IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No.: HBC 287 of 2016

BETWEEN	:	ANARE SOVU of Namalata Village, in the District of Tavuki in the 	Province of Kadavu, Farmer, suing in his personal capacity as a member 	of the Mataqali Valewai and in a representative capacity for and on behalf 	of the majority members of the Mataqali Valewai of Namalata Village, in 	the District of Tavuki in the Province of Kadavu.

PLAINTIFF

AND	:	SIRELI WATISOKO, SEMISI KETENALAGI, SAMUELA	SAUTAMATA, MATAIASI VERETAYACO, JALESI MARA,	AMINIASI CULA and ULAIASI RABESA SOVU of Namalata Village, 	in the District of Tavuki in the Province of Kadavu as Trustees of the 	MATAQALI VALEWAI TRUST.

DEFENDANTS
Counsel		: Ms. Jackson L for the Plaintiff									  Mr. Naco A for the Defendants 
Dates of Hearing	: 23rd January, 2017	
Date of Judgment 	:  31st January, 2017	

JUDGMENT
INTRODUCTION
1.	The Plaintiffs are seeking injunction restraining the Defendants from acting as trustees of 	the Mataqali Valewai thus restraining them from dealing with the properties belonging 	to the trust and also preventing them from dealing with the accounts belonging to the 	trust. The Plaintiff had filed this application by way of ex-parte motion, but it was 	converted in to inter partes motion and the Defendant was given an opportunity to file 	their objections but they have failed to do so. So at the time of the hearing the statement 	of claim and affidavit in support and written submission of the Plaintiffs were available 	for consideration of this decision. The counsel for the Defendants objected to the application 	mainly on the grounds of inadequacy of the security for damages and availability of the 	dispute resolution clause in the Trust Deed.

ANALYSIS
2.	The Plaintiff instituted this action in his personal capacity as well as member of the 	Mataqali Valewai in representative capacity for majority of the members of the Mataqali	Valewai. The Defendants are the trustees of the Mataqali Valewai Trust.

3.	In the Inter Partes motion following orders are sought by the Plaintiffs 
‘1. 	An injunction restraining the Defendants from acting in their capacity as Trustees of the Mataqali Valewai Trust and/ or from dealing with or representing the Mataqali Valeiwai Trust in manner or form whatsoever until the final determination of the Plaintiff’s claim herein, save as to provide an account of monies deposited in and withdrawn from BSP Account Number 482812 or any other bank account under the name of the Mataqali  Valewai to the Plaintiff and the Mataqali Valewai on the accounts of the Mataqali Valewai Trust;

	2.	An injunction restraining the Defendants from dealing with any 	Mataqali Valewai Trust properties or monies held in the Mataqali	Valewai BSP Bank Account No 462812 or any other bank account 	under the name of the Mataqali Valewai’.

4.	The Plaintiffs have filed a statement of claim along with the writ of summons and the 	Motion seeking injunction supported by an affidavit. The Defendant had not filed a 	Statement of Defence and or affidavit in opposition.

5.	The allegation against the trustees of the Mataqali Valewai Trust are made on the basis of 	alleged breaches of Mataqali Valewai Trust Deed. The Plaintiff is alleging that the 	trustees did not submit the accounts of the trust and had also made substantial 	withdrawals from the trust account.

6.	According to the affidavit in support (the affidavit), ‘all decisions in respect of the Mataqali Valewai Trust, were required to have due regard “to the cultural protocols and practices” acknowledged and observed by the members of the Mataqali Valewai, which included consulting’ the Plaintiff as the Turaga ni Mataqali on all decisions and matters pertaining to the Mataqali Valewai Trust, namely the utilization of the lands and funds. (See paragraph 13 of the affidavit).

7.	The Plaintiff allege that neither he nor the members were consulted and or informed of 	the disposition of the land for commercial purposes and the proceeds of the said 	disposition were not properly accounted as required by the Trust Deed of Mataqali 	Valewai Trust

8.	The Plaintiff had submitted the account of Mataqali Valewai BSP Account No 482812 	and according to the affidavit in support it was operated by the trustees of the Mataqali	Valewai Trust.

9.	According to the Trust Deed of Mataqali Valewai Trust, the trustees are obliged to report 	to the members of the finances of the Trust on six monthly basis. There is no evidence of 	that being done every six months for more than 2 years. The period of the trust deed is 3 	years and it need not be emphasized the importance of adherence to such timely reporting 	of the financial status to the members, who are appointed for a fixed term.

10.	The Plaintiff also alleges that the disposition of the Mataqali Valewai Trust property to a 	commercial entity was also not done in accordance with the law. The Plaintiff had 	submitted relevant evidence but I do not wish to analyse them now.

11.	The Plaintiff in his statement of claim seeks removal of the trustees and also appointment 	of new trustees.

12.	The law relating injunction is contained in American Cyanamid Co v Ethicon Ltd	 [1975] 	1 All ER 504 and needs no elaboration.

13.	The counsel for the Defendants at the hearing raised two objections to this application 	they can be summarized as follows
i.	The Plaintiff had not explored the dispute settlement under the Mataqali Valewai Trust Deed, namely Clause 8 of Trust Deed.
ii.	There is no appropriate undertaking for Damages.

14.	The first objection is based on the Clause 8 of the Mataqali Valewai Trust Deed. The 	Clause 8 reads as follows
	‘In the event of any protected dispute on any matters arising out of the 	Trust, a special Counsel constituting of elderly members of Mataqali	Valewai including the Turaga ni Mataqali must decide in a culturally 	appropriate way to MataqaliValewai, with the concurrent of the rest of 	the Mataqali members, how best to resolve the issue (as in the interest of 	all members) before any further legal action.’

15.	To my mind such a clause will not hinder any party making an urgent application to the 	court, such as injunction. These are discretionary remedies and even when there are 	alternate remedies the court is not precluded from exercising its power to grant injunction 	as an equitable remedy. So the Clause 8 would not per se preclude a member of Mataqali	Valewai seeking an urgent remedy such as injunction from the courts.

16.	Apart from this, the dispute resolution contained in Clause 8 of the Mataqali	Valewai Trust , the resort to such mechanism will be unsuitable for the present purpose 	as the Plaintiff is one of the named person who would constitute the ‘Special Counsel’ for 	dispute resolution in terms of the said clause. The Plaintiff who is seeking relief cannot 	impartially sit as ‘Special Counsel’, and this would also be an additional ground for 	seeking court’s intervention.

17.	The Second objection is regarding the inadequacy of the assurance for damages. The 	Plaintiff in the affidavit in support at paragraph 27 state as follows
	‘As the Turaga ni Mataqali of the Mataqali Valewai , I am in a position to 	call for a meeting of the Mataqali Valeiwai in order to raise the necessary 	funds to satisfy the requirement for the usual undertaking as to damages. 	Further the Mataqali Valewai are the beneficial owners of the funds 	contained in the Mataqali Valeiwai BSP Account Number 482812 which 	currently contains approximately 40,000 …….’

18.	He further stated that as the Turaga ni Mataqali of the Mataqali Valewai is in a 	position to obtain necessary approval from the members of the said fund if there is a 	need. Having said the reasons and means the Plaintiff had given the undertaking as to the 	damages.

19. 	The undertaking as to the damage is a requirement for an injunction, in terms with 	American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504. 

20.	In terms determination of Lord Diplock, in American Cyanamid Co v Ethicon Ltd[1975] 	1 All ER 504.  The first consideration is serious question to be tried.  The claim of the 	Plaintiff should not be vexatious or frivolous. The Plaintiffs claim 	is not frivolous on the 	undisputed material before me.

21.	American Cyanamid Co v Ethicon Ltd[1975] 1 All ER 504 at p 510Lord Diplock held,
	‘As to that, the governing principle is that the court should first consider 	whether if the plaintiff were to succeed at the trial in establishing his right 	to a permanent injunction he would be adequately compensated by an 	award of damages for the loss he would have sustained as a result of the 	defendant's continuing to do what was sought to be enjoined between the 	time of the application and the time of the trial. If damages in the measure 	recoverable at common law would be adequate remedy and the defendant 	would be in a financial position to pay them, no interlocutory injunction 	should normally be granted, however strong the plaintiff's claim appeared 	to be at that stage. If, on the other hand, damages would not provide an 	adequate remedy for the plaintiff in the event of his succeeding at the trial, 	the court should then consider whether, on the contrary hypothesis that 	the defendant were to succeed at the trial in establishing his right to do 	that which was sought to be enjoined, he would be adequately 	compensated under the plaintiff's undertaking as to damages for the loss 	he would have sustained by being prevented from doing so between the 	time of the application and the time of the trial. If damages in the 	measure recoverable under such an undertaking would be an adequate 	remedy and the plaintiff would be in a financial position to pay them, 	there would be no reason this ground to refuse an interlocutory 	injunction. (emphasis added)

22.	The Plaintiff had alleged serious breaches on the part of the Defendants as trustees. The 	Defendants did not even dispute the said serious violations that include financial 	mismanagement as well as illegal disposition of land belonging to the members of 	Mataqali Valewai.

23.	These are serious questions to be tried at the hearing. He had also given a personal 	undertaking and this action is instituted on behalf of majority members of the Mataqali	Valewai. In the circumstances of the case, in the exercise of my discretion I find that the 	undertaking as to damage by the Plaintiff is adequate.

24.	The balance of convenience is also favouring the grant of injunction against the trustees 	of the Mataqali Valewai Trust. A considerable time had lapsed and the trustees failed to 	submit timely financial status of the Mataqali Valewai Trust to the members, in 	accordance with the Mataqali Valewai Trust Deed. This is a continuous violation from  	the time of appointment of the present trustees. They are also required to follow the 	cultural protocols and practices too, but Plaintiff alleges that that was also neglected by 	them.

25.	In the circumstances the discretion of the court is to be exercised in favour of motion 	seeking injunction.

FINAL ORDERS
1. 	An injunction restraining the Defendants from acting in their capacity as Trustees of the Mataqali Valewai Trust and/ or from dealing with or representing the Mataqali Valeiwai Trust in manner or form whatsoever until the final determination of the Plaintiff’s claim herein, save as to provide an account of monies deposited in and withdrawn from BSP Account Number 482812 or any other bank account under the name of the MataqaliValewai to the Plaintiff and the Mataqali Valewai on the accounts of the Mataqali Valewai Trust.

2.	An injunction restraining the Defendants from dealing with any Mataqali Valewai Trust 			properties or monies held in the Mataqali Valewai BSP Bank Account No 462812 or any 			other bank account under the name of the Mataqali Valewai.

3. 	The cost of this application is cost in the cause.

4. 	The matter is to be listed before the Master for directions to expedite the hearing of the action. 

Dated at Suva this 31st day of January, 2017

							………………………………..
							Justice DeepthiAmaratunga
							High Court, Suva