Timbers (Fiji) Ltd v Native Land Trust Board (Application 2) [1997] FJHC 164; Hbc0344x.97s (30 October 1997)

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

ACTION NO. HBC0344 OF 1997

BETWEEN:

TIMBERS (FIJI) LIMITED
First Plaintiff

SAKIUSA VUIBEQA
Second Plaintiff

AND:

NATIVE LAND TRUST BOARD AND THREE OTHERS
Defendants

P.I. Knight for the Plafs
I. Fa for the Second and Fourth Defendant

Date of Hearing: 23rd October 1997
Date of Ruling: 30th October 1997

RULING ON APPLICATION FOR STAY OF EXECUTION OF ORDER
AGAINST SECOND, THIRD AND FOURTH DEFENDANTS

On 18th of August 1997 I ordered that the Second, Third and Fourth Defendants Jolame Nalawa, Sakeo Velinakoro and Waisake Waiwaidilo forthwith remove the roadblock constructed on the roadway known as Nabukelevu Road over which the First Plaintiff has a licence dated 5th July 1989 issued by the First Defendant.

I further ordered that the Second, Third and Fourth Defendants either by themselves or their servants or agents or otherwise be restrained from erecting a roadblock on or in any way interfering with the free passage with or without vehicles of the First Plaintiff, its servants, agents or licensees over the roadway until further order.

The Plaintiffs issued their Writ in this action on 18th August 1997. Paragraphs 1 to 6 thereof are relevant for present purposes and I now quote them:

"1. The First Plaintiff is a company incorporated and carrying on business in Fiji as timber millers and merchants and is the owner, inter alia, of a timber mill at Wainunu near Galoa in the Province of Serua.

2. The Second Plaintiff is suing in his capacity as the Turaga ni Mataqali and as a representative of Mataqali Naviyaraki.

3. The Second Defendant is sued in his personal capacity and in his capacity as the Turaga ni Mataqali and as a representative of Mataqali Ketenatukani.

4. The Third Defendant is sued in his personal capacity and in his capacity as the Turaga ni Mataqali and as a representative of Mataqali Ketenarukasara.

5. The Fourth Defendant is sued in his personal capacity and in his capacity as the Turaga Ni Mataqali and as a representative of Mataqali Sema.

6. The First Plaintiff is the licensee under a licence dated 5th July 1989 issued by the First Defendant under which the First Plaintiff with its servants and licensees has been granted by the First Defendant the right at all times during the currency of the licence which expires on 31st December 2004 to transport logs along over and upon the roadway referred to therein being the roadway from the Queens Road to Nabukelevu in the Province of Serua (the roadway)."

By Notice of Motion dated 2nd October 1997, presently before me, the Second and Fourth Defendants apply for a Stay of Execution of my order of the 18th of August against the Second, Third and Fourth Defendants and that the time for filing of Notice of Appeal be extended until leave is granted by this Court.

The Notice of Motion is supported by two affidavits, those by Jolame Nalawa the Second Defendant and Waisake Waiwaidilo the Fourth Defendant. Mr. Nalawa's affidavit contains only three short paragraphs, the second of which states that he agrees with the contents of Mr. Waiwaidilo's affidavit which he says are true and correct in all aspects.

No affidavit has been filed on behalf of the Third Defendant, Sakeo Velinakoro although Waisake Waiwaidilo says that he is duly authorised to make his affidavit on behalf of both the Second and Third Defendants.

In his submission to me on the hearing of the Motion Mr. Fa was commendably brief. He began by saying that the Defendants reiterate that the injunction if enforced will create a grave injustice to the Defendants because they never erected the roadblock. He then submitted that there was an important legal issue involved in these proceedings namely that the Second, Third and Fourth Defendants are being held liable by this Court by the manner in which the proceedings have been instituted in a representative capacity. They claim that as at present constituted there are no valid proceedings before this Court because the Court has not granted leave to issue any proceedings in accordance with the Rules of the High Court.

Initiall Fa relied on OrderOrder 15 Rules 14(1) and (2) but when I indicated to him after hearing Mr. Knight that I did not accept this submission, Mr. Fa then said tha Defendants really relied on Order 15 Rule 15(1)(b) - that that this was the proper rule because the land was the subject of a statutory trust under the Native Land Trust Act, Order 15 Rule 14(1) and (2) in the 1988 High Court Rules reads thus:

"(1) Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 15, the proceedings may be begun, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

(2) At any stage of proceedings under this rule the Court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued to represent all, or all except one or more of those persons in the proceedings; and where, in exercise of the power conferred by this paragraph, the Court appoints a person not named as a defendant, it shall make an order under rule 6 adding that person as a defendant."

Order 15 Rule 15 1(b) reads so far as relevant:

"In any proceedings concerning -

(b) property subject to a trust -

the Court, if satisfied that it is expedient so to do, and that one or more of the conditions specified in paragraph (2) are satisfied, may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceedings."

Sub Rule (2) reads:

"The conditions for the exercise of the power conferred by paragraph (1) are as follows-

(a) that the person, the class or some member of the class, cannot be ascertained or cannot readily be ascertained."

(b) and (c) not applicable.

The reason why I rejected Mr. Fa's argument on Order 15 Rule 14 (1) and (2) immediately was because I am satisfied that paragraphs 3, 4, and 5 of the Statement of Claim comply fully with Rule 14(1).

Sub Rule (2) is irrelevant because no application has been made by the Plaintiffs to appoint any one or more of the Defendants or other persons as representing whom the Defendants are sued to represent; nor in my judgment would any such application be necessary on the present state of the pleadings and the admitted facts.

I am left in no doubt that the claim by the Defendants that leave of this Court was required before the Writ was issued is an obvious afterthought because nowhere in the Defence filed and served by the Second and Fourth Defendants does such an allegation appear. If the Defendants intended this to be some special defence then the proper place to plead it would be in their Statement of Defence and they have not yet done so.

Interestingly enough and as a further rebuttal of the Defendants' present allegations in support of their application for a stay the First Defendant likewise in its Defence does not allege that the proceedings should be stayed because the Plaintiffs have not obtained the leave of the Court to issue their Writ.

As to Mr. Fa's belated reliance on Order 15 Rule 15 I can simply say that I am not satisfied on the present state of the pleadings that it is either desirable or expedient to make an order for the representation of the interested persons who can not be ascertained or readily ascertained this, being the object of Rule 15.

When I asked Mr. Fa if he could refer me to any local case law on the question he cited me the very full and interesting Judgment by Cullinan J. in CA580 of 1984 Waisake Ratu No.2 and Another v. Native Land Development Corporation and Another, unreported judgment of 24th February 1987.

Mr. Fa was kind enough to let me and Mr. Knight have a photocopy of this judgment which at the moment cannot be located in the Court Registry.

I have previously cited this judgment with approval on at least one occasion but as the facts in Waisake Ratu No. 2 and Another v. Native Land Development Corporation and Another are different from those in the instant case it does not assist me in deciding the present motion.

Section 4 of the Native Lands Trust Act Cap. 134 reads as follows:

"The control of all native land shall be vested in the Board and all such land shall be administered by the Board for the benefit of the Fijian owners."

But in my judgment that does not help the Defendants because as I have said I am not satisfied that on the pleadings and evidence as they stand it is expedient to appoint any representative of interested persons under Rule 15.

There is however an even stronger reason in my judgment for not accepting the Defendants' submission here, namely as pointed out by Mr. Knight for the First Plaintiff, that the order I made on the 18th of August which was sealed on the 19th of August does not refer to the Second, Third and Fourth Defendants as being representatives of anybody else.

Paragraph 2 of the order reads:

"That the Second, Third and Fourth Defendants whether by themselves or by their agents or servants or any of them or otherwise be restrained from erecting a roadblock on or in any way interfering with the free passage with or without vehicles of the First Plaintiff, its servants, agents or licensees over the said roadway until further order."

It is now well established law that the discretion to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the original rule that a successful litigant is entitled to the fruits of its litigation pending the determination of any appeal. My brother Pathik J. in a recent judgment of the 26th of September 1997 refers to most of the authorities usually cited in applications such as the present and I can say no more than that I respectfully adopt his reasons in the instant case. See Civil Action No. 407 of 1992 Peter G.J. Eyre v. Estate Management Services Limited and Another.

I consider the present application has been a waste of the Court's time. I can find no merit in it and I accordingly dismiss the motion of the 2nd of October except for the prayer that the time for filing the Notice of Appeal be extended until leave is granted by this Court. Mr. Knight conceded that this should be done but his concession does not alter the fact that on the ground argued by the Defendants they have not been successful on their motion.

On this basis I think it arguable that the Plaintiff should receive its costs on an indemnity rather than a party and party basis. I shall now hear argument on this question.

JOHN E. BYRNE
JUDGE

Legislation and cases referred to in ruling:

Native Land Trust Act Cap. 134.

Rules of High Court Order 15.

Civil Action No. 407 of 1992 Peter G.J. Eyre v. Estate Management Services Limited and Another - unreported judgment of Pathik J. dated 26th September 1997.

Civil Action No. 580 of 1984 Waisake Ratu No.2 and Another v. Native Land Development Corporation and Another - unreported judgment of Cullinan J. dated 24th February 1987.

The following additional authorities were mentioned in argument:

High Court Rules 1988 Order 59.

Civil Appeal ABU0016 of 1996 United Apparel (MFG) Limited v. Saville Heaton & Company Limited - unreported judgment of Byrne J. dated 1st November 1996.

Hbc0344x.97s