Delana v Delana [1999] FJHC 101; Hbc0185j.97s (27 August 1999)

Fiji Islands - Delana v Delana - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

ACTION NO. HBC 0185 OF 1997

AND:

WAISEA DELANA, AMANI BOGILEKA
AND THREE OTHERS
Defendants

T. Fa for the Plaintiffs
R. Matebalavu for the Defenda/span>

Dates of Hearing: 30th September 1997, 14th, 15th, 16th April, 10th August 1998
Dates of Submissions: 24th August, 21st, 29th September 1998
Date of Judgment: 27th August 1999

JUDGMENT

The Plaintiffs commenced these proceedings by way of Notice of Motion moved ex parte before me on the 16th of May 1997. The dispute concerns the lawful custody of the keys to the Nakorovou Village Community Hall and in my orders of the 16th May I directed that the Defendants forthwith surrender those keys to the First Plaintiff as the Turaga ni Koro and further that the Defendants be restrained from in any way interfering with the performance by the First Plaintiff of his duties as Turaga ni Koro and concerning the Community Hall.

It is alleged by the Plaintiffs that the order of the 16th of May was served upon the Defendants.

By Notice of Motion dated 23rd May 1997, the Plaintiffs moved ex parte for leave to issue committal proceedings against the Defendants. Having been granted leave they subsequently sought orders of committal by Notice of Motion of 17th July 1997.

Meanwhile the Defendants issued a Summons on the 27th of May 1997 seeking inter alia discharge of the interim injunction of the 16th of May 1997.

It is agreed by the parties that the fate of the proceedings by the Plaintiffs and the relief to be obtained by them depends on whether or not the Defendants' application succeeds.

Let me say immediately before considering the evidence that once again it seems to me a great pity as a Judge who has for the term of his appointment here heard several applications of this nature, as have other Judges of this Court over the years, that disputes such as this should be aired in the Courts of this country. In my view such disputes are essentially family matters in the broadest sense of that word and thus the Courts are not the proper forum for the resolution of such disputes. I firmly believe in the light of my experience and as one who has always had a love for Fiji that the Native Lands Commission should be the exclusive body charged with the resolution of disputes of the nature of that in this case. I sincerely hope Parliament will see fit to address this question in the foreseeable future.

Having said that I turn briefly now to consider the evidence much of which was repetitive. Both Plaintiffs allege that the First-named Plaintiff is Turaga ni Koro for Nakorovou Village. However the First Plaintiff concedes that he was not the sole Turaga ni Koro in that another faction led by the First named Defendant also claims to be Turaga ni Koro. The Plaintiffs claim that Waisea Delana is the Turaga ni Koro only of his own faction and I agree. There is evidence in the form of a letter dated 3rd December 1996 from the Permanent Secretary for Fijian Affairs giving the First-named Plaintiff and his group the right to be called Turaga ni Koro. Also annexed to that affidavit is a copy letter dated 30th December 1996 from the Provincial Council to the Second Defendant which contains a plea to the Second Defendant to co-operate with those in authority so as to promote reconciliation and goodwill in Nakorovou Village. These documents have not been challenged by the Defendants.

Likewise in paragraphs 8 and 9 of the same affidavit the First Plaintiff does not deny that the Second Defendant was the Turaga ni Koro of the dissident group or for that matter the existence of such a group. Thus in my judgment it is wrong for the Defendants to submit that the Plaintiffs have been guilty of the suppression of material facts which would entitle them to have the injunction dissolved. I am therefore satisfied that the Plaintiffs disclosed all relevant material to the Court when seeking the injunction on the 16th of May 1997.

The evidence satisfies me that the Defendants were properly served with the Notice of Motion for an Order of Committal. An Affidavit of Service was sworn by one Ilaitia Navunisaravi on the 17th of June 1997 and the Defendants did not seek leave to cross-examine Mr. Navunisaravi on the contents of his affidavit.

In those circumstances strictly speaking the injunction should not be dissolved but it seems to me as a matter of equity that enough may well be enough and I therefore propose to hear argument on the question of whether the parties consider it will serve any further use to keep the injunction in force.

It also follows from that that the Defendants should plead to the charge of Committal against them but again I wonder whether any useful purpose is to be served by this. It is true that there is evidence they have disobeyed the Court order but again I wonder whether any useful purpose is to be served by punishing them either in the form of a fine, let alone imprisonment, if I find them guilty.

Accordingly I refuse to dissolve the injunction but shall now hear argument as to whether it should be continued and on the matter of the committal proceedings. I shall also hear argument on the question of costs.

JOHN E. BYRNE
JUDGE

Hbc0185j.97s