Mataitini v Director of Lands [2000] FJHC 154; HBC296.1998 (31 March 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 296 of 1998

Between:

WAISEA MATAITINI
Plaintiff

And

DIRECTOR OF LANDS

NATIVE LAND TRUST BOARD

CONSERVATOR OF FOREST

THE MINISTER OF COMMERCE, TRADE & PUBLIC ENTERPRISE

THE ATTORNEY-GENERAL OF FIJI

FIJI HARDWOOD CORPORATION LIMITED
Defendants

Mr. I. Fa for the Plaintiff
Mr. E. Walker for the 1st, 3rd, 4th & 5th Defendants
Mr. S.P. Naqase for the 2nd Defendant
Mr. W. Clarke for the 6th Defendant

DECISION

On 14 June 1998 the Plaintiff RATU LASARO DROTINI (now deceased) issued a Writ of Summons for and on behalf of the members of the Mataqali Nakauraki in the Province of Serua claiming certain declarations and an injunction restraining the 1st, 2nd, 3rd, 4th and 6th defendants, their servants and/or agents in any manner or form from dealing with the forest resources planted on the Mataqali’s lands and dealing with its lease rights without its consent. The plaintiff’s claim is set out fully in the Statement of Claim filed with the Writ.

The said Ratu Lasaro Drotini is dead now and leave was granted by Court to substitute WAISEA MATAITINI as the plaintiff in this action.

The Statement of Defence has been filed by the defendants. They have now each applied to Court to strike out the Statement of Claim as it discloses no reasonable cause of action. The applications are made under Or.18 r18 (1) (a) of the High Court Rules 1998 which provides:

18(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that -

1. it discloses no reasonable cause of action or defence, as the case may be, or
   
2. .....
   

100. .....
     

4. .....
   

As ordered, written submissions have been filed (the last of them filed on 14 January 2000) by all counsel representing the respective defendants. I have given due consideration to these submissions.

The Plaintiff says that he is a member of the Mataqali in question and is the duly appointed representative of the members of the said Mataqali authorized to commence these proceedings for and on behalf of the members in a representative capacity.

The Plaintiff on behalf of the Mataqali alleges that the second defendant has committed a wrong by dealing or intending to deal with their lease rights without their consent. Further, the second defendant as a statutory trustee has failed in its duty of care towards the Plaintiff by failing to act in the best interest of the Plaintiff when dealing with the land in question. The Plaintiff says that:

That the 1st, 2nd, 3rd and 4th Defendants had unlawfully and negligently permitted dealings, intended dealings and vesting of the Plaintiff’s rights to the forest resources and rights stipulated in the above-mentioned leases to the 6th Defendant in breach of the Plaintiff’s rights to the said forest plantation and rights pursuant to the leases.

The defendants claim that the Plaintiff in his personal capacity does not have any legal standing to bring such claim and have applied for the action to be struck out. They doubt the ‘locus standi’ of the Plaintiff to institute proceedings although he is a member of the said Mataqali and has been allegedly authorised by the Mataqali to bring this action.

The defendants say that the land is owned communally and no one can individually bring an action on such communally owned property whose members are individuals and closely knitted together in their life time and others who are yet to be born. As authority for that proposition they rely on the statement by Hammett J in the case of Meli Kaliavu & Others v. NLTB [1956] 5 FLR 17. In Kaliavu it was held, inter alia, that "it was not however open to individual members to issue and recover damages in their own personal capacity. Nor could the plaintiff succeed in their personal claim to the equitable remedy of an injunction". The facts in that case as stated in the headnote is as follows:

The plaintiffs, five of a mataqali of some 150 members, instituted this action against the Native Land Trust Board. They claimed damages and an injunction restraining the defendant Board from granting a lease to one Yee Cheng Foo of a portion of the land owned by their mataqali. The plaintiffs sued in their personal capacity as members of the mataqali and not in a representative capacity on behalf of the mataqali.

In this case the locus standi of the plaintiff is questioned by the defendants. When ‘standing’ is in issue in a case "the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable" [Warren C.J. in Flast v Cohen, (1968) 392 U.S. at pp.98-100].

The locus of the plaintiff in this action is different from that of the plaintiffs in Kaliavu. Here the plaintiff is suing in a representative capacity on behalf of the mataqali.

The question of locus and the capacity in which a plaintiff could commence proceedings has been discussed by Byrne J in Ratu Malakai Rokodinoko Waqatabu and Native Land Trust Board and Josefata Volisara Dobui (Action No. 323 of 1993). His Lordship quoted at length on this aspect from the judgment of Cullinan J in Waisake Ratu & Others v Native Land Trust Board (Civil Action No. 580 of 1984). In Waisake Ratu His Lordship commented and expounded on the decision in Meli Kaliavu (supra).

At the risk of being lengthy for completeness and to give a clear picture of the situation I ought to refer to extracts from Cullinan’s judgment which I consider pertinent.

Commenting in Hammett J’s Statement in Meli Kaliavu he said:

"The learned Judge (Hammett J.) in my view, did not however state that a member of a Mataqali could not sue in person, but that he could not sue in person in respect of what was really a collective right. Again he did not say that a single member of a proprietary unit could not sue for an injunction. As I see it, he simply said that, in the circumstances of that case, as the plaintiff had no personal rights in the matter and were not therefore entitled to damages, no personal rights had been infringed and therefore an injunction could not be granted. That is a far cry however from saying that, in a proper case, a member of a proprietary unit ...................... cannot sue in his own right in respect of a personal right and succeed in his claim for damages and an injunction".

His Lordship further went on to say:

"I would be slow to interpret the section as meaning thereby that the Legislature intended that the native owners, comprising 50% of the population, holding 85% of the lands of Fiji, should be excluded in person from the Courts of Fiji."

He further said, and this is pertinent, that:

"In my judgment the provisions of section 23 are but enabling in character, that is, they enable the Board, though not vested with native lands, to nonetheless conduct suits in respect thereof: the provisions provide for a convenient statutory form of representative action, the aspect of convenience being emphasised by the latter provisions of subsection (2) of the section. Section 23 in my view merely confers a discretion upon the Board, if so requested by the native owners, to commence, prosecute and carry on litigation respecting native land, but does not exclude the native owners, nor in a proper case a member or members of the proprietary unit, from initiating and conducting any such action. That being the case, I find that the first plaintiff’s claim is properly before me."

I find that the above comments are apt and can be applied to the facts of this case.

I therefore find that the defendants’ arguments as to locus do not hold any water.

The issue of representative action has also been raised. Or.15 r14 of the High Court Rules authorises representative actions. The Plaintiff at paragraph 2 of his Statement of Claim stated that he was duly authorised to represent the mataqali.

The plaintiff has also correctly argued that no evidence shall be admissible at this stage of the proceedings as stipulated under Order 18 rule 18(2).

I am therefore of the view that the representative action issue is undisputed in this interlocutory proceeding and can only be put to strict proof during the trial.

The application to strike out this action is an interlocutory proceeding and the purpose is to ensure that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation [Castro v. Murray (1875) 10 Ex213].

However, the categories of conduct rendering a claim frivolous, vexatious or an abuse of the process are not closed but depend on all the relevant circumstances and for this purpose, considerations of public policy and the interest of justice may be very material.

It is my view that the defendants’ application which was the cause of this interlocutory proceeding should be dismissed because of the Plaintiff’s submission on representative action.

The defendants have applied to strike out this action pursuant to Or.18 r1 (a) in that no cause of action is disclosed. On the facts before me I reject this argument for the purposes of this application and rely on the following passage in the Notes to The Supreme Court Practice 1979 under Or.18 r.19/5 which I consider pertinent:

"There is some difficulty in affixing a precise meaning to" this term. "In point of law, every cause of action is a reasonable one" (per Chitty, J., Rep. Of Peru v. Peruvian Guano Co., 35 Ch. D. p.495). A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered (per Lord Pearson in Drummond-Jackson v. British Medical Association (1970) 1 W.L.R. 688; [1970] 1 All E.R. 1094, C.A.). But the practice is clear. So long as the statement of claim or the particulars (Davey v. Bentinck [1892] UKLawRpKQB 216; [1893] Q.B. 185) disclose some cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out (Moore v. Lawson, 31 T.L.R. 418 C.A.; Wenlock v Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871, C.A.)].

As I have already stated the Plaintiff has a standing based on representative action under Or 15 r.14. On the facts of this case in applying Rule 18 I have in mind that ‘it is not the practice in civil administration of the courts to have a preliminary hearing, as it is in crime’. In deference to the very comprehensive submissions with authorities made by counsel for all the parties, I would just say that these authorities will be very useful in the trial of the action. In considering this application, it is noted that under Or18 r.2 "no evidence shall be admissible on an application under paragraph (1) (2)". Therefore I rely solely on the facts provided and the facts revealed and that the Plaintiff has instiuted this action under representative proceedings (Or 15 r.14). Whether or not the Plaintiff actually represents the Mataqali has to be proved by him in the trial.

To conclude, on the facts before me I am satisfied that the plaintiff has locus standi to commence these proceedings and that there is a reasonable cause of action. This is not a case where recourse could be had to the summary process under Rule 18. In the exercise of my discretion bearing in mind the facts and circumstances of this case I dismiss the defendants’ application to strike out the action with costs in the cause AND I direct that the action now proceed in the normal way.

D. Pathik
Judge

At Suva
31 March 2000