Tuisawau v Fiji Industries Ltd [1998] FJHC 92; Hbc0164.97 (9 July 1998)

Fiji Islands - Tuisawau v Fiji Industries Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

ACTION NO. HBC 0164 OF 1997

ass=MsoNormal amal align=center style=text-align:center>BETWEEN:

RO ALIVERETI LAGAMU TUISAWAU
AND THREE OTHERS
Plaintiffs

AND:

FIJI INDUSTRIES LIMITED
Defendant

Plaintiffs in Person
J. Howard for Defendant

Date of Hearing - 8th December 1997, 4th March 1998
Date of Ruling - 9th July 1998

RULING

This case illustrates the pit-falls which lie in the path of unrepresented litigants. In the Statement of Claim annexed to the Writ which was issued on the 30th of April 1997 the Plaintiffs claim that they are members of the Vanua Burebasaga of Rewa Province and that the First and Fourth Plaintiff, Ro Mosese Banuve Tuisawau, are members of the Mataqali Vale Levu, which is the ruling tribal unit in the Vanua Burebasaga, Rewa Province and are two of the traditional high chiefs of the people of Rewa and Vanua Burebasaga by virtue of their membership of Mataqali Vale Levu.

The Plaintiffs claim that the Defendant is engaged in the manufacture of cement consisting of ingredients, including coral sand, extracted from the sea. They claim that one area from which the Defendant has been extracting coral sand since approximately 1977 is from within the Plaintiffs' fishing rights boundary and that the royalties paid so far by the Defendant for coral sand so extracted have never been distributed to the Plaintiffs and other co-owners unspecified of that resource. They pray that the Defendant be ordered to pay all future royalties into this Court and that upon such payment the money be released to the Plaintiffs and all identified co-owner Mataqalis.

A defence was delivered by the Defendant on the 11th of June 1997 which denied that the Plaintiffs are the lawful beneficiaries of any royalties paid by the Defendant to-date and that the Plaintiffs are entitled to the prayers made in their Statement of Claim.

On the 6th of August 1997 without leave of this Court the Plaintiffs delivered an Amended Statement of Claim in which they purport to join the Fijian Affairs Board as the Second Defendant. Inter alia they claim the sum of $44,230.85 as the share due to them and their Mataqalis/Tokatokas of the Vanua Burebasaga native fishing rights area.

In its Amended Defence filed on the 7th of August 1997 the Defendant admits that it has and continues to pay royalties for sand it extracts from the Laucala Bay sand banks to the Director of Lands pursuant to an annual licence issued under the Crown Lands (Leases and Licences) Regulations 1980, by the Director of Lands and pays royalties as therein prescribed to the licensor which licence is said to have expired on 30th December 1997.

On the 5th of September 1997 the Fijian Affairs Board issued a Summons seeking various orders relating to the filing of a Statement of Claim and an Affidavit in Reply to the Plaintiffs' Notice of Motion of the 22nd of May 1997 which sought orders that the Defendant, Fiji Industries Limited be ordered to pay all future royalties in respect of sand extracted by it from the Plaintiffs' fishing rights area into this Court commencing with the April/May payments.

The Plaintiffs did not appear on the hearing of this Summons on the 5th of September 1997 when I ordered them to file a Motion and supporting affidavit stating the reasons why the Plaintiffs wished to join the Fijian Affairs Board as a Defendant. This is the Motion presently before me and it purports to be issued under Order 7 Rule 2 of the High Court (sic). This is the first example of what I said at the beginning of this Ruling about the pit-falls that lie in the path of unrepresented litigants. Order 7 deals with Originating Summonses and has nothing to do with a Motion such as that before the Court.

An Affidavit in Reply to that of the Plaintiffs was sworn by Asesela Sadole the Secretary of the Fijian Affairs Board on the 8th of January 1998.

Mr. Sadole deposes, although it is really a submission, that the purported joinder of the Fijian Affairs Board as a Second Defendant is irregular in that the Plaintiffs have not obtained leave from this Court for such joinder.

In addition to obtaining leave Mr. Sadole deposes or submits that the Plaintiffs should have amended the names of the parties on the Writ of Summons, have the Writ re-issued by this Court and served it on the Fijian Affairs Board before this action can proceed further. I agree that for these reasons the present Motion must be dismissed but so that the Plaintiffs may understand better why I dismiss their Motion I must state the law applicable to the action as it stands at present. These reasons are in addition to those claimed by the Fijian Affairs Board.

In my judgment the Plaintiffs lack any locus standi to bring the present proceedings. It will be noted as I said at the beginning of this ruling that the Plaintiffs bring this action as members of the ruling Mataqali of the Vanua Burebasaga and by virtue of that, impliedly have a mandate to bring the action on behalf of their Mataqali and other Mataqalis. The question of individual members bringing an action in their personal capacity and also on behalf of their Mataqalis was first considered by the Courts here in Meli Kaliavu and Others v. Native Land Trust Board 1956-57 5 FLR 17 where it was held that any damage suffered by a Mataqali as the result of any action by the Native Land Trust Board was recoverable if the Board was liable. It was not however open to individual members to sue and recover damages (my emphasis), nor could the Plaintiffs succeed in their personal claim to the equitable remedy of an injunction.

In Timoci Bavadra v. Native Land Trust Board Civil Action No. 421 of 1986 in his unreported judgment of 11th July 1986 Rooney J. held that even if the Plaintiff could show that he had the support of the majority of the adult members of his landholding unit this would not necessarily give him or the people he represented the right to sue. This was because as he said at page 4 of the judgment:

>"A mataqali cannot be equated with any institution known and recognised by common law or statute of general application. The composition, function and management of a mataqali and the regulation of the rights of members in relation to each other and to persons and things outside it are governed by a customary law separate from and independent of the general law administered in this Court."

Moreover according to annexure 'C' of the affidavit of Ro Mosese Banuve Tuisawau on the 20th of November 1997, the Plaintiffs belong to only one of the eight landholding units whose fishing rights are affected by the dredging of Fiji Industries Limited. They have not provided evidence of any form of consent from the other Mataqalis to act on their behalf. Accordingly in my judgment they lack any locus standi to commence these proceedings.

This allegation is made in paragraphs 14 and 16 of the affidavit of Asesela Sadole sworn on the 8th of January 1998 and I agree with Mr. Sadole.

As to the other question whether the Plaintiffs followed the prescribed procedure under the High Court Rules by purporting to include the Second Defendant in their Amended Statement of Claim, I have no hesitation in holding they did not.

Under Order 20 Rule 3(1) of the High Court Rules any party may amend his pleadings without leave of the Court at any time before the pleadings are deemed to be closed.

Order 15 Rule 9(4) states that a person cannot be added as a party until an order under Rule 8 of Order 15 has been served on the party or entered in the cause book.

The Plaintiffs have not complied with any of the above rules.

By Order 15 Rule 6(2) before the Plaintiffs could add the Fijian Affairs Board as the Second Defendant they must have first obtained leave of this Court and they have not done so.

For these reasons I hold that the Motion of the Plaintiffs of the 26th of November 1997 must be dismissed and the Plaintiffs must pay the costs of the Fijian Affairs Board to be taxed if not agreed. Although I have stated that the Plaintiffs have no locus standi to bring this action on the material before the Court, as there is no Motion before me seeking such an order

I could do no more than express my opinion. It will be up to the Defendant and the Fijian Affairs Board to decide whether they now wish to take this matter further.

JOHN E. BYRNE
JUDGE

Authorities referred to in Ruling:

Rules of High Court 1988

Timoci Bavadra v. Native Land Trust Board Civil Action No. 421 of 1986 - unreported judgment of Rooney J. of 11th July 1986.

Meli Kaliavu and Others v. Native Land Trust Board 1956-57 5 FLR 17.