Ah Koy v Native Land Trust Board [2005] FJHC 49; HBC0546.2004 (19 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0546 OF 2004

BETWEEN:

JAMES MICHAEL AH KOY
Plaintiff

AND:

NATIVE LAND TRUST BOARD
1st Defendant

LAISENIA QARASE
2nd Defendant

RATU COKANAUTO TUA’AKITAU
3rd Defendant

RATU TIMOCI VESIKULA
4th Defendant

RATU KALIOVA MATAITOGA
5th Defendant

RATU JEMESA RACACA
6th Defendant

RATU VARANI RAYAWA
7th Defendant

RATU ROMANU MATANITOBUA
8th Defendant

NEMANI BURESOVA
9th Defendant

KENI DAKUIDREKETI
10th Defendant

ASESELA SADOLE
11th Defendant

VANUA DEVELOPMENT CORPORATION LTD
12th Defendant

KALIVATI BAKANI
13th Defendant

JOVECI TUINAMUANA
14th Defendant

EMOSI VITILEVU
15th Defendant

Counsel: Mr. Isireli Fa – for Plaintiff
Mr. Kemueli Qoro – for all Defendants

Date of Hearing & Judgment: 30th June, 2005

JUDGMENT

The first and the second to fifteenth defendants have made an application to strike out the plaintiff’s claim upon the classic grounds that:

1. The plaintiff has no standing to bring this proceedings.
2. The claim discloses no reasonable cause of action.
3. The claim is scandalous, frivolous or vexatious.
4. The claim is otherwise an abuse of process of the court.
   

Reliance is placed on affidavits filed in support of this application in particular that of Semi Tabakanalagi for and on behalf of the 1st defendant.

Background

The plaintiff and his children through a holding company Kelton Investment Limited have a controlling interest in an entity known as the Datec Group of Companies. (“Datec”).

Datec is the frustrated looser in a tender process commenced by the 1st defendant Native Land Trust Board (“NLTB”) for review of all electronic and manual processes to assist the Board in achieving its objectives for the control and administration of native land.

The expression of interest called for all potential developers to propose an information technology solution that would meet the Board’s immediate and long term business goals. Datec delivered a proposal in these terms for consideration of the Board but it failed to meet all the board’s requirements and their proposal was rejected.

The successful appointee is a company owned by the 1st defendant but under a holding scheme involving another one of its commercial enterprises; Vanua Development Corporation Limited the 12th defendant. (“VDC”). VDC was incorporated by the 1st defendant. VDC took up 51% of the shares in Pacific Connex Limited. (“PCL”). PCL was awarded the information technology services contract for the 1st defendant. The plaintiff claims the incorporation of VDC was unlawful.

The plaintiff alleges that he is a Fijian and registered in the Registry of Native Land (Vola ni Kawa Bula or VKB) as a member of the Tokatoka Vuniutorea, Mataqali Naibati, Yavusa Naibati in the district of Tavuki in the province of Kadavu.

The Claim

The inspiration for the Statement of Claim is clear. Datec was not awarded the tender to provide the technology solution for the 1st defendant and so through its principle shareholder (the plaintiff) it seeks to interfere with the decision to award the contract to PCL.

The plaintiff has done so upon the basis that he alleges the 1st defendant, a creature of statute and consequently some of the trustees (2nd to 15th defendants) acted unlawfully when they formed the 12th defendant holding company VDC. Clearly if that is correct then the IT tender process would be upset as the major shareholder in Pacific Connex Limited would be an illegal entity. The vehicle used by the plaintiff to achieve this end in the subject statement of claim is both blunt and poorly pleaded.

It is blunt because it not only joins the Native Land Trust Board first defendant into the proceedings but a selection of that board’s trustees in their personnel capacity. It is poorly pleaded because apart from describing the factual history of the matter in a series of allegations in the first fifteen paragraphs. It barely engages the defendants in any meaningful way. There is some but not much connection between the plaintiff, the defendants, the facts and a proposed cause of action in these pleadings.

I must however assume that the contents of the pleadings can be proved at trial. I can therefore infer from the allegations that the plaintiff; when his pleadings are refined; will simply ask the court to determine whether or not the first defendant properly interpreted its powers under Section 3(6) of the Native Land Trust Act to form the 12th defendant VDC and proceed to tender for its own IT solution through Pacific Connex Limited.

Decision

These proceedings demonstrate a complete misunderstanding of the purpose of pleadings. The current applications to strike out the claim demonstrate a complete misunderstanding of the purpose of that summary procedure.

Pleadings

A system of pleadings is the primary if not the basic method for stating and resolving disputes, questions of fact or of mixed law and fact between parties to any claim.

The first object of pleadings is to define and clarify with precision the issues and questions which are in dispute between the parties and fall for determination by the court. Fair and proper notice of the case an opponent is required to meet must be properly stated in the pleadings so that opposing parties can bring evidence on the issues disclosed ESSO Petroleum Company Limited v Southport Corporation [1956] AC 218 at 238).

A further object of pleadings is to inform the court about the precise matters in issue between the parties which the court may determine. Pleadings set the limits of the action. Cases must be decided on the issues on the record and if it is desired to raise other issues they must be placed on the record by amendment (Blay v Pollard and Morris [1931] KB 628 at 364). It is not for the judge to speculate about the nature for each parties case. The judge and the parties are circumscribed by the pleadings on the record.

The parties are adversaries. It is left to each of them to formulate their case in their own way. It is not part of the duty or function of the court to enter upon a general enquiry into a case before it other than to adjudicate it upon the specific matters in dispute which the parties themselves have raised.

All these pleadings suggest is that the plaintiff challenges the lawfulness of the 1st defendant’s decision to form a company.

Strike Out Applications

The practice in Fiji of preemptively applying to strike out a claim is wrong, and must cease. Counsels ability to overlook the purpose of this summary procedure is astounding. The expense to the administration of justice, let alone clients, is a shameful waste of resources.

The Court of Appeal in its decision of National NBF Finance v Buli (Civil Appeal No. ABU0057 of 1998) determined the principles for strike out. Apart from truly exceptional cases the remedy should not be granted. The approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be provided at trial. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not do so upon a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of such a factual contention.

In the Attorney-General v Halka [1972] 18 FLR 210 at 215 my brother Justice Pathik observed and I agree that the summary procedure to strike out a claim should not be exercised where legal questions of importance and difficulty are raised.

The rule of law requires the existence of courts for the determination of disputes and that litigants have the right to use the court for that purpose. The courts will be alert to their processes being used in a way that results in an oppression or injustice that would bring the administration of justice into disrepute. However, the court cannot and must not deny proper access to justice by the glib use of a summary procedure to pre-emptorily strike out an action no matter how weak or poorly pleaded the Statement of Claim supporting the case is.

Locus Standi

The defendants challenge the plaintiffs standing to bring these proceedings. In reliance on classic principle they say his pleadings demonstrate no adverse effect upon him that might provide a nexus to his cause of action.

I reject that argument.

I must accept that the plaintiff is a Fijian registered in the Registry of Native Land as a member of the Tokatoka Vuniutorea Mataqali Naibti Yavusa Naibati in the district of Tavuki in the province of Kadavu. He is part of this native land owning group.

For the purposes of this application I must also accept that the first defendant is a body corporate established pursuant to Section 3 of the Native Land Trust Act 1940 and is vested with the powers of administration and control of all native land in Fiji for the benefit of Fijian owners.

The plaintiff is alleging that his trustees the defendants acted unlawfully in constructing this 12th defendant investment vehicle to pursue its own IT services. The affect he alleges is upon him and his children who own a 100% of the Holding Company that in turn owns Datec the unsuccessful tenderer to that very contract. The adverse effect is obvious. The plaintiff’s company Datec lost the tender he says because the first defendant acted unlawfully.

I accordingly find that the plaintiff has standing to bring these proceedings.

No Reasonable Cause of Action

It is only in clear and obvious cases that the courts can and will use the summary process for striking out a claim. Where there are important issues of legal interpretation raised by pleadings it is imperative that there is a hearing and that the matter be properly resolved after a full consideration of all the issues.

The very fact that the defendants in their affidavits and their counsel in his submissions seek to argue their version of an interpretation of the pivotal Section 3(6) of the Native Land Trust Act underscores that there is a serious issue to be tried. The course adopted by this plaintiff may be unpalatable to all of the defendants but it is not unreasonable, frivolous or vexatious. The plaintiff is entitled to bring the matter to the attention of the court and seek vindication by a challenge to the supposed unlawful conduct of the 1st defendant.

It is not for the court in deciding whether there is a reasonable cause of action to go into the details of the issues that are raised by the parties. This summary jurisdiction of the court was never intended to be exercised by a detailed examination of the facts of the case at a mini hearing to see whether the plaintiff really has a good cause of action merely a sufficient one. This is not the time for an assessment of the strengths of either case. That task is reserved for trial. The simple fact that these parties engaged in argument by opinion over statutory interpretation must bring into existence a mere cause of action raising some questions fit to be decided by a judge. (Wall v Lawson [1915] 31 TLR 418, Wenlock v Malone [1965] 1 WLR 1238 [1965] 2 ALL ER 87, CA).

Abuse of Process

Counsel for the 2nd to 15th defendants submitted, without the benefit of any authority, that it is an abuse of process to file proceedings against trustees of a statutory body rather than seek judicial review of the decision they have made. I cannot accept this submission. If any trustee acts unlawfully or outside of the strict terms and powers of his trust then he may be held personally liable.

Courts will be vigilant to guard against the vexatious litigant that presses his claim against unnecessary defendants, but that is not the case here.

If the court were to find that the decision to form the 12th defendant holding company was unlawful then it may well follow that the trustees participating in that decision acted in excess of their powers and opened themselves up to personal liability for that action.

It was further submitted that the only proper way this issue could be resolved was by a judicial review and that to proceed by writ and summons was wrong. However, the plaintiff is not seeking a prerogative remedy. He is in essence seeking a declaration as a beneficiary that his trustees have acted in excess of their powers. He is perfectly entitled to do so and I reject the motion that this is an abuse of the court’s process.

Conclusion

This application lacked merit. The motions of the 1st to 15th defendants are dismissed. The plaintiff is entitled to costs. These will be reserved and follow the cause.

The plaintiff needs to amend and refine his pleadings. The plaintiff will file a more particularized statement of claim specifying any alleged adverse affect on him. He will re-plead his cause of action now grossly pleaded in paragraph 16. This amendment will be filed and served by Monday the 1st of August 2005.

The defendants will have until Monday the 29th of August to reply. The parties will exchange affidavits of documents on Monday the 5th of September 2005. The parties will complete inspection of documents by Monday the 12th of September 2005. Any further interlocutory applications will be filed on or before the 19th of September 2005.

The parties will finalize their own pre-trial conference and file the appropriate memorandum by the 26th of September 2005. The case is thereafter adjourned to set a fixture before me in chambers at 9.00am on Friday the 30th of September 2005. In the interim leave is reserved for any party to come before me on 7 days notice for further directions as required.

Gerard Winter
JUDGE

At Suva
19th July, 2005