Fiji Hardwood Corporation Ltd v Tiva [2008] FJHC 374; HBC 167.08S (21 August 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 167/08S

BETWEEN:

FIJI HARDWOOD CORPORATION LIMITED
(PLAINTIFF)

AND:

ATUNAISA TIVA
(1^ST DEFENDANT)

MEMBERS OF MATAQALI NAUA
(2^ND DEFENDANT)

NATIVE LAND TRUST BOARD
(1^ST INTERESTED PARTY)

THE DIRECTOR OF LANDS
(2^ND INTERESTED PARTY)

THE CONSERVATOR OF FORESTS
(3^RD INTERESTED PARTY)

THE ATTORNEY-GENERAL
(4^TH INTERESTED PARTY)

Counsel for the Plaintiff: Mr S Valenitabua: Valenitabua Esq.
Counsel for the 1^st & 2^nd Defendants: Mr I Fa & Prasad: Fa & Co.
Counsel for the 1^st Interested Party: No Appearance
Counsel for the 2^nd, 3^rd & 4^th Interested Parties: Mr C Tuberi,: AG's Chambers

Date of Decision: 21 August, 2008
Time of Decision: 11.15a.m.

EXTEMPORE DECISION

The issue in this case is clear.

By Native Land Trust (Leases and Licences) (Amendment) Regulations dated 1 November, 2007 the Interim Minister for Fijian Affairs extended the lifes of all leases under Regulation 20 of the Fourth Schedule, to 99 years. This amendment is retrospective to include all leases prior 1 January 2005. This means, in this case the plaintiff argues, that the Korovono lease held by the Director of Lands and assigned to the plaintiff and the subject of FCA decision of 15/2004, which held, inter alia that there can be no 99 year lease for development purposes including forestry, under the then existing Regulation 20, must be a valid lease for a period of 99 years. In my view, the first and critical issue which is raised by the defendant, is the legality of the Regulations made by the interim Minister, in the light of the pending decision of the High Court in the Qarase case. The case will in turn determine the legality or otherwise of any action of the Interim Government and/or its Ministers, including the making of regulations. This case, like others, should properly await the outcome of the case. In the circumstances, I am confident in belief that for the time being, the law remains as pronounced by the Court of Appeal in its decision of February 2005.

In any case, I am in agreement with Counsel for the defendants, that the Regulations amendments can only apply to a lease that exists or should have been existing. The fact of the matter is in this case, the 1974 PAN had expired. There is no longer any lease that exists and which defects can be cured by the Regulations amendments. The new Regulations cannot resurrect a lease that has already run its course. The land has since 2005, returned to the landowners.

In the end, the Court is satisfied that there are no serious issues that are raised and therefore the application is without merit.

The plaintiff's application is dismissed.

Costs of $500 to the defendants.

F Jitoko
JUDGE

At Suva
Thursday 21 August 2008