IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0415 OF 2004

BETWEEN:

TRANSTEL LIMITED
PLAINTIFF

AND:

SUVA CITY COUNCIL
DEFENDANT

Ms P. Narayan for the Plaintiff
Ms T. Waqanika for the Defendant

DECISION ON DISSOLUTION OF
INJUNCTION GRANTED EX-PARTE

By an ex-parte motion the plaintiff had obtained interim orders restraining the defendant from removing any telephone booths within the City of Suva or dealing in any way with the telephone booths within the City of Suva.

The defendant has filed an affidavit in reply and the matter was heard inter-parte.

The case concerns the Drua telephone booths which have been erected in various places in Suva. The plaintiff wanted to instal the telephones in various places. On 23rd May 2003 the defendant wrote to the plaintiff stating conditions the plaintiff had to comply with. Neither party has produced the letter outlining conditions. It is agreed the defendant wanted ground rent of $55.00 per booth. The plaintiff considered the rental too high and sought to negotiate. No conclusive agreement was reached on the ground rent. However the plaintiff despite the lack of agreement on this vital issue erected forty-four booths in Suva.

No agreement having been reached as to ground rent, the defendant asked plaintiff to remove the booths. The defendant further threatened to remove the booths. The Council in fact removed two booths from its own property. The defendant submitted that the plaintiff has committed trespass as the booths were erected without its consent and the booths should be ordered to be removed.

The plaintiff first submitted that the only outstanding issue was ground rent. It said there was implicit consent as the Council knew of the design of the booths. The plaintiff in its affidavit deposes that other municipal centres are charging a maximum of $70.00 per annum.

The plaintiff knew that it could not just install the booths without paying any rents. It probably took it for granted that the defendant’s rates would be in par with what other municipalities were charging. The defendant gave no cause to the plaintiff to believe that. In the world of commerce rent is very important. It is the height of naivety on part of the plaintiff to erect telephone booths without knowing or having the rent sorted out. Granted these booths provide immense public utility to citizens of municipality but that does not derogate from the fact that the plaintiff ought to act in a commercially sensible manner.

The second argument put forth by the plaintiff was that even though the defendant is responsible for the good governance of the municipality, the provisions of the Post and Telecommunications Decree 1999 override certain powers given to town and city councils. The plaintiff relies on Section 21 of the Decree. Section 21 deals with compulsory acquisition of land by the licence holders. However this can only be done by authority of the Minister. There is no evidence before me of any authority from the Minister. It is an issue neither raised in the statement of claim nor in the affidavit in support. I do not consider that this section assists the plaintiff.

The issue before me is should I continue the interlocutory injunction granted ex-parte or dissolve it. In such situations the well-known principles laid in American Cyanamid v. Ethicon Ltd. – 1975 1 ALL ER 504 guide the courts.

The first issue is whether there are serious issues to be tried. The first issue is of consent. I am handicapped in this as the letter containing conditions is not before the court. Secondly the installation of forty-four telephones was probably not done overnight but over a period of time. I would like to know why the defendant did not protest then. Affidavits also refer to discussions between parties so some evidence of these discussions would be material.

Secondly some of the telephones are on private properties. The defendant submitted that any development within the municipality requires permission of the local authority and Director of Town and Country Planning Board. The issue remains whether this permission would be forthcoming if sought now.

Additionally, I believe the issue of application of Schedule 1 particularly Section 5 of the Decree needs to be closely looked at. I am of the view that the plaintiff has established an arguable case to the rights it claim.

The next issue is adequacy of damages and where does the balance of convenience lie. The plaintiff has given its undertaking as to damages but not given any other facts in support of its financial position. The plaintiff, however, is a subsidiary of Telecom Fiji Limited and I suppose I could take judicial notice of its ability to pay damages. In any event neither party has taken any issue on the ability of the plaintiff to honour its undertaking. Besides the damages, whatever the outcome of the case damages are unlikely to be substantial.

The plaintiff submits it is obligated by its licence to satisfy reasonable demands for telecommunication services in Fiji. As part of its exercise it has installed the druas. If I dissolve the injunction now without all the evidence having gone into the wash, third parties that is those who use or are likely to use these telephones would be affected while the defendant is unlikely to suffer any inconvenience. If the druas are pulled out, there would be inconvenience to the public at large. 

Finally if I may say that the plaintiff is there to provide a useful and easily accessible service to the public at large and to all those who visit Suva. The defendant as a municipal council is also a guardian of the welfare of ratepayers and residents of Suva. Easy access to telephone services is part of that welfare. From whatever papers have been filed, I note an element of stubborn pride in that neither party is moving from its declared stand. This is really not a case which should come to court but rather for parties to come to a compromise at a commercially sensible conclusion on what rent ought to be paid.

Accordingly pending trial or further order of the court, the interlocutory injunction is extended. I make no order as to costs.

[ Jiten Singh ]
JUDGE

At Suva
31st March 2005