Narawa v Director of Fisheries [2005] FJHC 116; HBC0182j.2001s (20 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 182 OF 2001

Between:

PENI NARAWA
Plaintiff

and

1. DIRECTOR OF FISHERIES
2. THE ATTORNEY-GENERAL OF FIJI
Defendants

Mr. S. Valenitabua for Plaintiff
Ms. M. Rakuita for Defendants

JUDGMENT

The plaintiff brings this action claiming from the first defendant the sum of $16,720.00. This is the estimated sum by him being the cost of filling part of a swamp on the plaintiff’s land situated adjacent to the Queens Highway at Galoa in Serua.

Background

The plaintiff is the registered owner of land situated in Serua known as “Gau” as more particularly described in C.T. 25313.

The first defendant is Head of the Fisheries Division of the Ministry of Agriculture, Fisheries & Forestry having their registered office at Draunibota in Lami.

The Director of Fisheries (first defendant - the D1) was constructing a ‘prawn pond’ in Serua. The D1 needed to use soil from a piece of land adjacent to the plaintiff’s land. So in order to get to the adjacent land D1 needed to cut a road across the plaintiff’s land.

In or about July 1999 it was agreed between the parties that the plaintiff was to be compensated for damages caused by the roading works. The compensation was to be in two forms. Firstly, monetary compensation for damages to fruit trees felled. This was paid and that is not in issue. Secondly, the filling up of the swamp area at the back of the plaintiff’s property with loose soil cleared from the roading work.

While this agreement was in place D1 decided to buy loose soil from the plaintiff’s land. The purchase price for this soil has been paid which left a balance of $640.56 to be paid.

The swamp at the back of the plaintiff’s land was not filled. According to the plaintiff the estimated cost of filling the swamp is $16,720.00 and that is the subject-matter of his claim.

Issues for determination

The issues for the Court’s determination are as follows (as stated in the Pre trial Conference Minutes):

1. Whether the Defendants had agreed to compensate the Plaintiff for damage to his property by the roading over it.
   
2. Whether the compensation paid for the loose soil was sufficient to fulfil the agreement and discharge the Defendants from their obligation.
   
3. Whether the Defendants were supposed to fill the whole of the swamp even if the loose soil produced by the roadwork was not enough to fill up the swamp.
   
4. Whether the Defendants are liable to complete the swamp fill or pay the sum of $16,720.00 to the Plaintiff as compensation.
   

Defendants’ contention

To make the pond D1 had to get soil from Mohan’s property as well as from the plaintiff’s property. An access road had to be built through the plaintiff’s land.

The witness for the defendant said that they partly filled the swamp and any soil used for construction the plaintiff was to be compensated. The plaintiff was compensated for soil.

When asked by Court the witness said that they filled a quarter of the swamp area i.e. close to half an acre. When asked why they did not fill the swamp he said that ‘we paid for the soil’. He said that they paid $1000 for the soil taken away instead of filling the swamp with this soil as he was ‘instructed by the boss’. The witness was told of the alleged agreement between the plaintiff and D1.

Consideration of the issues

At the hearing of the case the plaintiff Peni Narawa testified. The evidence for the defendants was given by Anan Prasad, Senior Fisheries Assistant and Officer in Charge of Project.

I find as fact that there was an oral agreement between the plaintiff and D1 as to what work was to be done and how the plaintiff was to be compensated. This was confirmed in the writing on 5 July 1999 by the plaintiff. This was further confirmed in writing by D1.

As already stated the first part of the agreement, namely, payment for fruit trees have been satisfied.

The only issue remaining is what compensation, if any, is payable for not filling the swamp.

In this regard all that the agreement says is that ‘the filling-up of a swamp area at the back of the Plaintiff’s property with loose soil cleared from the roading work’.

The agreement is so general that, inter alia, there is no indication what area of the swamp was to be ‘filled-up’ apart from stating the loose soil was to come from the roading work. It is not stated whether there will be enough soil from the road-work to do this. If not, where was the soil to come from to comply with the agreement to fill the swamp.

There is no dispute that $1000 was paid to plaintiff for the soil from the road-work. There is nothing to say that the agreement was varied because of payment for loose soil from the road-work. It is not stated how this will affect the agreement to fill-up the swamp. What if there was a shortage of loose soil to fill-up the swamp.

There is substance in the defendants’ counsel’s submission that the filling-up of the swamp was to be from the loose soil from the roading work. The defendant, however, does concede that he did not use all the loose soil on the swamp but that the plaintiff was paid for the loose soil instead of being used in the swamp and he says ‘this is enough to fulfil the obligations of the defendants under the agreement.’ Counsel submits that the plaintiff in accepting payment for the loose soil that was carted away discharges the defendant from the obligation to use the said loose soil to fill-up the swamp and satisfies the terms of the agreement.

I find as fact that the plaintiff accepted the D1’s offer to fill the swamp with the loose soil from the ‘roadworks’. This is evidenced by the fact that he allowed D1 to continue his work through his property and accepted payment for loose soil. He cannot now complain that the swamp was not filled when he himself allowed the loose soil to be taken away and getting paid for it.

On the evidence before me I find as fact that the swamp was to be filled from the loose soil from the plaintiff’s land.

However, because the plaintiff sold some soil from his land to the defendant the defendant was not able to do the filling as the plaintiff expected.

Therefore it cannot be said that it was the fault of the defendant that the filling was not done to the extent the plaintiff expected. The plaintiff cannot have his cake and eat it too. There was no agreement that the defendant was going to bring the soil from elsewhere and fill-up the swamp which area is not defined.

Conclusion

To conclude, I find as fact that in terms of the agreement between the parties, the defendant fulfilled this agreement by, as counsel says, by filling-up part of the swamp with some of the loose soil and paying the plaintiff for whatever loose soil the defendant carted away for his own use.

The following passage from the judgment of Lord Atkin in the Privy Council case in United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 30 and referred to by D1’s counsel is apt:

“.... if a man is entitled to one of two inconsistent rights it is fitting that when with full knowledge he has done an unequivocal act showing that he has chosen the one he cannot afterwards pursue the other, which after the first choice is by reason of the inconsistency no longer his to choose”.

The plaintiff wants the sum of $16,720.00 to be paid to him for the cost of filling-up the whole swamp, but there was no agreement to do that in the face of the evidence before the Court. By his own conduct and accepting payment the plaintiff cannot expect D1 to do any more than what he did in regard to the filling-up of the swamp.

For these reasons, I hold that the plaintiff has not proved his claim on a balance of probabilities. He was paid the sum of $1000.00 for the loose soil which the defendant bought from the plaintiff which left the balance sum of $640.56. There will therefore be judgment against the defendants in the sum of $640.56 to be paid to the plaintiff forthwith.

Each party bear his own costs in the circumstances of this case.

D. Pathik
Judge

At Suva
20 May 2005