Sami v Veitogavi [2008] FJHC 391; HBC066.2007L (25 June 2008)

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SAKIASI VEITOGAVI and/or THE MOMI TRUST
And/or THE YAVUSA LEWEISAVU
First Defendant

Appearances: Counsel for Plaintiff:Mr.D.Gordon Esq
Counsel for Second, Forth & Fifth: J.Lewaravu
Counsel for the Third Defendant: Ms. K.Kabu

[1] The Plaintiffs are the Trustee and the Manager of Momi Indian Primary School in Momi Nadi, [as the Plaintiffs]. The school was built on the Crown Land some 82 years ago. In or about 2002 the said "land" was transferred to the Native Land Trust Board [the Board] to hold for the benefit of the Mataqali in Momi area.

[2] The Plaintiffs applied to the Board for a new lease and paid the required application fee. The Board issued a letter to the Plaintiffs offering a lease for 50 years and required payment of $13,593.51, and to execute an agreement referred as "subject to agreement", within 6 weeks. The Plaintiff failed to pay all the monies during the offer period, the offer lapsed. Thereafter, the parties entered into negotiations to pay the outstanding balance to the Board. The Board accepted the balance of monies, appropriated part of it, distributed the balance to the land owners and issued a second letter in which the Board stated that the "lease has been granted to you" however, the Board refuses to deliver it to the Plaintiffs.

[3] In or about December 2006, a group of men accompanied with Sakiasi Vetogavi entered the school building, claiming that they were the landowners and demanded the closure of the school, and threatened the occupants with personal violence. The School Committee immediately closed the school.

[4] The Plaintiffs sought assistance from the police but to no avail. The Plaintiffs requested the Ministry of Education for help, they paid the goodwill in the sum of $10,000.00 to the Board, and were aware that the lease had been granted; despite that, they also decided that the school should be closed. The Plaintiffs sought police assistance, but they failed to prevent violence in the school.

[5] The issue for determination is whether, there is an offer, acceptance, or whether the offer lapsed, if so, is there a waiver, estoppel, affirmation of the acceptance, part performance, or conduct conducive leading to reviving the acceptance, after the Board accepted and distributed all the monies paid by the Plaintiffs. The Board issued a second letter in which it confirmed that the Board has granted a lease to the Plaintiffs.

[6] The Plaintiffs claim that the Ministry of Education unlawfully closed the school. Further, the Plaintiffs claim that at the time when the violence occurred at the school, the Police failed to provide protection to the students and teachers, hence the school was closed. The Plaintiffs argue that instead of preventing violence in the school, they wrongfully closed the school.

[7] Before I examine the substantive case, I have to deal with the strike out application filed on behalf of the second, fourth and fifth Defendants, which apparently was filed before the pre-trial conference, but was considered irrelevant; therefore, it was not included in the issues for trial.

At the hearing, the Counsel for the second, fourth and fifth Defendants maintained that it was filed appropriately, but could not explain why it was not included in the issues for trial. Since the submissions were filed after the Pre-trial conference, I considered it was procedurally inappropriate to deal with the case and on the basis of Order 34, I declined to grant cost to the second, fourth and fifth Defendants.

[8] I consider that if matters are not included in issues for trial, they ought not to be tried, as it causes prejudice to the other party who may rely upon those matters for trial. I also note that there was no leave sought or granted by the Court for either to strike out the application, or the Counsel obtained consent of the other parties to proceed with the strike out application.

[9] The first Defendant is Sakiasi Vetogavi. The Momi Trust and the Yavusa Leweisavu landowners came into the school property accompanied with several others threatening to evict the school occupants unless the school was closed. The NLTB had received all the rent, fees and goodwill of $10,000.00 on account of the landowners, but the landowners claimed they were not paid, and demanded school closure. The Plaintiffs now seek an order for the delivery of the lease.

[10] The second Defendant is the Ministry of Education, since they paid the deposit for the goodwill, they have the responsibility under Section 17 of the Education Cap 262 to ensure that the school is maintained. The Plaintiffs claim that the second Defendant, after paying goodwill in the sum of $10,000.00 issued a notice to close simply believing that there was a conflict between the Board, the landowners and the Plaintiffs, when the Ministry of Education knew that the Board has granted the lease to the Plaintiffs to operate the school.

[11] The Plaintiffs claim that the Board is refusing to deliver the memorandum of lease after admitting that it had issued the lease in favour of the Plaintiffs is in breach.

[12] The fourth Defendant is the Commissioner of Police, who was required to provide safety and protection to the students and the teachers and other occupants of the land generally, when the owners of the land unlawfully threatened to assault and evict the occupants, who had legitimate right to occupancy of the land. The Plaintiffs failed to attend at the relevant times when the landowners threatened to evict the occupants of the school.

[13] The fifth Defendant is the Attorney General of Fiji, is the form in which the action against the Crown is instituted.

[14] The Momi Indian School was built over 82 years ago in the Crown Land but on 30 November 2002 it was gazetted as Native Land under the Native Land Act 2002. The school is located in the district of Nadi, Momi, in the province of Nadroga. The school was established by the local Indian community who have been managing and operating the school. The school trustee and the manager are responsible for payment of rent to the Native Land Trust Board.

[15] After the expiry of the former lease in or about 1984, the Plaintiffs continued paying rent to the Department of Lands but did not seek renewal of a new lease from the Lands Department.

[16] In or about June 2002 the said land was gazetted as reserve land for Yavusa Leweisavu Mataqali.

[17] In 2004, the Plaintiffs made an application to the Board for the grant of a new lease for the school. There were several discussions between the Board and the Plaintiffs concerning payment of rent expenses and goodwill of $10,000.00 before a lease could be granted.

[19] In order to establish whether there is a valid lease between the Plaintiffs and the Board the following matters have to be considered.

[20] The Plaintiffs filed affidavits of Vijay Prakash, sworn on 27 February 2007, 29 March 2007, and 22 August 2007. Further affidavits of Ram Karan sworn on 8 May 2007 and 22 August 2007 and the Statutory Declaration sworn on 30 August 2006 by Solomoni Nata, Manager, Native Land Trust Board, Lautoka Office, were also filed in Court. I have considered all the materials contained in those documents.

[21] The Plaintiffs’ Counsel relies on the decision made in Daydream Island Ltd v Vuki [2007] FJHC 14: HBC284, 2005[18 May 2007] to support his claim for the grant of a lease of the native land on the basis that the Board is the statutory trustee acting on behalf of the landowners, has the statutory power to grant leases to Plaintiffs. He further claims that the Native Land, pursuant to the Native Land Act, is unalienable, without the approval and consent of the Board. He claims that the Board gave its consent to grant the lease subject to the Plaintiffs complying with certain conditions contained in the letter dated 14 October 2004.

[22] The Plaintiffs claim that during the offer period they made only part payment of the total amount, thereafter, the offer lapsed. The offer was made ‘subject to contract’, but both Counsels agreed that there was no other contract to be executed by the parties, therefore the caveat ‘subject to contract’ was meaningless and did not apply.

[23] The Plaintiffs further submit that on 19 July 2004, they paid the application fee in the sum of $56.25; and thereafter on 5 November 2005 paid $2,537.88. The Ministry of Education paid on account, goodwill in the sum of $10,000.00, total being $14637.88. The Board in its offer letter only required payment of $13,593.51.The Plaintiffs rely on the second letter wherein the Board admits that it has granted the lease to the Plaintiffs.

[24] The Counsels for the Plaintiffs submitted that after the lapse of the offer, the Board accepted monies on account of the initial offer and waived the 6 weeks time during which the Plaintiffs were required to pay the total sum as required in the offer letter. The Counsel for the Plaintiffs argued that there is a waiver, estoppel and affirmation of agreement when the Board member and the Plaintiffs attended a meeting at Sigatoka to discuss the grant of lease to the Plaintiffs. The Plaintiffs further submitted that there is a existing lease which is binding on the parties, but the Board refuses to deliver up the document.

[25] The Board filed an affidavit of Netani Kiso an employee of the Native Land Trust Board. He swore two affidavits, the first on 11 April 2007, and the second on 12 July 2007. His evidence is based on information provided to him by other officers.

[26] I have considered Netani Kiso’s evidence and noted that the matters he deposed are information provided to him by others, clearly inadmissible. However, I have given due consideration as to what weight should be afforded to such evidence. He did not attend court for cross examination on his evidence.

[27] He claims that since the offer was not accepted within the 6 weeks period, it lapsed. He further claims that the land is not de-reserved, but fails to submit any evidence to show that the Board fails to re-reserve, when it [the Board] was actively engaged in leasing it to the Plaintiffs.

[28] I have considered the whole of his two affidavits and have given due consideration in arriving at my decision, that the Board is required to de-reserve the land before it offers for lease of the land to prospective tenants.

[29] Ms Kabu, Counsel for the Board submitted that the meaning of the word ‘subject to contract’ is not intended to apply its practical meaning applied in conveyancing matters where the parties intend to execute a further contract to conclude a transaction. She further agreed that there was no other contract for the parties to execute in this matter, therefore the term ‘subject to contract’ is not applicable.

[30] The Defence Counsel further submitted that the Board was unable to grant the lease, after receiving all the monies due under the offer letter, because there was uncertainty and violence in the school area. Clearly this could not be a reason for failing to issue the lease to the Plaintiffs when they had paid the goodwill, rent and the application and registration fee to the Board.

[31] The Counsel for the Board admitted that the Plaintiffs had complied with all the requirements and further she read the letter dated 29 August 2006, and also letter dated 30 November 2006, addressed to Naco Chambers, in which the Board confirmed that it had issued a lease in favour of the Plaintiffs.

[32] Solomoni Nata a former Manager, NLTB, Lautoka, deposed a Statutory Declaration sworn on 30 August 2004. He is now deceased. In his declaration he deposed that he was involved in seeking consent from the landowners as an employee of the Native Land Trust Board. Netani Kiso, in his evidence claims that it is the Plaintiffs’ duty to provide the consent of the landowners. This evidence is directly in conflicts with Solomoni Nata’s evidence.

[33] Solomoni Nata in his Statutory Declaration sworn on 30 August 2006 states as follows:-

"I was negotiating the renewal of 12 ALTA expired lease in Momi owned by Yavusa Leweisava whom they have decided to take over and farm it themselves. This was in late 2004. The negotiations and consultations also cover the Momi Indian Primary School, where the consent was obtained from the YAVUSA LEWEISAVU. During this time Taniela Cumu was the Turaga-ni-koro of Momi village.

The negotiations and consultations also cover Momi Indian Primary School where the consent was obtained from YAVUSA LEWEISAVU in late 2004."

[34] Netani Kiso’s evidence is that the Plaintiff were required to obtain consent from the individual landowners. Solomoni Nata’s evidence contradicts Netani Kiso’s evidence. Solomoni Nata deposed of matters which he claimed were known to him personally, and actions which he took on behalf of the Board in seeking approval from the landowners to grant a lease to the Plaintiffs which he submitted to the Board.

[35] I accept Solomoni Nata’s evidence for the reason that he deposed of matters which related to the actions he took while he was employed by the Native Land Trust Board and that he deposed of matters which were within his personal knowledge.

[36] The third Defendant filed affidavit evidence of Emi Rabukawaqa sworn on 29 March 2007. I have examined all the affidavit evidence, including submissions made by the Plaintiffs and the strike out application filed by second, fourth and fifth Defendants.

[37] In his submission, Counsel for the second and fourth Defendants submitted that the Ministry of Education closed the school because there was falling enrolment at the school. He contradictory, since the Ministry paid the sum of $10,000.00 to the Board in 2006, when it was fully aware of the falling class numbers, it did not take any action at that time.

[38] In the circumstances, I consider that the Ministry failed to give adequate consideration before it issued notice to close the school.

[39] The letter is a result of various discussions between the parties prior to 14 October, 2004. An analysis of this document reveals as follows:-

[40] The letter dated 14 October, 2004, issued by the Board to the Plaintiffs is in the following terms:

"On behalf of the Board I am pleased to offer you a lease/tenancy of the said land for EDUCATIONAL purposes for a term of 50 years from 1 January 2005. The rent will be in the first instance will be $300.00 per anum, assessable in accordance $10,000.0 is also payable."

[41] The above letter requires the Plaintiffs to pay $13,593.51 within 6 weeks, and to execute the contract which is referred to as ‘subject to a contract’. There is no evidence that there was any contract either submitted or executed by the parties, except an application form which the Plaintiffs completed within the 6 weeks from the date of the offer letter.

[42] In the absence of another contract, I accept that the Board’s interpretation of the meaning of "subject to contract" refers to completing the application for the grant of a lease, which the Plaintiffs executed within the 6 weeks. Since the Plaintiffs failed to comply with the offer, it lapsed 6 weeks after the date of the letter.

[43] The evidence is that the Plaintiffs executed and delivered the ‘application form’ to the Board but only made part payment within the 6 weeks, hence the offer lapsed. The principle relating to an offer and acceptance was discussed in Ramsgate v Victoria Hotel Co Montefiore [1886] L R 1 Exch109. The facts in this case was that an offer was made to buy shares in June but the offeree did not make any acceptance until November was held to be excessively long time, and the offeree was not liable to complete the purchase. Likewise the High Court of Australia in Ballas v Theophilos [1957] HCA 90; 1957 98 CLR 193, discussed the meaning and application of offer and acceptance, which was applied in Graham Evans Pty Ltd v Stencraft [1999] FCA 1670 (30 November 1999), where the Court said:

"I am satisfied that on 12 May 1994 the parties entered into an agreement upon terms contained in the offer of 9 May, memorandum of 10 May and the discussions as to the specific matters which occurred in the course of the telephone conversation on 12 May".

[44] Also more recently the Court in Aon Risk Services Australia Ltd v Lumley General Insurance Ltd [2005] FCA 133 (25 February 2005), referred to the making of an offer and the mode of its acceptance. I have further considered the decision in Tuisavu v Fiji Institute of Technology Council [2002] FJCA 64, (16 August 2002), when considering this matter.

[45] The revival of the lapsed offer depends upon the subsequent intention of the parties. Subsequent conduct of the parties disclose a clear intention that the Board had waived time to comply with its requirements as provided in its letter offering the lease of the land to the Plaintiffs.

[46] On 28 November 2004, the offer lapsed. After that date I find that the parties were engaged in completing the transaction, when the Board received monies on account and appropriated the same, clearly by its conduct, it gave the impression that the Board will or has granted the lease to the Plaintiffs when the following transactions have been put in evidence,

(a) November 2004, the Board received	$ 2,537.88
(b) On 25 January 2006 the Board received	$ 1,500.00
(c) On 9 August 2006 the Board received	$10,000.00
(d) On 12 April, 2006 the Board received rent	$ 300.00
(e) On 21 August 2006, the Board received rent	$ 300.00

The Board received total payment from the Plaintiffs $14,637.88, whereas the Board requested payment of $13,593.51 in the letter offering the lease to the Plaintiffs.

[47] The Board claims that it accepted the Plaintiffs’ offer, which is again erroneous, since the original offer to grant a lease was made by the Board to the Plaintiffs. It was the Plaintiffs who are required to accept the offer, only after complying with the terms of the offer, could result in the acceptance of the Board’s offer. The Plaintiffs maintained that they complied with all the terms of the offer after the Board waived the compliance within 6 weeks.

[48] I accept the contents of the letter which is potentially couched in terms as an offer made to the Plaintiffs, because it says so, secondly, the wording of the letter clearly stipulates the requirements to be complied with in order to complete its acceptance. The question for consideration is; did the Plaintiff unconditionally accept the offer within the 6 weeks period?

[49] I find no evidence that the Plaintiffs, even though made part payment, on 5 November 2004, in the sum of $2537.88, and executed the document referred as ‘subject to contract’, but failed to pay the whole amount within the 6 weeks, hence the offer lapsed on 28 November 2004.

[50] The Counsel for the Board and the Plaintiffs agreed that the meaning of the words, "subject to contract", does not apply in this case. They both submitted that it means the Plaintiffs have to sign the memorandum of lease after it has been issued by the Board.

[51] The meaning of subject to contract is explained at page 172 in Cheshire & Fifoot’s Law of Contract 5th Edition, it states that "Common practice by legal practitioners is to ensure that no legal obligations are created until exchange of formal contracts". I find that the Board’s interpretation of an application to mean a formal contract is erroneous, if the Board is referring to the formal application as a contract, then the plaintiff executed the said application and complied with the meaning of ‘subject to contract’.

[52] I find that the letter dated 14 October 2004, referring as "subject to contract" means that the Plaintiffs were required to sign the Memorandum of lease after it had been issued. Both Counsels agreed that this is not the true application of ‘subject to contract’. As is generally applied in conveyancing cases as referred to in Masters v Cameron [1954] HCA 72, CLR 353, and also see the expression of Lord Blackburn in Rossiter v Miller [1877] UKLawRpCh 168; (1878) 3 AC 1124, where he stated :

"that the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not by itself show that they continue merely in negotiations".

[53] The Counsels for the Board and the Plaintiff agreed that the words ‘subject to contract’ does not apply in this case. I accept that in the circumstances, the term is a meaningless phrase, as described by the Court in Nicolene Ltd v Simmonds [1953]1 Q B 543, where the Court disregarded the clause and determined the dispute without referring to the ‘meaningless clause’ and further applied in E J R Lovelock v Exportless [1968]1 Lloyd’s Rep 163.

[54] I find that the meaning of ‘subject to contract’ is not applicable in this case, as agreed between the Counsels for the Plaintiffs and the Board. Therefore, I find that there was no other contract which required to be executed by the parties to obtain the lease from the Board.

[55] The Plaintiffs claim that the Board by its conduct affirmed the existence of the contract after having received all the monies which was to be paid under the initial offer dated 14 October, 2004. Did the Board affirm the existence of the contract to issue a lease?

[56] Affirmation means where the innocent party, elects to treat the contract as continuing, he is usually said to have "affirmed" the contract. Affirmation may be expressed or implied, it will be implied, if with knowledge of the breach, he does some act from which it may be inferred that he recognises the continued existence of the contract as explained in Mathews v Smallwood [1910] I Ch 777, 786, and also see Suisse Atlantique Societe d’ Armament Marine S. A. v N.V Rotterdamsche Kolen Centrale [1967] 1 A C 361.

[57] Did the Board by its conduct affirm the existence of the contract for lease when the Board member attended a meeting at Sigatoka on 24 August, 2006, to discuss the matters relating to receiving the goodwill payment? The Board admitted receiving the sum of $10,000.00 on 9 August 2005. The Board in its evidence submitted that it applied the goodwill funds partly for its own cost, the balance it paid to the landowners presumably when the landowners gave their consent to lease the land to the Plaintiffs.

[58] I find that after the member of the Board and the Plaintiffs attending the meeting at Sigatoka on 24 August 2006, after the offer had lapsed on 24 August 2006, to discuss the granting of lease is an affirmation of the agreement for the grant of lease to the Plaintiffs, as explained in Pust v Dowie [1865] EngR 212; (1863) 5 B & S 33, also see Mathews v Smallwood (1910)1 Ch 777, 786.

[59] The Plaintiffs further claim that the doctrine of estoppel is applicable on the basis that the Board accepted monies on account after the offer had lapsed, led the Plaintiffs to believe that the Board will grant the lease, despite the fact that the receipts for payment to the Board were issued subject to approval of the Board.

[60] Waiver means where one party voluntarily accedes to a request by the other that he should not insist on the precise mode of performance fixed by the contract, that the Court will hold that he has waived his rights to insist that he perform the contract according to its original tenor – see Woodhouse A.C.Israel Cocoa Ltd S.A v Nigerian Produce Marketing Co [1972] AC 741.

[61] I find that the Board member and the Plaintiffs attended a meeting at Sigatoka, to discuss the granting of the lease. I find that by attending a meeting with the Plaintiffs to discuss the granting of the lease, the Board waived the time requirements for the acceptance. The Board, by its subsequent conduct waived the 6 weeks time to complete the agreement and affirmed its acceptance outside the 6 weeks time to complete a legally binding agreement with the Plaintiffs.

[62] The Plaintiff argued that the doctrine of part performance is applicable in the instant case. The development of the doctrine of part performance by the extension of common law was to regularise situations created by acts of parties outside the realm of the contract entered into by the parties. In Maddison v Alderson [1883] 8 AC 467 at p 475, the court stated the formula in the following terms:

"In a suit founded on such part performance, the defendant is really charged upon the equities resulting from the acts done in execution the contract, and not [with the meaning of the statute] upon the contract itself. If such equities were excluded, injustice of a kind which the statute cannot be thought to have had in contemplation would follow".

[63] This doctrine is only applicable to land or interest in land as expressed in the decision of Britain v Rossiter [1879] 11 QB 123, which was later confirmed in Maddison v Alderson [1931] HCA 15; [1931] 45 CLR 282 at p 297.

[64] The application of doctrine arises where one party to the transaction has partly performed the agreement but is refused completion on the basis that the former failed to complete in the required form.

[65] In Tropical Traders Ltd v Goonon [1964] HCA 20; (1964 111 CLR 41 at 52 the High Court of Australia stated, the doctrine of part performance means an acceptance of late payment normally implies abandonment of any right to terminate that particular failure to pay on time. Once the affirmation of a contract has been communicated, after the contract has either been terminated or the offer had lapsed due to non compliance, the affirmation would make the right to terminate for that particular breach will be lost. In Sargent v ASL Developments Ltd [1974] HCA 40; [1974] 131 CLR 634, at 655, where the Court stated that the right is lost whether the right to terminate was provided by law or express provision contained in the contract.

[66] In Turner v Labafox International Ltd [1974] HCA 41; [1974] 131 CLR 660, the Court stated that any confirmation by the party seeking performance entitles the defaulting party to rely on the affirmation of the contract and to accept that the breach has been waived.

[67] The Plaintiffs claim that it relies on the doctrine of part performance since they claim that they partly paid the monies due and payable under the contract. On these bases the Plaintiffs argue that there is a valid and enforceable agreement between the parties for the Board to grant the lease when the Plaintiffs have complied with all the requirements.

[68] I find that by accepting part payment, within the required time, and thereafter accepting the balance of goodwill payments, the Board had waived the 6 weeks time to complete the acceptance.

[69] The Plaintiffs submit that the Board’s conduct after the offer lapsed, in accepting the money due and payable, appropriating it for its own use, disbursing the goodwill sum of $10,000.00 to the landowners, is confirming that the Board has granted the lease.

[70] The intentions of parties vary from different situation depending on the nature of the contract. Often the relevant factor is the conduct of the parties, at other times, letters or acknowledgements or meeting after the contract had lapsed, to discuss if there are revival possibilities, support the contention that there is a contract between the parties. The Privy Council has laid down rules as to how the intention of parties is to be determined, as discussed in Alberfoyle Plantations Ltd v Cheng [1960] AC 115, the Privy Council stated "that subject to normal rule that effect must be given to the parties ‘intention as revealed by the contract".

[71] A traditional approach to examine the conduct of the contracting parties was discussed in Air Great Lakes Pty Ltd v K S Easter Holdings Pty Ltd [1985] 2 NSW LR 309, where His Honours McHugh and Mahoney JJ, held:

"That intention could be ascertained from the conversations etc which took place before and after the document was signed".

[72] However Mahoney J took the discussion to another level when he suggested that

"The objective test would prevail where, to all outward appearances, there was an intention to contract and the party wishing to enforce the agreement had no reason to know that there was intention to contract on the part of the other party"

[73] But in the instant case, the Board had indicated to all outsiders that it was intending to finalise the lease for the school. The Board did not refuse to accept rent, furthermore, after accepting the rent, and goodwill it did not take any steps to refund if it intended not to accept the Plaintiffs as tenants. I find that the conduct of the Board is consistent in accepting monies, indicated that it had granted the lease, and required the Plaintiffs to complete the balance of payment.

[74] The Plaintiffs argue that estoppel is applicable in this case on the basis that the Board after accepting the rent and goodwill of $10,000.00 waived the condition that the compliance is to take within 6 weeks from the date of the offer. The doctrine of estoppel was discussed and explained in Commonwealth v Verwayen [1990] HCA 39 [1990] 170 CLR 394, where the High Court, Mason CJ stated as follows:

"The principles of estoppel by conduct or representation applied in equity, as at common law, though in equity the principle was known as equitable estoppel. And in equity it was also well settled that the representation [or assumption] must be of an existing fact, not of some future fact or mere intention....as Bowen LJ pointed out in Eddington v Fitzmaurice [1885]29 Ch D 459 at p 483, that ‘the state of man’s mind is as much a fact as the state of his digestion’. This limitation upon the principle of estoppel was seemingly founded upon the notion that to hold a person to an assumption which his conduct has caused another to adopt or accept was tantamount to enforcing a voluntary promise in the absence of consideration".

[75] There is evidence that there was a meeting between the Plaintiffs and a Board Member at Sigatoka on 24 August, 2006, to discuss the grant of lease to the Plaintiffs when the Board confirmed that it had received $10,000.00 being the goodwill payment from the Ministry of Education. The Board at the Sigatoka meeting affirmed and acknowledged the acceptance by the Plaintiffs of the offer bade by the Board. The concept of affirmation of an agreement is explained in the judgment of Equitable Life Assurance of the US v Bogie [1905] HCA 55; (1905) 3 CLR 878 and also see Nebon v City Mutual Life Assurance Society Ltd [1935] HCA 33; [1935] 52 CLR 723, where the former case was applied.

[76] On examining the second letter as referred to above, I find that the Board had in fact affirmed its acceptance of the offer made to the Plaintiffs, and had waived the 6 weeks time to complete the payment of monies to grant the lease to the Plaintiffs.

[77] I find that the Board’s conduct after 29 August 2006, [the second letter] affirmed existence of a valid and enforceable contract between the parties. Therefore, the notations "subject to Board’s approval" noted on the receipts issued on 12 April, 2006, and 21 August 2006 have no effect, when the affirmation of the agreement occurred after the receipts were issued on 24 August 2006, as per letter from the Board dated 29 August 2006.

[78] Counsel for the Plaintiffs submitted that the Board failed to comply with section 17 of the Native Lands Act Cap 134, in that it issued the offer letter which required completion in 6 weeks, whereas Section 17 provides that 6 months must be allowed to complete the lease application. Counsel for the Plaintiffs relies on the offer letter which lapsed on 14 November 2004. There is no need to rely on the first offer, since there is a valid and legally binding acceptance by the Board on 29 August 2006, which has merged the first offer.

[79] Since I have found the existence of a valid agreement for the Board to issue a lease to the Plaintiffs, by affirmation, there is no need for me to focus on the 6 months statutory requirement which is provided in the Native Land Act.

[80] The Board issued the second letter dated 29 August 2006 after the Sigatoka meeting. The content of this letter states that the Board has granted a lease to the Plaintiffs. The letter does not require any examination or analysis, since it clearly states, that the Board has granted to the lease, referring to the Momi Indian Primary School.

[81] From the materials the Plaintiffs have placed before the Court, I am unable to find any cause of action which has been established against the Police Department; therefore the claim against the Police Department is dismissed.

[82] I have considered the affidavit evidence of Emi Rabukawaqa sworn on 29 March 2007, and have noted the contents. He suggested that the school was closed after the Ministry of Education considered that it was no longer a viable project, however, only 7 months earlier, the Ministry had paid the sum of $10,000.00 goodwill to the landowners for obtaining the lease for 50 years. His argument is contradictory.

[83] I find Solomoni Nata’s evidence conflicts with the evidence of Netani Kiso. I am inclined to believe the evidence of Solomoni Nata, as his deposition remained unchallengeable. I do not believe Netani Kiso’s version, as he claims that he obtains information from other officers, based on hearsay, which he deposed in his affidavit.

[84] I further find that the Board failed in its duty of care in providing a copy of the lease promptly to the Plaintiffs which may have avoided the confrontation by the landowners in November 2006 leading to the closure of the school.

[85] It should be opened for the Plaintiffs to seek damages against the Board for wilfully or negligently failing to deliver the lease document and as a result; the Plaintiffs have suffered financial loss.

[86] It is also clear that the Board as a Trustee for the landowners has a duty of care to protect its tenants when communicating with the landowners and it has a further duty of care to provide the landowners information when premiums are paid to the Board on their behalf. In this case the Board failed in its duty of care to ensure that it had informed the landowners within a reasonable time after receiving the premium, in order to avoid conflict with the landowners. I further find that it is the duty of the Board to obtain consent from all the landowners before obtaining any goodwill monies from prospective lessees.

[87] I find that the Counsel for the second, fourth and fifth defendants consented to the final matters for trial, when the prior application was considered to have lapsed. However, the Counsels attempt to revive the application failed. It should have been as a matter of practice, included in the issues for trial.

[88] On 20 December 2006, one Sakiasi Veitogavi accompanied with several others entered the school compound and began abusing the school children and teachers. They also threatened to close the school and if the school is not closed, they would forcibly eject them from the school area.

[89] The Board, after receiving the sum of $10,000.00 goodwill on account of the Plaintiffs on or 9 August 2006, failed to inform the landowners or to account to them, as a result the landowners threatened the occupants of the school, and forced the closure of the school. I find that the Board, as the Trustee for the landowners failed or neglected to ensure that it accounted the goodwill monies to the landowners so that they would not demand further premiums from the Plaintiffs.

[90] I find that the landowners’ actions erupted directly due to the Board’s failure to inform or account the goodwill payments to the landowners within a reasonable time.

[91] I find the Plaintiffs failed to substantiate any breach of duty, or negligence on part of the Police Department, by failing to particularise the events, time, date, and names of the officers who may have had the responsibility to protect and to provide safety to the school.

[92] I find that the Ministry of Education’s decision to close the school, even though based on viability of the class numbers, it should have consulted the management of the school before closing it down. Accordingly, I find on evidence the school has an existing lease, it should be opened forthwith.

[93] As against the Board, I find that the Board made an offer, which lapsed, thereafter by the conduct of the parties, on payment of all the rent, fees and goodwill, the Board agreed to grant the lease to the Plaintiffs. The affirmation of the Board’s intention after the meeting is documented in their letter dated 29 August, 2006, where it states, that "we have granted a lease to you".

[94] I find that it is the Boards’ responsibility to ensure that the subject land was de-reserved before it offered to grant lease to the Plaintiffs. It is the Board’s duty as the Trustee on behalf of the landowners to secure their consent in order to grant lease of native land to the Plaintiffs, I find further, that the Board failed in its duty of care to act in the best interest of the landowners.

[95] I find on evidence that there is a valid lease document in existence issued by the Board in favour of the Plaintiffs for the Momi Indian School.

[96] I find that the Plaintiffs were wrongfully evicted from their leasehold tenure, and are entitled to damages against the Board and the landowners, for the Boards failure, either to pay or to account to the landowners’ goodwill payment within a reasonable time.

[97] I find the landowners and the Board, as the Trustee for the landowners, jointly and severely liable for damages to the Plaintiffs arising from the Board’s refusal or negligence in providing the original lease to the Plaintiffs, as a consequence, the landowners wrongfully evicting the Plaintiffs from their leasehold title.

1 Order that the Native Land Trust Board, [the Board] by its Chief Executive Officer deliver up a duly executed, stamped and registered original Memorandum of lease issued in favour of the Plaintiffs the Momi Indian School, such document is to be delivered to the Counsel for the Plaintiffs within 28 days from the date of this order.

2. Order that the Plaintiffs’ action against the second, fourth and fifth Defendants be dismissed.

3. Order that the third Defendant, the Native Land Trust Board, pay cost in the sum of Three Thousand Dollars ($3000.00) to the Plaintiffs within 28 days from the date of this order.

4. Order that the strike out application filed by second, fourth and fifth Defendants be dismissed and no order for cost is made pursuant to Order 34 Rule 7.

5. Order that the Plaintiffs be at liberty to apply for assessment of damages after 7 days notice.

6. I stand the matter down for assessment of damages against the Native Land Trust Board; generally, the parties are at liberty to apply to restore the matter on 7 days notice.

High Court of Fiji

Sami v Veitogavi [2008] FJHC 391; HBC066.2007L (25 June 2008)