Malani v Gold Hold Company Ltd [2008] FJHC 411; Civil Action HBC 432 of 2007 (7 March 2008)

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BETWEEN
SOFAIA WASA MALANI aka SOFAIA RAIWALUI of 15 Naisa Road, Caubati, Nasinu
t/a PHYMARKETTING ENTERPRISE having its place of Business
at 98 Princess Road, Tamavua, Suva
PLAINTIFF

GOLD HOLD COMPANY LIMITED a company duly incorporated in
Fiji and having its registered office at 33 Freestone Road, Walu Bay, Suva.
1ST DEFENDANT

MINISTRY OF FISHERIES AND FORESTS - of Takayawa Building,
Augustus Street, Toorak.
2ND DEFENDANT

Counsel for the Plaintiff	:	Ms S Devan — Neel Shivam Lawyers
Counsel for 1st Defendant	:	Mr S Singh ) - Parshotam & Co. Mr S Parshotam)
Counsel for 2nd Defendant	:	Mr Sahu Khan - Attorney-General's Chambers
Date of Decision Time of Judgment	: :	7 March, 2008 9.30 a.m.

This is the 1^st defendant's summons for the plaintiffs claim to be dismissed. The application is made under O27 r3 of the High Court Rules. The rule states that: "Where admissions of fact or of part of a case are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties and the Court may give such judgment or make such order on the application as it thinks fit."

The facts of this case are relatively uncontested. The plaintiff is a business woman in the business of importing and exporting. Amongst her exporting products is sandalwood which she supplied to North America and Asian markets. According to her, she has been in the sandalwood trade since 2000.

On 23 August 2007 a consignment of sandalwood arrived in Suva from Lau. The consignment was in the name of the plaintiff who had purchased the products from various resource owners in the Lau Group. Upon arrival, the consignment was confiscated by the 2^nd defendant under the Forestry Decree 1992 on the ground that the plaintiff did not possess a licence to log and extract forest produce. The confiscated sandalwood was subsequently transported and stored at the 2^nd defendant's Nasinu Forest Station. There is some arguments whether the total weight of the consignment was 3½ or 4 tonnes.

It is not denied by the 2^nd defendant that it released the consignment to the 1^st defendant after it had paid the statutory fine totaling $8,285.25. The 1^st defendant also deals in sandalwood trade and, according to the Native Lands Trust Board the issuing authority for licence to extract sandalwood, the first defendant is allowed to contract extraction under the licence issued to one Taitusi Vakarorogo.

The critical consideration underlying the defendant's application is the issue ownership of the sandalwood consignment. It is conceded by the plaintiff that she had no valid licence to trade in sandalwood during her purchasing tour of the Lau Group. She equally has no defence against the confiscation of the consignment by the 2^nd defendant.

Given this general admission by the plaintiff of offences she committed under the Forestry Decree, it would most certainly seem that her claim for restitution or damages for her illegal action cannot be sustained. In this instance, the consignment of sandalwood was confiscated and impounded. The 2^nd defendant acting within his powers under section 33 of the Decree, compounded the offence and levied fine to be paid by the plaintiff. Upon payment of such fine, the property is either returned to the owner if it belongs to her or forfeited to the State (S33 (2)(a)), or if the property does not belong to her, it is returned to the resource owner. It is suggested by the defendants that even if the plaintiff had paid the fines, she should still not have been entitled to the consignment which she readily conceded in her pleadings, should have been returned to the resource owners.

Section 33 of the Decree empowers the Conservator of Forests to compound the offence if the offender consents in writing to it. The act of compounding in this sense in effect amounts to settling or discharging the offence through the payment of a fine. It is an alternative to prosecution under sections 28 and 29. Once the parties agree to the compounding of the offence the Conservator may do either of three things set out at section 33 (2), namely, he may return the property to the offender if it belongs to him; he may forfeit the property to the state, or he returns the property to the resource owner. Clearly the plaintiff in this case, does not fall into any of the three categories. The only possible avenue for the return of the property to her is for the State upon forfeiture, deciding to sell the property back to the plaintiff. This is an exercise of discretion which the Court cannot be in a position to decide on its merit or otherwise.

The plaintiff argued that the 2^nd defendant had in fact acted illegally in releasing and selling the sandalwood consignment to the 1^st defendant. The fact that the 1^st defendant had paid the compounding of offence fine and then taken possession of the property after proper assessment of its had been made, cannot alter the undeniable fact that at no time can the plaintiff claim any proprietal right over the property. Even if she paid the fine imposed by the Conservator under Section 33, the ownership of the property did not pass. The discretion what to do with the confiscated property remained with the 2nd defendant. This being so then it stands to reason that the plaintiff does not have any legal basis for her claim based on her own admissions.

Having decided that the ownership of the consignment of sandalwood did not at anytime pass to the plaintiff which would have given her some rights to institute this action, I hasten to add that the 2^nd defendant could have been more transparent in its dealing with the plaintiff. At the very least the plaintiff should have been given time to pay the fine or notice of the intention to release the consignment to the 1^st defendant, even if in the end the discretion to sell to anyone afterwards remained with the Conservator.

In the circumstances I find in favour of the 1^st defendant's Summons and order that the plaintiffs claim be dismissed pursuant to Order 27 rule 3.

As a consequence, I order the release of the $100.000 Bank bond posted by the 1^st defendant in the Registry, forthwith.

High Court of Fiji

Malani v Gold Hold Company Ltd [2008] FJHC 411; Civil Action HBC 432 of 2007 (7 March 2008)