Subramani v Native Land Trust Board [2005] FJHC 506; HBF0014.2004L (2 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBF0014 OF 2004L

BETWEEN:

SUBRAMANI
Petitioner

AND:

NATIVE LAND TRUST BOARD
Respondent

Counsel: Mr. V. Mishra with Mr. T. Vakalalabure for the petitioner
Mr. K. Qoro for the respondent

Date of Hearing: 2 March 2005
Date of Judgment: 2 September 2005

RULING

The Native Land Trust Board by a Summons dated 29 April 2004 seeks to strike out pursuant to Order 18 Rule 18 and the inherent jurisdiction of the court. A petition filed by Subramani on the 13^th April 2004 to wind up the Native Land Trust Board.

The petition is based upon the Native Land Trust Board’s indebtedness to Subramani pursuant to an order of the court of the 8^th October 2003 and the lapsing of a subsequent stay of that order due to the alleged failure of the Native Land Trust Board to comply with the Rules of the Fiji Court of Appeal in a timely manner.

The Native Land Trust Board is established pursuant to the Native Land Trust Act [Cap. 134]. Section 3 of that Act details the constitution of the Board and subsection 6 of section 3 states:

“The Board shall be a body corporate with perpetual succession and a common seal and may, in such name, sue and be sued, borrow money and enter into contracts, and may acquire, purchase, take, hold and enjoy real and personal property of every description and may convey, assign, surrender and yield up, charge, mortgage, transfer or otherwise dispose of or deal with or in real or personal property vested in the Board on such terms as the Board thinks fit.

The petitioner relies upon this section as a basis for submitting that the Native Land Trust Board is a body corporate able to be wound up pursuant to the provisions of the Companies Act [Cap. 247].

The Companies Act in Section 2 defines a company as meaning:

“A company formed and registered under this Act or an existing company.”

Section 222 of the Companies Act deals with the provisions as to applications for winding up. It is clear that where that section refers to “a company” it is referring to “a company” as defined in section 2 of the Act.

Whilst it is apparent that the Native Land Trust Board was established prior to the Companies Act that in itself is not sufficient for the Native Land Trust Board to be deemed a company under the provisions of the Companies Act.

There is no provision, perhaps not surprisingly, within the Native Land Trust Act for the winding up of the Native Land Trust Board.

Section 3 of the Native Land Trust Act details not only the constitution of the Board but the method of operation of that Board. Clearly it has a constitution and method of operation outside the scope of the Companies Act. It is a creature of statute. It does not have a shareholding and perhaps most importantly, it is not an existing company within section 2 as that term is defined as meaning “a company formed and registered under any of the Repealed Acts.” The Native Land Trust Act is not a “repealed Act”.

Whilst it is only in clear and obvious cases that the court should exercise the power to strike out the pleadings or proceedings under Order 18 Rule 18, it is difficult to conceive a more clear and obvious case than this.

The Orders of the Court will be:

1. The petition filed on the 13^th April 2004 is struck out.

2. The petitioner is to pay the Native Land Trust Board’s cost assessed on a solicitor client indemnity basis.
   

John Connors

JUDGE

At Lautoka
2 September 2005