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Asha Investment Ltd v Rasila [2010] FJHC 568; HBC235.2010L (30 December 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 235 of 2010L

BETWEEN:

ASHA INVESTMENTS LIMITED
Plaintiff

AND:

NETAVA RASILA as representative of MATAQALI VATUDAGIS
Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Messrs Gordon & Co for the Plaintiff.

Solicitors: Mr D Gordon and Mr R Singh for the Plaintiff.

Date of Hearing: 16 December 2010
Date of Judgment: 31 December 2010

INTRODUCTION

[1] This is the Plaintiff's application for interim orders to restrain the Defendant Mataqali from taking sand from its native land in Sigatoka.

[2] The application came by way of Ex-parte Motion and Supporting Affidavit together with the Writ of Summons which were filed during the Court vacation on 13 December 2010.

[3] Having read the material I formed the view that the application should proceed inter-partes and directed the Registry to issue the Motion inter-partes for mention before me on 16 December 2010 at 9.30 am.

[4] When the application was called on that morning only counsel appeared for the Plaintiff. Neither the Defendant nor their counsel appeared. The Affidavit of Service has been filed. I was informed that Mr Rasila had received and signed the Acknowledgement of Service which was to the effect that the Defendants were not defending the action. The Motion was served on 14 December 2010. I then heard and granted the application on 16 December 2010. I now publish my reasons.

THE MOTION

[5] The Motion sought the following orders:

1. THAT the Defendant whether by himself his servants agents or employees be re(s)trained from entering the Plaintiff's land being Native Lease No 17092 until further order of this Honourable Court.
   
2. THAT the Defendant whether by himself his servants agents or employees be restrained from removing sand from the Plaintiff's land being Native Lease No 17092 until further order of this Honourable Court.
   

100. THAT the Fiji Police Force be directed to assist in the enforcements of these orders.
     

4. THAT the costs of this application be paid by the Defendant.
   

[6] The Motion stated that the application was filed pursuant to Order 29 Rule 2 of the High Court Rules 1988. I think the proper rule is Rule 1(2) so I considered the application pursuant to that rule.

[7] The Affidavit in Support was sworn by the Group Accountant of the Plaintiff company. He confirmed that the company is the registered proprietor of Native Lease No 17902 of land known as Vonokenamasi in Cuvu, Nadroga, consisting of a little over 169 acres and annexed a copy of the lease to his affidavit. The land is beneficially owned by the Defendant Mataqali. The lease is to expire in 2012. The land contains fine sand which is scarce and valuable. It is mixed with cement to make concrete for the building and construction industry.

[8] The Defendant Mataqali owns adjoining land which also has the same scarce and precious fine sand. On 29 September 2010, the Native Land Trust Board (NLTB) issued a licence to the Defendant to extract to extract sand from the Mataqali land on the payment of royalties to the NLTB and other conditions. The licence is for 12 months from 1 October 2010.

[9] The company complains that without its approval the Defendant extracted sand from its land as well. It's solicitors notified the NLTB on 5 October 2010 of what the company says was unlawful extraction of its sand and asked for a response but a response did not come quick enough. On 15 October 2010 the company's solicitors wrote again to the NLTB advising that the company had agreed to grant an extraction licence to one of its customers, a company called Lagicere Investment Limited, to extract sand from the subject land.

[10] On 19 October 2010, the Deputy General Manager (Operations) of NLTB headquarters replied that the matter was being referred to its Regional Manager. On 4 November 2010, the NLTB Manager South/West responded confirming that an extraction licence had been issued to the Defendant and suggested that the company engage a surveyor to "redefine" the lease boundary.

[11] The Plaintiff company then hired a registered surveyor to conduct a survey. The surveyor's report of 10 November 2010 confirmed that the Defendant was extracting sand from the company's land.

[12] According to the company's calculations and engineers hired by the company, the Defendant had extracted 130,000 cubic meters of sand from the company's land as at 15 November 2010. The company accountant says that due to the shortage of fine sand the current price is $60.00 per cubic metre and at that rate the Defendant has removed about $7.8m worth of sand from the company's land. The Defendant continued to extract sand.

[13] The Statement of Claim pleads the above facts and claims general damages and special damages in the above sum, declaration of sole occupancy of the subject land and an injunction restraining the Defendant from entering and extracting sand from it.

CONDSIDERATION OF THE APPLICATION

[14] There are serious issues to be tried. I think the balance of convenience lies in favour of maintaining the status quo. I therefore grant orders in terms of paragraphs A and B of the Motion.

[15] Although I am told that Police was not assisting I do not think it is necessary to make such an order as in paragraph C.

[16] Although Mr Rasila had signed the Acknowledgement of Service for the Defendants not defending this action, I am not prepared to grant final relief because Mr Rasila may have not fully understood what he had signed and may not have even cared. So I put the matter for mention again when the Court resumes in 2011.

ORDERS

[17] I therefore make the following orders:

1. Orders as per paragraphs A and B of the Motion filed on 13 December 2010.
   
2. The Plaintiff is to serve the Court documents within 3 days.
   
3. Mention on 31 January 2011 at 9.30 am.
   

Sosefo Inoke
Judge