte applications to this court, the utmost good faith must be observed. If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this court the importance of dealing in good faith with the court when ex parte applications are made."

That passage was cited with approval by Scrutton L.J. in Rex v. Kensington Income Tax Commissioners (supra) at page 514."

The effect of non-disclosure in this case was that my learned brother was not afforded the opportunity of considering the real circumstances, and of exercising his discretion upon it. It follows that the failure to disclose the true ownership of the property in question was material and could have affected the manner in which the Court exercised its discretion.

All that I have stated hereabove boils down to this that in an application ex parte the party seeking relief in which an order affecting the right of another is involved, without that party having the opportunity to be heard, then the applicant must show utmost good faith and make a full disclosure of all relevant material which might have a bearing on the Court's decision. In the absence of such disclosure, as in this case, the Court was induced to make an order grossly prejudicial to F.E.A.. Had the Court been in possession of this fact which was not disclosed and which is now before the Court the interim injunction would not have been granted.

Now that I find that the ex parte order was obtained without regard to the principle involved, it was in my view improperly obtained, then it should be discharged. (THE REPUBLIC OF PERU v DREYFUS BROTHERS AND CO 55 LTR 803 & 803.

What is the effect of concealing something relevant has been stated by LORD COZENS-HARDY MR in REX v KENSINGTON INCOME TAX COMMISSIONERS, ex parte PRINCESS EDMOND DE POLIGNAC (1917 1 KB 486 at 506) thus:

"If you make a statement which is false or conceal something which is relevant from the Court, the Court will discharge the order and say "You can come again if you like, but we will discharge this order, and we will apply the general rule of the Court to applications like this." There are many cases in which the same principle would apply. Then it is said "That is so unfair; you are depriving us of our right to a prohibition on the ground of concealment of misstatement in the affidavit." The answer is that the prerogative writ is not a matter of course. The applicant must come in the manner prescribed and must be perfectly frank and open with the Court." (underlining mine)

Before concluding this aspect of the matter I have not lost sight of the fact that the grant of an interim injunction is a remedy which is both temporary and discretionary.

Therefore, in considering the granting of an injunction, in addition to what I have already said, I hold that the Plaintiff has no legal right over the property in question, namely, Lot 2. It is a fundamental rule that the court will grant an injunction only to support a legal right (per ORMROD J. in MONTGOMERY v MONTGOMERY 1965 P 46) Also where the Plaintiff has no legal right recognizable by the Courts, there is no power to grant him an interlocutory injunction (GOURIET v UNION OF POST OFFICE WORKERS [1977] UKHL 5; (1977) 3 WLR 300).

For the reasons given hereabove the interim injunction should be dissolved.

Before leaving the matter I should make my comments on the subject of the alleged "agreement" between the FSC and FEA.

Mr. Parshotam argues in effect that FEA should have honoured the understanding that was reached between FSC and FEA to obtain all necessary consents and approval for the construction of the substation on the alternative site. By memorandum dated 16 June 1994 FEA informed FSC, inter alia, that "later developments in an attempt to secure that particular site did not go well in our favour" and for the reasons it gave it stated that it "has now decided to go ahead with the construction of the substation on the site approved at the corner of Pender and Disraeli road". There was nothing to legally bind the FEA to adhere to the said arrangement to build on an alternative site. The land for the substation had been approved to FEA sometime ago for the purpose of substation by the Director of Lands and a lease is to issue to them.

In these circumstances and on the facts of this case I fail to see how FEA can legally be prevented from proceeding with the construction work on land which legally belongs to it by injunction. The claim '(A)' in the Writ of Summons is, as has now been revealed, untrue stating that the substation is being built on FSC's land. I have already dealt at length on this aspect hereabove.

Initially when FSC agreed to the present site it says that it had not taken the views of the residents "in the corner of Pender Street and Disraeli Road". Upon receiving "severe opposition" from the residents when FEA commenced construction work on 3 March 1994 PIO WONG told FEA to cease work. The residents are not a party to this action. What right the residents have to object and what they can do to stop construction on land which belongs to FEA is not for me to decide in this action. PIO WONG's affidavit clearly shows when he says that upon "severe opposition" from the residents he "informed FEA to cease work" that he took up the cudgel more so for the residents than for FSC as it had already agreed to the said Lot 2 for the site for substation although later arrangements were discussed following on the heels of the said opposition. The outcry by the residents is a red herring introduced by FSC and this does not in any way boost the Plaintiff's argument for the injunction to continue.

Accordingly, for these reasons, the interim order for injunction, should be and is hereby discharged, and that the Plaintiff's application for interlocutory injunction to continue against the Defendant should be and is hereby dismissed with costs which is to be taxed if not agreed.

D. Pathik
Judge

At Suva
7 April 1995

HBC0361D.94S