Gavidi v Native Land Trust Board - Striking Out [2008] FJHC 23; HBC222.2007 (29 February 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 222 of 2007

BETWEEN:

RATU OSEA GAVIDI
Plaintiff

AND:

NATIVE LAND TRUST BOARD
First Defendant

NATADOLA LAND HOLDINGS LIMITED
Second Defendant

FIJI NATIONAL PROVIDENT FUND
Third Defendant

Ms. T. Draunidalo for Plaintiff
Mr N.Tuifagalele for First Defendant
Mr I. Fa for Second and Third Defendants

Date of Hearing: 8th February 2008
Date of Ruling : 29th February 2008

DECISION OF STRIKING OUT

The first defendant is seeking that plaintiff’s action against it be struck out on four grounds namely:

(a) that the plaintiff has no locus standi
(b) that the statement of claim discloses no reasonable cause of action
(c) that it is an abuse of process.

It relies on the affidavit of Mesake Mara sworn on 21st December 2001 in support of its application. The plaintiff has responded to the above affidavit by affidavit dated 22nd January 2008.

Locus Standi:

The first defendant says that this is a representative action and as such the provisions of Order 15 Rule 14 apply. Order 15 Rule 14 provides:

"where numerous persons have the same interest in any proceedings, not being proceedings as are mentioned in Rule 15, the proceedings may be begun, and, unless the court otherwise orders, continued by or against any one or more of them as representing all or as representing all except one or more of them."

What is required is a commonality of interest. As Odgers in Principles of Pleading and Practice states that all persons who have a common right which is invaded by a common enemy are entitled to join in attacking that common enemy in respect of that common right, although they may have different rights inter se. The essential requirement of this order is that the persons who are to be represented have the same interests as the person or persons representing them in the same cause or matter: Duke of Bedford v. Ellis [1900] UKLawRpAC 56; (1901) A.C 1; Bruce v.s Good [1916] NZGazLawRp 169; (1917) NZLR 514.

The persons to be represented in this action are members of mataqali who have beneficial interest in various lands subject matter of this action. The plaintiff does not claim to have any interest in the land itself. He is not a member of any of the mataqalis. He claims to have traditional ties allegedly "grounded in mutual respect and care for each others well being" . The substance of the case has nothing to do with traditional ties between people of Cuvu and the vanua of Nahoqo. The plaintiff has no recognizable legal interest in common with the beneficiaries and therefore falls foul of the above rule.

Ms Draunidalo suggested that in the event the court held the plaintiff not being able to respect the beneficiaries then it should substitute one of the landowners in his place. While this court has powers under Order 15 Rule 6 to add any one of the represented persons as party, I cannot do that unless that person consents to be added as a plaintiff in writing. An oral application from the bar table will not suffice in view of the stringent words of Order 15 Rule 6(4).

Ms Draunidalo submitted on authority of Narawa vs. Native Land Trust Board – 2002 FJLA 9; ABU 12 of 1999 that the plaintiff has locus. Narawa stated that native customary rights to land may be recognized by common law and enforced in courts and in the case of mataqali by way of representative action or by all the members of the mataqali as unincorporated association. It also held that it was not necessary that a person suing in representative capacity to get consent of all those whom he purports to represent. In the case of Narawa the plaintiff was a member of mataqali, a further a paramount chief and a former Member of Parliament. He had a recognizable common interest with those whom he represented that is interest in the land.

I come to the conclusion that Ratu Osea Gavidi does not share common interest with those whom he seeks to represent and therefore he has no locus standi to bring the claim.

No reasonable cause of action:

It is only in very clearest case that an action in struck out for this reason. While the statement of claim as drafted is confusing, with major amendments the defects can be cured. Gathering from what Ms Draunidalo told from the bar table the plaintiffs allegedly are saying that there is breach of statutory duties towards the plaintiffs by the first defendant. Breach of statutory duties can be a ground of action. I do not consider this ground succeeds.

Insufficient undertakings as to damages:

This is a good ground for refusing to grant an interlocutory injunction but is definitely not a reason to strike the entire action out.

Abuse of process:

The reason advanced for abuse of process is that the plaintiff has instituted this action irregularly and improperly. The first defendant in its affidavit says the plaintiff has filed three interlocutory proceedings in five months and that amounts to abuse. Courts will rarely conclude that there is an abuse of process unless it concludes that the later proceedings amount to "unjust harassment" Johnson v Gore Wood and Company – 2001 ALL ER 481 at 499.

There is insufficient material in the affidavit of the first defendant for me to conclude that there has been an unjust harassment of the first defendant. So this ground fails.

Conclusion:

The first defendant therefore succeeds on the ground that the plaintiff has no locus standi to bring this action. Accordingly proceedings against the first defendant are struck out. And since the plaintiff has no locus standi it ipso facto means that he cannot proceeds against the other defendants as well on the same basis. It is only therefore proper that I strike out the entire action against all the defendants.

I allow the first defendant costs in the sum of $800.00 to be paid in fourteen (14) days.

Jiten Singh
JUDGE

At Suva
29th February, 2008