IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0409D.1996L

Between:

VED PRAKASH
of Tau Malomalo Nadroga Storekeeper.
Plaintiff

And:

NATIVE LAND TRUST BOARD
a statutory body duly constituted under
the Native Land Trust Act Cap. 134.
First Defendant

FILIPE KUBUYAWA
of Tau Malomalo Nadroga Villager.
Second Defendant

Counsel: G P Shankar for the Plaintiff
S. Tabakanalagi for the First Defendant

Date of Hearing: 26 March 1999
Date of Decision: 6 October 2000

DECISION

On 19 December 1996 the plaintiff sought an injunction restraining the defendants, their servants agents or other members of mataqali Liodre from building or constructing any structure or building and/or from interfering with the plaintiff's quiet use and occupation of the property comprised and described in native lease No. 21168. The matter has been adjourned several times and was dealt with in chambers on 6 March 1999.

The parties rely on the following documents in these proceedings:

1.	Plaintiff's writ of summons and statement of claim dated 10 December 1996;

2.	Ex parte application for injunction dated 10 December 1996; and affidavit in support of Ved Prakash sworn 10 December 1996;

3.	Affidavit in reply of Peni Vaniqi sworn 23 January 1997;

4.	Affidavit in reply of Filipe Kubukawa sworn 8 February 1997;

5.	Supplementary affidavit of Tevita Rabuli sworn 2 May 1997;

6.	Statement of Defence dated 2 May 1997;

7.	Summons dated 29 January 1999 for judgment in default of service of statement of defence and affidavit of Ved Prakash dated 11 January 1999.

The parties have also filed extensive written submissions.

Although the first defendant had filed a defence on 2 May 1997, it failed to serve the same on the plaintiff's solicitors or their agents. Learned counsel for the plaintiff sought default judgment against the first defendant be entered. However, the court will not do so. While it does not excuse the first defendant's oversight, the plaintiff has not been adversely affected in any appreciable manner. It had taken the preliminary step of filing the defence in the High Court Registry and it was open to the plaintiff to ascertain this fact had it chosen to do so. By the same token the High Court Rules obliged the first defendant to serve its defence on the plaintiff and the costs of the applications presently before the court will be awarded against it.

In respect of the injunction sought, the issue in the court's respectful opinion is self evident. It is trite law that injunctions may only be sought to protect existing legal rights. In clause 6.1 of the plaintiff's statement of claim the plaintiff admits that his native lease No. 21168 was for a term of twenty-five years with effect from 1 July 1968 to 30 June 1993. Since then he has essentially had a tenancy at will as the said lease has expired and yet to be renewed. In his statement of claim, the plaintiff has sought a declaration that the first defendant is obliged and/or under a duty to renew the lease. He also seeks an order requiring the first defendant to renew the said lease as well as the injunction. What is apparent from his affidavit sworn 10 December 1996, is that the plaintiff is not as concerned about renewal of the lease as he is about the issue of compensation for his property bearing in mind clause 17 of the said lease. It states:

"(17)	Subject to the provisions of the Native Land (Leases and Licences) Regulations, Cap. 134 any building created by the lessee on the land hereby leased shall be removable by the lessee within three months after the expiration of the lease provided that -

(i)	before the removal of any building the lessee shall have paid all rent owing by him and shall have performed or satisfied all his other obligations to the lessor in respect of the leased land;

(ii)	in the removal of any building the lessee shall not do any avoidable damage to any other buildings or other part of the leased land;

(iii)	immediately after the removal of any building the lessee shall make good all damaged occasioned to any other building on other part of the leased land;

(iv)	the lessee shall not remove any building without giving one month's previous notice in writing to the lessor of his intention to remove it;

(v)	at any time before the expiration of the notice of removal; the lessor, by notice in writing given by him to the lessee, may elect to purchase any building comprised in the notice of removal, and any building this elected to be purchased shall be left by the lessee and shall become the property of the lessor who shall pay to the lessee the fair value thereof to an incoming lessee of the land; and any difference as to the value shall be settled by arbitration in the manner provided for by the said Regulations;

(vi)	if the lessee applies for a renewal of this lease the provisions of this condition shall be deemed to cease to apply as from the date of the application of the lessee for a renewal of the lease, and thereafter the whole matter shall be dealt with under the provisions of the said Native Land Leases and Licences) Regulations Cap. 134."

In the court's respectful opinion the plaintiff has no legal right to remain on the said lease which can be protected by an injunction. He is more properly concerned about what compensation he might reasonably expect for his property. The Native Land (Leases and Licences) Regulations as presently drafted appear to exclude the possibility of compensation for property on native leases where such leases are expiring.

However, that is not the end of the matter. Section 40 of the Constitution which protects against compulsory acquisition of property without compensation is open to the plaintiff for relief. True it is that the military government purported to abrogate the same by virtue of Decree No. 1 of 2000 on 29 May 2000. However the legality of that action and instrument is presently before the courts for adjudication. In the absence of a definitive pronouncement, this court will assume the Constitution is extant on the basis that there have yet to be any judicial findings otherwise.

Section 40 is part of Chapter 4 which deals with the Bill of Rights. Subsection (i) (a) of section 21 binds the legislative, executive and judicial branches of government at all levels central, divisional and local. The court understands this to mean that in exercising its judicial function it 

is obliged to apply the provisions of the Bill of Rights where relevant to all parties that appear before it. Therefore the provisions of section 40 must be given as wide an application as possible bearing in mind section 3 of the Constitution which states:

"3.	In the interpretation of a provision of this Constitution:

(a)	a construction that would promote the purpose or object underlying the provision, taking into account the spirit of this Constitution as a whole, as to be preferred to a construction that would not promote that purpose or object; and

(b)	regard must be had to the context in which this Constitution was drafted and to the intention that constitutional interpretation take into account social and cultural developments, especially;

(i)	developments in the understanding of the content of particular human rights; and

(ii)	developments in the promotion of particular human rights."

The preamble to the Constitution reinforces the emphasis on human rights in these terms stating inter alia:

"Reaffirming the recognition of the human rights and fundamental freedoms of all individuals and groups; safeguarded by adherence to the rule of law, and our respect for human dignity and for the importance of the family."

What those provisions underscore is the regard placed on the rights set out in Chapter 4 of the Constitution. It is the function of the court to give full effect to those rights bearing in mind certain factors. However those considerations need to be balanced with section 6(i) and (j) which are part of the principles of the Compact in Chapter 2 of the Constitution. They provide:

"6.	The people of the Fiji Islands recognise that, within the framework of this Constitution and the other laws of the State, the conduct of government is based on the following principles:

(i)	to the extent that the interests of different communities are seen to conflict all the interested parties negotiate in good faith in an endeavour to reach agreement;

(j)	in those negotiations, the paramountcy of Fijian interests as a protective principle continues to apply, so as to ensure that the interests of the Fijian community are not subordinated to the interests of other communities."

Section 7(2) then provides that in the interpretation of the Constitution "consideration must be given to those principles, (of the compact) when relevant."

In considering section 40, the court is of opinion that it protects tenants with properties under expiring native leases and allows them to seek fair compensation for improvements they have made to the land during their occupancy. In the court's respectful opinion, the present state of affairs where the landowners acquire ownership of permanent structures on expiring leases that cannot be removed is akin to a form of compulsory acquisition. The tenant often has very little choice in the matter. Subsection (1) makes specific reference to deprivation of property "by the state otherwise than in accordance with a law." What has to be borne in mind is the principle encapsulated therein: the protection of private property against arbitrary interference whether it be the government or from any other institution. In The Attorney-General v Dow (1994) (6) BCLR (Botswana) Amissah JP in discussing fundamental rights stated as follows at 24F:

"Fundamental rights are confessed on the basis that irrespective of the government's nature or predilection, the individual should be able to assert his rights and freedoms without reliance on its goodwill or courtesy. It is protection against possible tyranny, oppression or deprivations of those self same right. A fundamental right or freedom once conferred by the constitution can only be taken away or circumscribed by an express and unambiguous statement in that constitution or by a valid amendment."

The court respectfully adopts those dicta in these proceedings. Implicit in those remarks is the rationale that provisions conferring rights must be given a broad and purposive interpretation as was enunciated by the House of Lords in The Minister of Home Affairs v Fisher [1980] AC 319 Where a scenario such as the present occurs than it must be compensated which in the respectful opinion of the court is consonant with the spirit and intent of the provision. 

It matters not that in the present circumstances it is the native landowner taking back his/her land with the improvements the tenant has made. Subsection (2) sets out the specific laws that authorise compulsory acquisition and in the court's respectful opinion the Native Lands (Leases and Licences) Regulations are outside its ambit. Simple justice and equity require the principle in section 40 to be extended to this situation because the option someone in the plaintiff's position has of removing a permanent structure and rebuilding it elsewhere is merely illusory given the costs involved. This is not an ethnic problem, it is a very real human problem where tenants with expiring leases irrespective of ethnicity have had to walk away leaving all they built behind with little or nothing to show for it. 

Is this compatible with section 6(j) and the "paramountcy of Fijian interests as a protective principle?" The court believes it is. The basis for the harmonisation is that tenants with expiring native leases with properties that can be assumed without compensation may belong to any ethnic community. Fijian interests in the court's respectful opinion cannot be considered a protective principle in such situations where an ethnic Fijian is subject to the same fate as the plaintiff presently faces. There is often a fine line between what is protective and that which is oppressive, shades of grey if you will. Everyone has the right to some form of protection as a basic human right for the plaintiff's plight is an occurrence that will become commonplace as pressures on land continue to increase for various reasons.

As in the case of Hari Prasad v Native Land Trust Board Civil Action No. HBC0377 of 1998L, the court reiterates the position it adopted there that entitlement to compensation does not necessarily justify a party remaining on the subject property, compensation being independent of the right to possession.

The application for injunction by the plaintiff and for judgment in default of service of statement of defence is refused injunctive relief being a discretionary remedy but the plaintiff is entitled to seek compensation for his property pursuant to section 40 of the Constitution irrespective of the provisions of the Native Lands (Leases and Licences) Regulations. These proceedings are accordingly adjourned for assessment of compensation in accordance with the provisions of section 40 of the Constitution. Costs are summarily assessed against the defendant for $500.00

Joni Madraiwiwi
PUISNE JUDGE

At Suva
6 October 2000