Vuluma v Fiji Sugar Corporation Ltd [2005] FJHC 333; HBC0308.2003L (28 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0308 OF 2003L

BETWEEN:

SAMISONI VULUMA
Plaintiff

AND:

THE FIJI SUGAR CORPORATION LIMITED
Defendant

Mr. K. Vuataki for the plaintiff
Mr. F.Y. Hanif for the defendant

Date of Hearing: 2 May 2005 and 3 October 2005
Date of Judgment: 28 October 2005

JUDGMENT

The plaintiff by Originating Summons seeks the following relief:

(a) A declaration that the defendant trespassed onto and damaged 9,066 squares of Tokatoka Natubawai land commencing at Vuikorolevu thence to Saru creek thence to Nawacia thence to Nadaladala thence to Tabaleicagi thence to Matabia thence to Tukotara.

(b) A declaration that such trespass was high handed and insolent and deprived Tokatoka Natubawai of means of livelihood and their right to life over 9,066 square meters of land.

(c) A declaration that the defendant is liable for aggravated damages for trespass over such lands and physical damage thereto.

(d) A declaration that the defendant in a high handed and insolent manner has trespassed onto such lands and laid permanent fixtures of a road and water pipes under such access road and is thereby liable penal damages.

(e) An order that damages if established be assessed or alternatively this action be turned into a writ action if liability be disputed.

(f) An order by way of injunction that the defendant secure consent of Tokatoka Natubawai for defendant to have easement on portion of Tokatoka Natubawai land trespassed upon and negotiate with Native Land Trust Board for easement and or lease over the land trespassed upon or alternatively remove their road and piles from land.

(g) Any other order the Honourable Court deems just for rehabilitation of Tokatoka Natubawai land affected.

(h) Costs on a solicitor client indemnity basis.

At the commencement of the hearing, counsel for the plaintiff indicated that the relief sought in paragraph (c), that is the aggravated damages, was no longer sought.

Background

The Tokatoka Natubawai owns Native Land Commission Lot 29 which is native land. The plaintiff is a member of Tokatoka Natubawai.

On the 26^th September 1926 the Mataqali Nadakuvatu, Noibatiri, Vidilo, Matarisiga and Tunuloa granted 3,177 acres of part of their lands to the Crown for public purposes. The Mataqali Nadakuvatu, Noibatiri, Vidilo, Matarisiga and Tunuloa comprise part of the Yavusa Saru, which has 7 Mataqali in total. The grant was made under Native Grant No. 187. The grant area by the 5 Mataqali became known as the Lautoka Water Reserve. The land covered under the grant comprised of two parts, Part A and Part B which are referred to in the affidavit filed in the proceedings on behalf of the defendant and sworn by Alipate Radrodro on the 17^th May 2004.

On the 27^th September 2006 a title was issued for the area covering the Lautoka Water Reserve land. The legal description of the land comprising the Lautoka Water Reserve is Certificate of Tile Register Vol. 50, Folio 4999. The Director of Lands for and on behalf of the Crown became the registered proprietor of the Lautoka Water Reserve land, including part of the Lot 29, the plaintiff now claims is owned by his Tokatoka Natubawai.

Prior to the native grant, the Tokatoka Natubawai of the Mataqali Nadakuvatu owned Native Land Commission Lot 29, described in the Register of Native Lands as Volume 4, Folio 58.

Under Native Grant No. 187, only part of Lot 29 was granted by the landowners. By reference to Annexure AR4 to the affidavit of Alipate Radrodro sworn on the 17^th May 2004, the area bounded by the black lines delineates the boundary of Lot 29. The area to the right of the blue lines is Part A of Native Grant No. 187 and the pink line is Part B of Native Grant No. 187, which comprises a narrow strip following the FSC pipeline. All of the land that carries FSC’s pipeline which is the subject of these proceedings is contained in Parts A and B of Native Grant No. 187. The area hatched in green is the rest of the Lot 29 that is not part of Native Grant No. 187 and that area does not contain any of Fiji Sugar Corporation’s (FSC) pipeline.

FSC owns and operates the Lautoka Sugar Mill. The sugar mill requires large amounts of water and FSC draws this water from Saru Dam. The dam has been the main source of water supply to the mill since 1903. The water is piped from the dam to the mill by a single pipe. FSC holds a special water catchment lease from the Director of Lands to enable it to draw water from the dam. The lease is for 99 years commencing from 1968.

In or about February 2003, work commenced to replace the pipeline which resulted in a new pipeline being laid adjacent to the existing line of pipes.

Evidence placed before the Court by way of affidavit from the surveyor, Mr. Ami Chand who confirms that Part A of the Native Grant No. 187 is to the right of the blue line referred to in Annexure “AR4” to the Radrodro affidavit and Part B of the Native Grant No. 187 is to the left of the blue line. It is considered by the plaintiff and defendant that the pipeline, the subject of these proceedings is wholly within Native Grant No. 187.

It is the plaintiff’s contention that the plaintiff as reversioner has the right to recover damages for trespass. It is considered by the plaintiff that the plaintiff’s rights depend entirely upon of it being a reversioner.

The fundamental issue for the determination of the Court is whether the plaintiff is in fact a reversioner with respect to the subject land and therefore has standing to bring these proceedings.

Section 8 of the Crown Lands Act provides:

“When any native land which is been acquired by the Crown for public purposes under the provisions of the Crown acquisition of Land Acts or any other written law is no longer required for such purposes, the Minister, after consultation with the Cabinet, may, by order, declare such land to be native land and such declaration shall be recorded in the name of the unit from which it was acquired in the register of the native lands kept under the provisions of Section 8 of the Native Lands Act.”

The plaintiff is indeed the landowning unit from which the land was acquired, however, the only evidence before the Court with respect to compliance with section 8 of the Crown Lands Act, is that on the 19^th January 1999, there was a Cabinet determination that the subject land was no longer required for the original purpose of the grant. There is no evidence that the Minister has ordered in accordance with the provision of section 8. This being so there would appear to be no reversion to the plaintiff as section 8 has not been complied with. Cabinet’s determination is only one of the steps prescribed by section 8 to cause the land to revert to the reversioner.

It follows therefore at all relevant times the subject land vested in the Director of Lands and accordingly, the plaintiff has no standing to seek the orders sought in the Originating Summons.

Orders of the Court

1. Originating Summons is dismissed.

2. Plaintiff is to pay the defendant’s costs as agreed or assessed.

JOHN CONNORS
JUDGE

At Lautoka
28 October 2005