Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Druma v Nakete [2008] FJHC 94; HBC214.2007 (14 April 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

HBC No. 214/2007

BETWEEN

SEVANAIA DRUMA the authorised spokesman
and acting on behalf of Malaqali Nanuku,
Nanuku settlement, Natabua, Lautoka
Plaintiff

AND

APISAI NAKETE,
ANA ROKOSAU,
MERESIMANI KURO and
TANIELA VUKI of Natabua, Lautoka
First Defendant

AND

NATIVE LAND TRUST BOARD
a duly constituted body
under the Native Land Trust Act under Cap 134
Second Defendant

Appearances:
Plaintiffs: Mr Nacolowa
First Defendants: Mr Naivalu
Second Defendant: Ms K. Kabu

Date of Hearing: 26/03/08
Date of Judgment: 14/04/08

JUDGMENT

1. Introduction – Notice of Motion

In this proceeding a Motion originally filed ex-parte by the Plaintiff seeks injunctions. The ex parte Notice of Motion was ordered to be heard inter-partes.

1.1 There is also a Summons filed by the First Defendants seeking to strike out the substantive action (begun by Writ and Statement of Claim) insofar regards them. Although there is no strike out Summons by the Second Defendant (the NLTB), the NLTB nonetheless in its Affidavit in Response (on the Motion) says that the NLTB has performed its duties and ‘should be stuck out as defendants in this case’.

1.2 The application by the Plaintiff, Sevanaia Druma, is for the following injunctions:

(a) An injunction restraining the Second Defendant from giving any advance payment/loan of the Mataqali Nanuku rental proceeds or any money collected by the Board to the First Defendant until further Orders of this Court.

(b) An injunction restraining the Second Defendants from paying out rental proceeds and/or any money of the Mataqali Nanuku collected by the Second Defendant to the Mataqali Nanuku until further Orders of this Honourable Court.

(c) Such further order or Orders this Honourable Court deems just.

(d) Cost of this action.

1.3 The principles set down in American Cyanamid Co. v. Ethicon Limited (1975) A.C.396 are accepted by this Court as governing the determination whether or not to grant an injunction: Mataqali Namatua v. NLFC and 3 Ors (No. ABU0020 of 2004S, 4 March 2005)

1.4 At the outset, I observe the stricture set out in American Cyanamid by Lord Diplock that 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 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: at 407

1.5 The three matters to which the Court must address itself in respect of the present application are, per American Cyanamid:

• is there a serious issue to be tried;
• are damages an adequate remedy;
• if not, where does the balance of convenience lie.
  

1.6 Here, the injunctions sought relate to assets coming into the custody and trusteeship of the NLTB. In that sense – that is, that assets or monies are involved – it appears there is some contention that Mareva injunctions are sought. In Aotearoa/New Zealand it has been said that the standard to be reached if a Mareva injunction is to issue is higher than that for an ‘ordinary’ injunction. In Bank of New Zealand v. Hawkins [1989] NZHC 198; (1989) 1 PRNZ 451 the Court said the ‘threshold requirement’ of a ‘good arguable case ... is more onerous than that normally applied in the case of interlocutory injunctions of a serious question to be determined’. In Australia the standard has been set variably as ‘a reasonably arguable case’, ‘ a serious question to be tried’, ‘a prima facie case’ and ‘a good arguable case’: Biscoe, Mareva and Anton Piller Orders – Freezing and Search Orders, Butterworths, Sydney, NSW, 2005, p. 5

1.7 In addition to the standard or threshold requirement, for a Mareva injunction, it must be shown that assets of the defendant exist within the jurisdiction to which the orders can apply, and that there is a ‘real risk that the defendant will dissipate or dispose of assets so as to render himself “judgment proof”’: Bank of New Zealand v. Hawkins

1.8 Insofar as the latter two requirements are concerned, the NLTB:

• has monies or will have monies to be dispersed to the Mataqali Nunuku, and these monies are and will be within the jurisdiction; and
  
• unless distrained from doing so, will disperse these monies in accordance with the principle which has been followed to date, namely to the First Defendants which is the matter in issue here and in the substantive proceeding.
  

1.9 I do not attribute to the NLTB a motive of seeking to render itself ‘judgment proof’ by dispersing monies as aforesaid. However, as will be clear from the setting out of the parties positions below, the monies will be (as noted) dispersed so that the Plaintiff’s claim, if successful, will be undercut to the extent that monies received by the NLTB are so disbursed. It seems to me appropriate in all the circumstances to take this into account when considering whether or not injunctions in the nature of those requested by the Plaintiff should issue. I should, however, say at this point that although I was referred by the submissions to Sharma v. Akhil Holdings Ltd [2006] FJHC 82; HBC155.2002L (15 December 2006) which relates to Mareva injunctions, I am not convinced that it is necessary to meet the Mareva standards. This is not a case where assets have nothing to do with the claim before the court, so have to be ‘seized’ albeit disconnected from the issues which are the subject of the litigation: Mercedes Benz AG v. Leiduck [1996] AC 284, at 306D (PC) Rather, as noted, the assets in question are the assets arising directly in the Plaintiff’s claim. They are at the centre of the dispute. Hence, the ‘ordinary’ principles of American Cyanamid apply. If, however, I am wrong and the Mareva principles should be applied, then they have been and are being taken into account and addressed in this judgment.

1.10 The parties are in dispute as to whether there is a ‘serious issue to be tried’.[1] That they are in dispute on this indicates that there is, at least, a dispute and a substantial one between the Plaintiff and the Defendants. This does not mean that there is a serious issue to be tried. However, it does mean that it is necessary to look at the substantive proceeding for, as noted, both the First Defendants and the NLTB refer to striking out, the First Defendants as to the substantive proceeding and the NLTB at least in relation to the Motion for injunctions.

1.11 Bearing in mind Lord Diplock’s observation that a resolution of conflicts on facts and claims in Affidavits or difficult questions of law is not for the Court at this stage, I set out the principal documents in the substantive proceeding first. These illustrate that there are substantial disputes as to facts, claims and law. They also illustrate that on the Plaintiffs’ part, at least, there appears to be a high level of emotion and distress.

1.12 That a party’s material exhibits emotion and distress, whatever the level, does not mean that they have a ‘winnable’ claim or a ‘serious issue to be tried’ or even an arguable case. The role of courts is to administer, interpret and apply the law. Sometimes the law does deal with, and sometimes adequately deal with, matters involving substantial emotion and distress and can even at times ameliorate them. Whether this is an occasion where the law may play a part and the Court has a role is the question in issue.

2. History - Motion for Injunctions

The file indicates that on 13 July 2007 the ex parte Notice of Motion came before His Lordship Justice Connors who declined the ex parte application, directing that it be served and the matter relisted for 31 July 2007. Counsel for the Plaintiff is noted as having said ‘payment made’ and there was ‘no urgency’.[2] On 31 July 2007 Counsel appeared for the Plaintiff however there was no appearance for the Defendants.

2.1 On 31 July, orders were made for the filing of a Supplementary Affidavit, the matter to be relisted for 17 September 2007. The record is unclear as to what occurred on that day, except that there is a note that both the Plaintiff and Defendant[3] were represented and the matter was relisted for 18 October 2007. Orders for filing and serving an Affidavit in Reply and for relisting on 26 October 2007 were made. On that day Counsel appeared for the Plaintiff and Second Defendant and a note appears to the effect that monies are held by the NLTB and this is an ‘urgent case ... what has happened’. The matter is then relisted for 7 November 2007, with a note indicating that there is an ‘injunction application to hold the money in NLTB’ and the NLTB is to file submissions by 16 November 2007, the matter being adjourned to 23 November 2007. The Plaintiff had filed submission on 6 November 2007.

2.2 On 27 November 2007 Counsel appeared for the Plaintiff, the First Defendant and the Second Defendant. The matter was adjourned to 21 January 2008, with all parties required to file and serve written submissions by 31 December 2007.

2.3 The matter came before me for the first time on 21 January 2008. On that day, again all parties were represented. The Plaintiff had filed submissions in accordance with the Court’s orders, however, the First and Second Defendants requested leave to file submissions out of time, which was granted, with the Plaintiff accordingly provided with a new date to file and serve any written reply. I now have before me submissions from all parties.

3. History - Summons to Strike Out

As earlier noted, this Summons was filed on 8 November 2007. It seeks an order the Plaintiff’s Inter-parte Notice of Motion and Writ of Summons and endorsed Statement of Claim be stuck out under Order 18 Rule 18(1)(a) of the High Court Rules 1988, under the inherent jurisdiction of the Court, on the ground:

(a) That it discloses no reason[able] cause of action against the 1st Defendant.

3.1 Costs against the Plaintiff are also sought.

3.2 There appears to be no further material relating to this Summons and the submissions before me are addressed to the injunction application rather than to the strike out, except that the First Defendants say that the fact that no injunction is sought against them supports their proposition that there is ‘no complaint against them from which a serious issue would likely arise’ and there is ‘not a single serious question to be tried’ as against them:

In essence therefore, the First Defendants are unnecessary litigants. This explains why there is currently a Summons to Strike Out dated 8th November 2007 filed by the First Defendants before the Honourable Court that is short of a hearing date: First Defendants’ Written Submissions, pp. 2-3

3.3 As noted earlier, the NLTB states that the motion for injunctions should be struck out as against them.

4. The Writ and Supporting Material

On 6 July 2007 the substantive proceeding commenced by way of Writ. The Statement of Claim set out the following contentions:

1. THAT the Plaintiff is a member and nominated spokesman for the Mataqali Nanuku, Yavusa Saru of Natabua, Lautoka, District of Vitogo, Province of Ba.

2. THAT the first named Defendant is the Turaga ni Mataqali Nanuku is also the father of the three named Defendants herein.

3. THAT Second Defendant is sued in its capacity as Trustee of all the native lands in this country including that the Mataqali Nanuku.

4. THAT Mataqali Nanuku is comprised of three Tokatokas, Naqevoli (extinct), Vunivedugu (extinct) and Korovou the only existing Tokatoka of the Mataqali.

5. THAT the members of Mataqali Nanuku excluding the family of Turaga ni Mataqali the Defends herein are only aware of the rental proceeds from the Tokatoka Korovou which amount to about $4,000.00 plus every 6 months.

6. THAT the Second Defendant without the authority of the majority members have been advancing money to the First Defendants illegally.

7. THAT the First Defendants have no authority whatsoever to advance the rental proceeds without the content of the majority members of the Mataqali.

8. THAT the First Defendant has absolutely no say in the Mataqali members’ money since he receives his shares of the proceeds separately from the members of the Mataqali.

9. THAT the First named Defendant is equally guilty of abusing his position by colluding with his family members and the Second Defendant by repeatedly advancing Mataqali members’ monies for their own use only.

10. THAT the majority members of Mataqali Korovou excluding the Turaga ni Mataqali and his family the Defendants herein are not aware of the proceeds from the extinct Tokatokas namely Vunivedugu and Naqevoli.

11. THAT the rental proceeds form the extinct Tokatokas are considerably greater amounting to well in excess of $45,000.00 per years.

12. THAT the First Defendants have also denied the majority members of the Mataqali of their shares of the money from the consideration paid by the Tenants for the renewal of their leases.

13. THAT the First Defendants have also denied the majority members of the Mataqali of their views on the subject of expiry leases.

14. THAT the First Defendants somehow without any legal basis whatsoever have been the beneficiary of the rental proceeds from the extinct Tokatokas herein excluding the majority members of the Mataqali Nanuku.

15. THAT the First and Second Defendants are equally to be blamed for the fraud of the rental proceeds from the extinct Tokatokas of Mataqali Nanuku.

PARTICULAR OF FRAUD

(a) The Second Defendant is fully aware that the rental proceeds from the extinct Tokatoka are for the benefits of the whole members of the Mataqali Nanuku and not for the First Defendants only.

(b) The First Defendants are fully aware that the rental proceeds from the extinct Tokatokas are for the benefit of the whole members of the Mataqali and not for them only.

(c) The First Defendant could not and would not have done it by themselves to deny the majority members of the rental proceeds from the extinct Tokatokas of Mataqali Nanuku.

(d) The First and Second Defendant by collusion and through malice and deceit on their part excluded the majority members of the Mataqali from the payment of the rental proceeds of the extinct Tokatokas of Mataqali Nanuku.

(e) The majority members of Mataqali Nanuku as a result have been unduly prejudiced inconvenienced, hoodwinked and robbed of their rightful shares of their proceeds for a long time – about 3 years.

(f) The First and Second Defendant are guilty of fraud and deceit of denying the majority members of Mataqali Nanuku of receiving their rightful dues from the rental proceeds on the extinct Toka Toka lands.

(g) The First and Second Defendants ought to be fully blamed for their fraud and dishonesty on the majority members of Mataqali Nanuku.

That the conduct of the First and Second Defendant are unlawful and must be stopped forthwith immediately.

WHEREFORE the Plaintiff prays for:

(a) An injunction restraining the Second Defendant from giving any advance to the First Defendants until further orders of this Honourable Court.

(b) An injunction restraining the Second Defendant from paying out any rental proceeds to Mataqali Nanuku until further Orders.

(c) An Order for the First Defendants to pay to this Honourable Court all the advance payment made to them without the knowledge of the majority members.

(d) Such further Order this Honourable Court deems just.

(e) Costs of this action.

4.1 In the Affidavit in Support of the ex parte Motion (Supporting Affidavit), the Plaintiff (Sevanaia Druma) says amongst other matters that:

• the Mataqali Nanuku comprises three (3) Tokatoka, namely Vunivedugu (extinct), Naqevoli (extinct) and Korovou, the surviving Tokatoka of the Mataqali: Supporting Affidavit, para 2
  
• custom and practice mean that extinct Tokatoka lands automatically become the proprietorship of surviving Tokatoka within the Mataqali. This means Tokatoka Vunivedugu and Naqevoli’s lands ‘will become the additional lands of the surviving members of Tokatoka Korovou in common ownership’: Supporting Affidavit, para 3
  
• according to the statutory provisions of the Native Land Trust Act,[4] the Turaga I Taukei (the Chief), the Turaga ni Yavusa (Head of Yavusa) and the Turaga ni Mataqali have their shares of the rental proceeds paid out separately by the Native Land Trust Board (NLTB – the Second Defendant) ‘during the distribution of such proceeds from the payment to the members of the Mataqali’: Supporting Affidavit, para 5
  

4.2 Further, it is ‘absolutely clear to’:

... both the Mataqali members and the ... NLTB that the shares of the Mataqali members are the entitlement for all such members in equal shares excluding the three heads of the Yavusa ...; and

... the Mataqali Members and more importantly to the ... NLTB ... in their position as Trustee, that payment out from the Mataqali members’ account cannot be made only by few members of the Mataqali without the authority of all the members and that the NLTB is duty bound to see that such payment can only be made by proper authorization after complying with procedures recognised by law: Supporting Affidavit, paras 5 and 6

4.3 Particulars of payments said to have been made from the Mataqali Nanuku’s account ‘with the collusion’ of the First and Second Defendants, both knowing it ‘to be unlawful and without any justification whatsoever and without the knowledge and consent of the majority members of the Mataqali’ are listed at paragraph 7, with date, amount and ‘drawer’ appearing. The table shows ten payments having been made from1 September 2005 through to 27 April 2006, mostly to Ana Rokosau & Family,[5] with two listed as being made to M. Kuro.[6] The Supporting Affidavit annexes various letters sent to the NLTB and others, signed by members of the Mataqali Nanuku, raising these concerns. A request was made in writing to the NLTB to ‘give the details of advances made by the First Defendants’ however this did not provide a satisfactory response.

4.4 An undertaking as to damages is stated in the Supporting Affidavit, along with statements that:

• the NLTB ‘ought take responsibility ... as they are the one who control the finance and a lot of responsibility is demanded of them in their conduct of the affairs of Fijian Lands by giving out the details of advances made by the First Defendants’;
  
• the Family of the Turaga ni Mataqali Mr Apenisa Nakete[7] ‘has actually enjoyed a 4 years gross abuse of deliberately using the rental money which money were the property of the whole members and they did not care at all in using the Mataqali members money. This gross abuse must stop’;
  
• the first Defendants have ‘unlawfully controlling the finances of the Mataqali Nanuku and lease renewals in excluding the majority members from taking their shares in the money and having their views heard in the lease renewals’: Supporting Affidavit, paras 14-16
  

4.5 The Supplementary Affidavit of Sevanaia Druma attaches as Annexures copies of the documents attached as Annexures to the Supporting Affidavit, the Supplementary Affidavit providing the English translations.

5. The Defence and Supporting Materials

The Writ, ex parte Notice of Motion and Supporting Affidavit of Sevanaia Druma were served on the Defendants on Monday 30 July 2007. On that day a Supplementary Affidavit of Sevanaia Druma was served on the Second Defendant and also on the first named of the First Defendants. On 8 August 2007 the Second Defendant, the Native Land Trust Board (NLTB) filed an ‘Acknowledgment of Service’ for receipt of the Writ of Summons and stated an intention to contest the proceedings and to apply for a stay of execution against any judgment entered by the Plaintiff. There was no response from the First Defendants until a notice of appointment of Solicitors filed 8 November 2007 together with the Summons seeking the striking out.

5.1 The NLTB filed on 12 October 2007 an Affidavit in Reply (Reply Affidavit) opposing the Motion for injunctions and responding to the Supporting Affidavit. The Reply Affidavit of Seremaia Vueti, Senior Estate Officer employed by the NLTB was served on the Plaintiff on 12 October 2007 and upon the First Defendants on 16 October 2007.

5.2 For the NLTB Seremaia Veuti denies that Sevanaia Druma is ‘the appointed spokesman of Mataqali Nanuku of Yavusa Saru’ and denies his having ‘the mandate of the majority members of the ... land owning unit (... the LOU)’, whilst agreeing that the Mataqali Nanuku ‘originally comprised of three Tokatoka’s, two of which is extinct’ and that custom and practice make any extinct Tokatoka lands automatically the proprietorship of the surviving Tokatoka within the Mataqali in common ownership’: Reply Affidavit, para 7

5.3 As for the Native Lands Trust Act (Cap 134), Seremaia Veuti admits that it ‘determines the distribution of lease monies to the various sections, and this is separate and distinct from the shares of the proprietary unit or its members’, and that the shares of the Mataqali members ‘are the entitlement for all such members in equal shares excluding the three heads of the Yavusa: the Turaga I Taukei (the chief), the Turaga ni Yavusa (Head of Yavusa) and Turaga ni Mataqali: Reply Affidavit, para 8

5.4 The contention that it is ‘absolutely clear’ to the Mataqali Members and the NLTB ‘as Trustee, that payment out from the Mataqali members account cannot be made only by few members of the Mataqali without the authority of all members and that the NLTB is duty bound to see that such payment can only be made by proper authorization after complying with procedures recognised by law’ is said to be ‘unclear’ so ‘cannot be admitted or denied’ and the Plaintiff is put to strict proof: Reply Affidavit, para 9

5.5 Strict proof is required also as to paragraph 7 of the Supporting Affidavit, in alleging collusion between the First Defendants and the NLTB ‘to pay out rental proceeds from the Mataqali Nanuku’s account, which they both knew to be unlawful and without any justification whatsoever and without the knowledge and consent of the majority members of the Mataqali’. The NLTB ‘strongly denies’ the contentions, stating that distribution of lease monies and advances ‘have been made throughout the years’ by the NLTB within the Regulations of Cap 134: Reply Affidavit, para 10

5.6 Similarly with paragraph 8 of the Supporting Affidavit, which is ‘strongly denied’ by the NLTB, with the Plaintiff being put to strict proof as to the contention that the payments alleged and listed in particulars of paragraph 7 ‘have been made unlawfully for a long time without proper authorization’ with ‘majority members being denied their rightful shares’: Reply Affidavit, para 11

5.7 So too with paragraph 9 alleging ‘gross abuse of protocol and fraudulent activities’ by the First Defendants in ‘unlawfully advancing monies ... meant for all members of the Mataqali’ and taking it ‘upon themselves for their personal use’: the Plaintiff is put to strict proof. The NLTB maintains Sevanaia Druma ‘does not have the mandate of the majority of the Mataqali members, and ... strongly denies that the advancing of monies to members of the LOU was unlawful’: Reply Affidavit, para 12

5.8 As to paragraph 10, the NLTB ‘strongly denies any allegations of collusion and/or fraudulent activities’, requiring strict proof and says that the ‘procedures of giving advances and the distributing of lease monies were properly followed and adhered to’: Reply Affidavit, para 13

5.9 The NLTB says:

• the office of the Roko Tui Ba ‘only endorses applicants and their membership of an LOU, however, ... this does not automatically grant any right to lease monies and or any other distribution’: Reply Affidavit, par 14
  
• ‘it is within the plaintiff’s prerogative to seek legal assistance, however the [NLTB] has no knowledge of loss of earnings as stated, so cannot admit nor deny the contents’ of paragraph 12 alleging such loss: Reply Affidavit, para 15
  
• it replied to the queries of the Plaintiff, referring to SD7 which is a letter from the NLTB dated 24 February/April 2007, and ‘clearly stated in the Fijian vernacular that further explanation would follow’. Further: ‘This is not a denial nor a coverup as stated therein. The [NLTB] therefore denies’ this paragraph, putting the Plaintiff ‘to strict proof’: Reply Affidavit, para 16
  
• it ‘maintains ... it has adhered to the laws that regulate its affairs with regard to native land and the various LOU; thus [it] denies the contents of paragraph 14’: Reply Affidavit, para 17
  
• it ‘distributes lease monies in accordance with the Native Lands Trust Act and its regulation. Thus, its duties is to ensure that the individual shares are given the TT, TQ, TM and that the reminder distributed to the LM. The Board’s duty does not, however, extend to the individual distribution of the LM, therefore ... the [NLTB] cannot admit nor deny’ the contents of this paragraph: Reply Affidavit, para 18
  
• it ‘has no knowledge’ of the contention that the First Defendants ‘have unlawfully controlling the finances of the Mataqali Nanuku and lease renewals in excluding the majority members from taking their shares in the money and having their views heard in the lease renewals’, so cannot admit nor deny: Reply Affidavit, para 19
  

5.10 The NLTB contests the undertaking as to damages, saying that the ‘serious allegations raised against it ... cannot be assessed at this stage; thus the [NLTB] puts the plaintiff to strict proof of the contents’: Reply Affidavit, para 20

5.11 Further, ‘the allegations and claims ... cannot be substantiated against the [NLTB] based on the facts, the case law and the law regulating the [NLTB’s] duties’ and ‘the duty of the [NLTB] rests when the shares of the proprietary unit is given to the members or its representative. This duty does not extend to ensuring that each individual receives his/.her share’. Annexure ‘SV 1’, Laisa Rawale v. Native Land Trust Board and Native Land & Fisheries Commission Civil Action No. HBC 557 of 2004 (22 June 2005) is provided in support of this contention. It is further stated that the NLTB ‘has performed its duties accordingly, and should be stuck out as defendants in this case’, whilst the motion and Supporting Affidavit are (as noted) ‘insufficient to warrant an injunction(s) against’ the NLTB, so to ‘be stuck out with costs ... on an indemnity basis’: Reply Affidavit, paras 21, 22, 24

6. Plaintiff’s Affidavit in Response

Amongst other matters, in response to Seremaia Veuti’s Affidavit in Reply, Sevanaia Druma says:

• Seremaia Veuti is an employee of the NLTB and ‘does not live amongst the members of the Mataqali and thus is ill informed’ and is incorrect in denying that Sevanaia Druma is appointed spokesman of Mataqali Nanuku of Yavusa Saru and has the mandate of the majority members of the land owning unit: Response Affidavit, para 4
  
• the NLTB is ‘by reason of its unilateral conduct ... the cause for discord and disunity amongst Landowning Units as it is unable to comprehend that due to its laxity and unfairness, landowners are compelled to be involved in never ending dispute’: Response Affidavit, para 8
  
• that the NLTB’s conduct and administration of its affairs ‘has given rise to problems posed before the Plaintiff’s Mataqali members and the First Defendants’: Response Affidavit, para 9
  
• in relation to advancing monies, the NLTB ‘has acted with bias and reckless conduct’: Response Affidavit, para 10
  
• the rent monies ‘belong to the Tokatoka to the extent of 70% and ... of this amount there shall be no guarantee for loan to any other person except for the benefit of the members collectively as a whole and not an individual or his immediate family members, irrespective of the Borrower’s rank or position’: Response Affidavit, para 11
  
• the rent monies ‘belong to the Tokatoka/Malaqali members and if the lease monies do not belong to these people, which assertion is objected [to][it is wrong for the NLTB] to unilaterally dispose of its whim under its own interpretation of the laws is misconceived’: Response Affidavit, para 12
  
• the Plaintiff has ‘exercised [the] legal and constitution right to seek redress due to lack of good management by the [NLTB] in the administration of’ the NLTB’s affairs: Response Affidavit, para 13
  
• the NLTB has ‘failed to provide full and better explanation which It has failed and/or neglected to do ...’: Response Affidavit, para 14
  
• the NLTB has ‘failed and/or neglected to perform its dues in accordance to the Act which created it’: Response Affidavit, para 15
  
• the NLTB has ‘not complied with its duties and the LM’s monies were not paid to LM as a whole’: Response Affidavit, para 16
  
• the NLTB ‘was informed of the 1st Defendant’s conduct. The 1st Defendant is not entitled to collect goodwill for the renewal of the leases and the 1st Defendant is basically a first among equals and therefore the 1st Defendant is not entitled to collect and retain these monies except is share from the lease monies. It is fraud and tantamount to conversion for personal use’: Response Affidavit, para 17
  

6.1 In response to the NLTB’s contention that there is ‘insufficient undertaking as to damages’ noting the ‘serious allegations raised against [the NLTB] by the plaintiff cannot be assessed at this stage; thus the [NLTB] puts the plaintiff to strict proof’, Sevanaia Druma says:

• the land is owned ‘in accordance to native custom and the natives’ own laws as that prevails’ re matters per the lands ‘amongst the native Fijians’, by reference to section 6(b) of the Constitution;
  
• the NLTB is a creature of statute, its duties and obligations ‘well articulated’ and must ‘abide by statutory provisions’;
  
• the Plaintiff and First Defendants ‘are native Fijians and both parties are fully aware of their customary law and the obligation binding each party’ and the NLTB ‘must comply with the statute and accordingly discharge its duties without favour or fear irrespective of the position of the parties concerned, unfortunately, this is not always the case’, the NLTB’s conduct ‘instead of being a blessing to the natives ... has become a curse’;
  
• the action is amongst members of the Mataqali Nanuku at Nanuku Settlement and ‘the dispute has surfaced’ because of the First Defendant’s ‘reneging and/or violating his customary role, instead of leading the people, he has taken it for granted as Turaga ni Mataqali that he owns virtually all rights to do with the lands as he wishes. As Turaga ni Mataqali, it is his traditional role to look after the welfare of his members and not to [sacrifice] the members for his own and his [family’s] welfare. In the Origin of the native custom, there was no dollars [money] at any time until Fiji was ceded to Britain unconditionally’;
  
• by this action neither party can win or lose anything. ‘The whole purpose ... is to resolve the dispute’ and the First Defendants ‘shall not unilaterally take away and expend funds unilaterally for his own needs. The consent to extend and/or renew lease is the right of the members as a whole’ and not the First Defendant alone ‘which he has been doing and the [NLTB] by acting on such approval and renewing the lease has encouraged’ the First Defendant ‘to continue in defiance. It is tantamount to aiding and abetting an unlawful action or conduct which fuels discord and dissent amongst the Landowning Units’;
  
• inadequacy of the undertaking in the matter is amongst one and the same Mataqali, does not arise at all. They are not owners of leasehold land and the subject land is owned by the Mataqali or a sub-division of the Mataqali. The Property Law Act and the Land Transfer Act does not apply’ and the rights of the First Defendant ‘are not subject to these law and thus there is no loss of gain by either party’. However, the NLTB by ‘Section 4 of the Native Land Trust Act is in control of all native lands and to administer such lands for the benefit of the native owners’;
  
• the NLTB’s ‘failure and neglect to see peace prevails amongst native is remote as “it is the interest of the native owners” that must prevail as the result of good administration’ of the NLTB;
  
• in the interest of the land owners as a whole, the NLTB ‘comply with the Summons as prayed’. The NLTB’s revenue ‘is collected from administration of native lands and created for that purpose’;
  
• by withholding rent payments ‘this Court will decide where the fault lies and this action be heard or alternatively be resolved by the parties before one of its institutions. Further the rent monies belong to the members as a whole’ and the First Defendants ‘having collected his share as Turaga ni Mataqali is not entitled to further sums for granting his own consent for renewal of leases and accepting or demanding goodwill in his capacity as Turaga ni Mataqali. There is no provision for such conduct; this is deemed a high handedness and oppressive’;
  
• that the question of damages ‘does not arise in action as there is no losing party’ and the NLTB ‘is required by law to abide the decision of the Court if an Order is granted in terms as prayed and therefore is no cause of action against the [NLTB]’: Response Affidavit, para 18
  

6.2 It is contended that the case law cited by the NLTB relates to rent accrued to extinct Mataqalis. As the ‘present case is totally different [t]he case law does not apply’: Response Affidavit, para 19

6.3 As to the NLTB’s contention that in the distribution of lease monies the NLTB’s duty lies only with giving shares of the proprietary unit to the members or its representative, not ensuring each individual receives a share, the reply is that there being a dispute lodged with the NLTB, the NLTB ‘should take heed of the dispute and should not distribute the monies’ and those monies should be deposited with the Court rather than the NLTB ‘adjudicate when in fact it cannot conduct its affairs fairly and justly in the interest of landowners as a whole’: Response Affidavit, para 20

6.4 As to the NLTB’s position that the claim should be struck out vis-à-vis it, for it ‘has performed its duties accordingly’, this is refuted and the NLTB ‘should withhold all rent monies or alternatively [deposit] some with’ the Court: Response Affidavit, para 21

6.5 The NLTB’s position, namely that the motion and supporting affidavit are insufficient to warrant an injunction(s) against the NLTB and should be struck out with costs on an indemnity basis to the NLTB, is refuted: Response Affidavit, para 22

6.6 Finally, it is said:

... the social structure of the native Fijians are at stake as a result of the misconduct of head of the Mataqali and the action of the [NLTB] and its insensitiveness to the problem facing landowning units as a whole has led to the present impasse. To avert a catastrophe, the indulgence of the Court is fervently prayed for’: Response Affidavit, para 23

7. Serious Issue to be Tried

Clearly, the Plaintiff believes there is a most serious issue before this Court in its Statement of Claim. At the heart of the dispute is:

• Whether the NLTB is right when it says its responsibility ends when it disburses monies or rents to the First Defendants, and that it has no responsibility under the law for ensuring that those monies are distributed equally amongst all members of the Mataqali, nor to itself take on the task of so distributing the monies: Written Submissions, pp. 1-2; Reply Affidavit
  
• Whether the Plaintiff is right in asserting that the disbursement of monies or rents by the NLTB to the First Defendants ‘for their own use’ and ‘neither for a project or for any purpose’ within the meaning of Native Land Trust Act and Native Lands (Leases and Licences) Regulations, is not in accordance with the responsibility and duty of the NLTB or the law governing such disbursement: Written Submissions, p. 3, Supporting Affidavit, Response Affidavit, Statement of Claim
  
• Further, whether the Plaintiff is right in asserting that a distinction between extinct and non-extinct Tokatokas is being applied appropriately by the NLTB in the payout of monies accruing: Supporting Affidavit, Statement of Claim, paras 10, 11, 14, 15
  
• Whether the First Defendants are right when they say that there is ‘no conduct complained of by the First Defendants arising to a cause of action against them’: Written Submissions, p. 2
  

7.1 A problem for the Plaintiff is that the Plaintiff has relied upon ‘fraud’ and ‘collusion’ in substantial part. It is trite law that if a party alleges fraud, then a proper ground or basis must be established. The NLTB raises this when it says that the particulars of claim and allegations ‘are vague and ambiguous’, saying there are ‘no specific details of the fraudulent allegation against’ it, and ‘There is no particular period mentioned in the Motion and supporting affidavit to warrant reply, let alone an injunction against the Board’: Written Submissions, p. 2

7.2 I do not agree that the Plaintiff’s Statement of Claim generally is ‘vague and ambiguous’. The Plaintiff’s complaint, its dimensions and its particulars are readily clear, in my opinion. It is that monies that are due to members of the Mataqali Nanuku are being paid by the NLTB to the First Defendants when, says the Plaintiff, this does not accord with the law; and by that action the NLTB is depriving the members of the Mataqali Nanuku of monies that rightfully should be distributed to all the members. The Plaintiff observes that there are three Tokatokas, of which two are extinct, and that the NLTB is asserting a wrong legal principle by (as I understand it) distributing monies vis-à-vis the extinct Tokatokas solely to the First Defendants so that the Plaintiffs are not advised of the monies accruing there, nor are they gaining their rightful share. Hence, says the Plaintiff, the First Defendants are made a party because it is they who are receiving the monies from the NLTB and, says the Plaintiff, the First Defendants are wrongly receiving the monies in that all the monies are going to the First Defendants and being distributed amongst them, rather than going to all the members of the Mataqali Nanuku.

7.3 The difficulty arises in respect, however, of ‘fraud’ and ‘collusion’ and here I have concerns as to the way in which the Plaintiff puts its case on this aspect.

7.4 Fraud is a most serious matter and a most serious allegation. ‘Fraud’ cannot be asserted in a court of law without a proper foundation. If the substantive proceeding is to continue, then the Plaintiff must reassess its Statement of Claim by reference to the strict requirements governing allegations of fraud. The NLTB has raised this in its contentions as to a lack of particulars, and particulars of fraud are essential to a claim of fraud. ‘Particulars’ are set down in relation to ‘fraud’ in the Statement of Claim. However, the particulars must or must also focus on the fraud itself – that is, what are the particulars of the fraud or fraudulent conduct. It is not enough, in my opinion, simply to say that various monies have been paid ‘fraudulently’ or as a result of ‘fraud’. Particulars must, as noted, incorporate with precision the actual conduct involved in the payout of the monies and in decision-making as to the payout, etc which supports (in the Plaintiff’s contention) actual fraudulent conduct.

7.5 That having been said, and as I have stated it is a serious matter and needs to be addressed by the Plaintiff, having perused the material including the Statement of Claim, the Affidavits from the Plaintiff and the Second Defendant, and the parties’ submissions, it appears to me that there are in the matters put before the Court serious questions, issues and disputes about the law – based in a conflict as to authorities and their application; particular statutes and their relevance or otherwise; the scope of customary law or its application and whether it is ousted by statute; as to the status and effect of extinct versus non-extinct Tokatokas; to whom and how monies should be paid; whether monies have been paid in accordance with the law or not; whether the Plaintiff is a representative of the majority of members of the Mataqali, so as to give him the standing he claims.

7.6 As I have said, the thrust of the Plaintiff’s case as I understand it is that monies held in trust by the NLTB, or coming into the possession of the NLTB in the way of rents on native lands, namely the Mataqali Nanuku, is being paid to the First Defendants inconsistently with the requirements of the applicable law. Further, the contentions of the NLTB are that any rents it receives are being dealt with consistent with the laws governing it and its operations, and that it is abiding by its role as trustee in paying the monies to the First Defendants. Although there is no Affidavit material from the First Defendants, as I understand it, they contend that there is no wrongful payment by the NLTB to them and any monies they receive or have received have been properly paid in accordance with the law and their rights, for they say there is no case put by the Plaintiff affecting them.

7.7 The First Defendants say there is no serious issue to be tried vis-à-vis them, for the motion seeks injunctions as against the NLTB alone. However, the effect of injunctions would be to impact upon the First Defendants, in that were they or any one of them granted, the First Defendants would receive no advance payment/loan of the Mataqali Nanuku rental proceeds of any money collected by the NLTB; and/or would receive no rental proceeds and/or any money of the Mataqali Nanuku collected by the NLTB for the period in which any injunction/s are in place.

7.8 Further, it is not only to the terms of the injunctions that I should look in determining whether there is a serious issue to be tried. The Court needs to look at the dispute or the nature of the dispute that is outlined in the materials, and in relation to which the injunctions are sought. Clearly, the Plaintiff raises issues directly relating to or involving the First Defendants and their receipt of monies from the NLTB and the way in which those monies have been distributed by and among the First Defendants, without as it is alleged any distribution to other members of the Mataqali and in particular the Plaintiff and those whom the Plaintiff represents.[8]

7.9 As noted, there is a Summons to strike out which has not been proceeded with. If the First Defendants wish to proceed with that Summons, then whether there is ‘no reasonable cause of action’ disclosed against them can be agitated fully. For the present purpose, however, and taking into account only what has been said in the submissions as to the injunctions which is all that is before me vis-à-vis the First Defendants, I am unable to accept that there is no serious issue involving the First Defendants.

7.10 Taking all this into account, in my opinion, I find that there is a serious issue to be tried and that the serious issue to be tried involves the Plaintiff, the NLTB and so far as is currently advanced on the material before the Court, the First Defendants. That serious issue meets both the American Cyanamid test and the Mareva injunction test (if it is applicable which, as I have said, I do not consider so).

7.11 In so finding, I emphasise that I do not go to the allegations of fraud and collusion and do not find it necessary to do so in order to meet both American Cyanamid and Mareva. I reserve for later further comment as to this aspect of the Plaintiff’s claim.[9]

7.12 Hence, my answer on the first leg of the test set in American Cyanamid (which I consider to be the applicable standard/test) is ‘yes’.

8. Damages and Balance of Convenience

In Canada, the damages test has been elaborated on in a way that is useful for the purposes of the present case. There, in Manitoba (AG) v Metropolitan Stores Ltd (1987) CanLII 79 (SCC); [1987] 1 SCR 110; (1987) 38 DLR (4th) 321; [1987] 3 WWE 1; [1987] 25 AdminLR 20; http://www.canlii.org/en/ca/scc/doc/1987/1987canlii79/1987canlii79.html the Supreme Court said:

The second test [as to damages] consists in deciding whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm, that is harm not susceptible or difficult to be compensated in damages. Some judges consider at the same time the situation of the other party to the litigation and ask themselves whether the granting of the interlocutory injunction would cause irreparable harm to this other party if the main action fails. Other judges take the view that this last aspect rather forms part of the balance of convenience: para [35], at 14

8.1 Going on to look at that third test set by Cyanamid the Court said:

The third test, called the balance of convenience and which ought perhaps to be called more appropriately the balance of inconvenience, is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits: para [36], at 14

8.2 I am persuaded that it is appropriate in the present case to look at the question of damages and that of balance of convenience as interlinked.

8.3 Both the First Defendants and the NLTB say that the Plaintiff’s motion for injunctions should fail because the undertaking as to damages is absent or inadequate or insufficient. As earlier noted, Sevanaia Druma says simply:

THAT the Plaintiff gives the usual undertaking as to damages: Supporting Affidavit, para 17

8.4 In Sharma v. Akhil Holdings Ltd [2006] FJHC 82; HBC155.2002l (15 December 2006), the Court referred to this issue by reference to Natural Waters of Viti Ltd v. Crystal Clear Mineral Waters (FIJI) Ltd CABU0011/a of 2004S (26 November 2004); and Air Pacific Ltd v. Air Fiji Ltd [2006] FJCA 63; ABU0066U.2006S (10 November 2006). In Air Pacific the Court of Appeal said it did not need to consider the question of sufficiency of damages because the interim injunction was set aside by reference to the first leg of American Cyanamid – namely the failure to establish that there was as serious issue to be tried. However, the Court of Appeal reiterated ‘as an important point of practice’ that where a party ‘gives an undertaking to pay damages, there must be adequate information to allow an assessment of the worth of the undertaking. This Court laid that down in Natural Waters of Viti Ltd v. Crystal Clear Mineral Waters (Fiji) Ltd ...’: at 9

8.5 It is, however, important to observe that in Natural Waters of Viti the Court of Appeal said this:

In our view there was plainly a serious issue to be tried. The potential for damage to the Appellants operation was palpable. While both parties offered undertakings in damages, neither placed sufficient material before the court to fortify those undertakings. At the same time, we see no reason to disagree with the Judge’s finding that the Respondent was a ‘minnow’ by comparison with the Appellant. In those circumstances, we are satisfied that there was a real danger to the Appellant of irrecoverable damage being incurred as a result of the Respondent’s use of get up No. 3 and its prominent use of the word ‘Fiji’.[10] Applicants for interim injunctions who offer an undertaking as to damages should always proffer sufficient evidence of their financial position. The court needs this information in order to assess the balance of convenience and whether damages would be an adequate remedy

So far as the Respondent is concerned, the cost of relabelling and the value of reduced sales which might flow therefrom would be relatively simple to establish in the event that the Appellant’s counterclaim were to fail. From the size of the Appellant’s operation, we think it is reasonable to assume that it would be well able to meet the resulting claim for damages: at 7-8

8.6 That is, the failure to ‘proffer sufficient evidence of their financial position’ was not in the end determinative of whether or not an injunction should be granted or maintained. True it is that, in the upshot, the existing interim injunctions were discharged by the Court of Appeal. However, it made other interim injunctions which met the requirements of the case.

8.7 In the present case, I look to the position of all the parties. It is difficult to see that the NLTB will suffer any financial loss if the injunctions are issued in the terms applied for by the Plaintiff, or that it will be inconvenienced, or at least inconvenienced in any really appreciable way. The NLTB’s role is to act as trustee for native land funds and it therefore collects and holds funds until it pays them out. It may be that the injunctions sought would mean that the NLTB would hold funds for a longer time than ordinarily is the case, however it is difficult to see that this would create an insuperable problem for it, if it creates a problem at all. It may require modified accounting or attention to the accounting of or for the particular funds or monies in issue, but even this would seem to go to timing.

8.8 So far as is apparent, the NLTB appears to raise on the issue of convenience nothing as to its accounting practices so that I believe the Court can accept that the foregoing assessment is fair and generally accurate as to the NLTB’s position in that regard. Even if this issue were to figure in its submissions or other material, it seems to me as aforesaid that it is simply a matter of timing, by which I mean holding on to monies for a period beyond that which it may have held on to them prior to distribution. As the Court (with the expected cooperation of the parties) will work to ensure that this period is as short as possible, with the substantive proceeding being dealt with as expeditiously as possible, this will reduce any difficulty.

8.9 The NLTB looks, in regard to balance of convenience, to the position of the First Defendants and the potential effect on their livelihood. It refers to the ‘rights and interests of the rest of the land owning unit’ saying that an injunction or injunctions as sought would infringe those rights. Yet the NLTB as I understand it says that it is paying out the monies to the First Defendant and has no obligation to pay monies out to the members of the Mataqali Nanuku generally (at least insofar as the extinct Tokatokas are in issue[11] – and it is these, as I understand at the Plaintiff to say, which accrue or may accrue the highest level of funds).[12] Further, the Plaintiffs say that the distribution is to the First Defendants and to no members other than them and their family members. Hence it is difficult to see an effect on other members of the Mataqali.[13]

8.10 The NLTB also considers as an issue going to the balance of convenience that the action is ‘against the first defendants’ and says the Plaintiff ‘also alludes to the option of resolving this right amongst themselves’. This it says is ‘evidence that the balance of convenience should be’ for the NLTB. Further:

The difficulty of the plaintiff and the first defendants to resolve outstanding issues within their landowning unit, is eminent and any potential loss of income is of their own making.

The [NLTB] in this case should be released from any litigation of this sort: Written Submissions, p. 3

8.11 It does appear that the Plaintiff wishes to have an opportunity to engage in discussion or dialogue of a productive nature with the First Defendants: Written Submissions, pp. 4-6 However, what is also clear is that the Plaintiff’s position is that that will not come about without the claim before this Court being enabled to progress. In particular, the Plaintiff sees the application for injunctions and the Court’s entertaining and acceding to the application as a crucial step in the endeavour to resolve the dispute, and as giving rise to a possibility that there may then be room for productive discussion and negotiation in possible resolution.

8.12 It is common in today’s litigation for courts to embrace mediation, conciliation and arbitration as alternatives to adversarial court contests. Alternative dispute resolution generally receives applause and imprimatur in the justice system and through statute law or amendments to existing statutes in a wide-range of legal arenas and fields. The Employment Relations Promulgation which wholly came into effect on 2 April 2008 is an example. Taking into account the emphasis on alternative dispute resolution – which is often underpinned by traditional court processes, courts frequently having statutory power or using inherent jurisdiction to order mediation, conciliation or arbitration – I do not see the Plaintiff’s readiness to have recourse to such processes as undermining their case before this Court nor as a reason for refusing the injunctions by reference to ‘balance of convenience’.

8.13 The First Defendants’ reference to the balance of convenience is in the contest of the First Defendants disputing that there is a serious issue to be tried against them. I have been unable to see in the submissions or other material a concern raised about the financial position of the First Defendants should injunctions be granted as sought. The First Defendants’ position is that as there is no injunction sought against them:

In essence therefore, the First Defendants are unnecessary litigants ... Hence, the First Defendants dispute there is a serious issue to be tried against them. In the circumstances, the balance of convenience favours the First defendants and we seek that the Honourable Court be guided accordingly: Written Submissions, p. 3

8.14 In conclusion (after referring to the ‘serious question to be tried’ aspect, that of ‘undertaking as to damages’, and this reference to ‘balance of convenience’) the First Defendants say that the ‘overall justice of the case demands’ that the Court ‘not grant the interim injunction at all’: Written Submissions p. 4

8.15 As earlier observed, the monies in question and which will be held by the NLTB should the injunctions be granted is monies which is in dispute in the substantive proceeding. If the Plaintiffs should succeed in the substantive proceeding, then part at least of these monies will come to them. If the Plaintiffs do not succeed, then those monies will be in the NLTB coffers to be paid out to the First Defendants in the same way as the NLTB has, it is understood, been paying out such monies to date.

8.16 I am unable to accept therefore that the balance of convenience lies against the Plaintiffs and for the First and/or Second Defendants. Insofar as whether damages will satisfy the Plaintiffs’ claim, it seems to me that this is answered by the recitation of the facts as put by the parties. Namely, that the monies in question in the substantive proceeding are in part the monies sought to be made the subject of the injunctions. The monies sought to be made the subject of the injunctions are not those already paid out to the First Defendants and about which the Plaintiff complains. Those monies are, according to the Plaintiff, received, held, dispersed, spent or otherwise distributed or made use of by the First Defendants. However, the substantive proceeding focuses also on the future monies to be obtained by the NLTB and seeks to ensure that before those monies are paid out, there will be a resolution of the substantive proceeding so that those monies will be paid out in accordance with the applicable law.

8.17 Of course, one could say that damages will suffice here: that is, ‘it is only money’ and the particular money in one sense can be replaced by ‘other money’. However, where will this ‘other money’ come from and if damages are to be paid, from whence will they come? It seems to me that, taking into account all the parties have said, the issues in the substantive proceeding and what the dispute is all about, that the monies in question are best preserved so that the parties can be properly satisfied – whether it is the Plaintiff in respect of the monies claimed, and the Plaintiff is successful; or the First Defendants in receiving the monies claimed by the Plaintiff if the First Defendants are successful; and the NLTB in being assured that it can pay out those monies according to the law (as it says it has so far done), by a final determination of this Court.

8.18 Taking into account all the foregoing, including all the relevant matters before the Court, it seems to me that the two remaining principles in American Cyanamid should be answered in favour of the Plaintiffs.

9. Conclusion

I therefore consider that, having taken into account all the material including the Affidavits and the Written Submissions, and the matters put in the substantive proceeding, the injunctions should issue.

9.1 At the same time, it is important that the substantive proceeding should be called on for hearing as soon as practicable. In saying this, I have taken into account all the issues including the financial circumstances of the parties as a general issue and insofar as there is any material available for consideration - Plaintiff and First Defendants and any other members of the Mataqali Nanuku who may have an interest.

9.2 The matter will therefore be listed for mention in Lautoka High Court on Monday 28 April 2008, when a timetable for hearing may be set down.

9.3 Returning to the issue of fraud and collusion, at that time the Plaintiff may wish to include in the timetable a period during which it amends its Statement of Claim, with reference to the authorities and to Bullen and Leake on Pleadings or a similar text which would be of assistance. I add as a caution here, or a matter at least for consideration, that the Plaintiff needs to consider whether there is an issue for the Court going to ‘fraud’ and ‘collusion’ at all, or whether its Statement of Claim without any such reference is sufficient. Of course, this is a matter for the Plaintiff in consultation with the Plaintiff’s legal advisors although ultimately it will be for the Court to rule on any matter of fraud or collusion pleaded by the Plaintiff and I repeat that the standard required for particulars and for proof is high.[14]

Orders

1. The Second Defendant, the Native Land Trust Board (NLTB) is hereby restrained from giving any advance payment/loan of the Mataqali Nanuku rental proceeds or any money collected by the NLTB in respect of the Mataqali Nanuku to the First Defendants until further Order.
   
2. The Second Defendant, the NLTB, is hereby restrained from paying out rental proceeds and/or any money of the Mataqali Nanuku collected by the NLTB to the Mataqali Nanuku until further Order.
   
3. The matter be listed for mention in Lautoka High Court on Monday 28 April 2008 at 9.30am.
   
4. Costs in the cause.
   

Jocelynne A. Scutt
Judge
14/04/08

^[1] Or a ‘good arguable case’, ‘a reasonably arguable case’, ‘a serious question to be tried’, ‘a prima facie case’ or a ‘good arguable case’: Briscoe, Mareva and Anton Pillar Orders, 2007
^[2] I take this to mean that it was understood by Counsel for the Plaintiffs that, payment having been made, there were no payments pending or due at least for sometime, hence obviating urgency when the matter came before the Court on that occasion.
^[3] Although the headnote does not indicate it, this will have been the NLTB, for there was no solicitor on record for the First Defendants until 8 November 2007, and had the First Defendants appeared personally, the file could be taken to have indicated this.
^[4] The Affidavit goes on to aver various matters more in the nature of legal submissions than for an Affidavit. Nonetheless, in my opinion their being set out here assists in understanding the matters in dispute, whilst observing it is for the Court to make determinations as to the law.

^[5] Ana Rokosau is named as one of the First Defendants.
^[6] Meresimani Kuro is named as one of the First Defendants.
^[7] Apenisa Nakete is named as the first of the First Defendants.
^[8] For the purpose of the present Motion, I observe as to standing that the Plaintiff has filed with the Supporting Affidavit signatures of various persons whom the Plaintiff says are members of the Mataqali Nanuku so as to give him standing as their representative. I observe also that the Annexures to the Supporting Affidavit and Supplementary Affidavit constitute letters to the NLTB which also attach signatures of members of the Mataqali Nanuku whom the Plaintiff states are represented in the substantive proceeding and the Motion through the Plaintiff.
^[9] See below.
^[10] In short, ‘Get up No. 3’ as with ‘Get up No. 4’ applied to the different labels and bottleshapes or designs used by Crystal Clear which were said by Natural Waters of Viti to usurp Natural Waters of Viti’s labeling, design and ‘make up’ or ‘get up’ and which were the subject of complaint leading to the application for interim injunctions to (in the argument of Natural Waters of Viti) interfere with their marketing and hence sales and projections or advertising, etc of their product as unique.
^[11] Although NLTB accounting advice and payouts on all three Tokatokas are the subject of complaint; see for example letters of 4 January 2007, 15 May 2007 and 21 February 2007 to the NLTB, Supplementary Affidavit, Annexures ‘SD 1’, ‘SD 2’, ‘SD 4’, ‘SD 5’ and ‘SD 6’.
^[12] In any event, if I am wrong in this – that is, that this is not correct in terms of the payouts, and/or that it is not correct that the extinct Tokatokas provide the highest levels of monies, I observe first that the NLTB does not provide any precise information as to the negative impact it says any injunction/s will or may have on members of the Mataqali Nanuku generally; and secondly that the Court would take whatever steps are necessary to ensure progress of the substantive proceeding in order to minimise as far as possible the impact of any injunction/s and generally, as well as in light of the NLTB’s position, expect the positive cooperation of the parties in this regard.
^[13] Again, if I am wrong in this, I again emphasise that the Court would take whatever steps are necessary to ensure progress of the substantive proceedings as swiftly as possible to minimise impact of any injunction/s and call upon the cooperation of the parties as noted.
^[14] There may also be an issue for the Plaintiff’s legal representatives to consider as against their own obligations as lawyers in pleading ‘fraud’ as my understanding is that there may well be ethical rules governing lawyers’ responsibilities in relation to including ‘fraud’ in pleadings. It is for the Plaintiff’s legal representatives to have regard to this possibility should they determine a need to do so.