Nayasi v Attorney General [2009] FJHC 3; Civil Action 052 of 2007 (13 January 2009)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO.: 052 OF 2007

BETWEEN:

TANIELA NAYASI
Plaintiff

AND:

THE ATTORNEY GENERAL
First Defendant

THE DIRECTOR OF LANDS
Second Defendant

FIJI POSTS AND TELECOM
Third Defendant

NATIVE LAND TRUST BOARD
Interested Party

Mr. N. Nawaikula for Plaintiff
Ms M. Lord for First & Second Defendants
Mr. A. Ram for Third Defendant
Mr. H. Robinson for Interested Party

Date of Hearing: 23rd October 2008
Date of Judgment: 13th January 2009

JUDGMENT

The plaintiff is a member of Mataqali Navuniyasawa. He claims to bring this action on his own behalf and on behalf of other members of the mataqali. No consent of any member of mataqali of the plaintiff to bring this action has been attached to the affidavit.

The Mataqali Navuniyasawa owns the land on which a number of State departments are located in Savusavu including the police station, the Ministry of Primary Industries, the District Officer’s residence. The Telecom building is also located on this land. At one time it also had the Savusavu Court House on it.

The land was leased by the Native Land Trust Board to State. That lease the plaintiff claims expired on 6th February 2003. That lease was subject of NLTB file 4/15/135.

The plaintiff has sought following orders from the court:

"1] A DECLARATION that the lease known as NLTB Ref. 4/15/135, containing the following improvements, Police Station, MPI Building, Regional Development Building, Telecom Building and D.O’s residence has expired in 2002.

2] A DECLARATION that the expiry of the said lease, the continuing occupation thereof of the defendants is unlawful.

3] AN ORDER that the defendants vacate the subject land.

4] AN ORDER restraining the defendants from dealings with the subject land until the final determination of this matter:

Alternatively

5] A DECLARATION that the plaintiffs are entitled to maximize the benefits from their land and are therefore entitled to demarcate whatever parts they wish to renew of the subject land and issue lease over it.

6] A DECLARATION that of the areas that the landowners wish to renew the plaintiffs are entitled to levy consideration equivalent to the lease value of any such lands together with the value of any improvements thereon, if any."

I must confess I fail to understand both the meaning and the utility of order 5 and 6 above. It really appears to be a search for some form of legal opinion.

The basis of plaintiff’s allegation was that the occupation by the defendants of the land was unlawful because after the expiry of the lease, the lease had not been renewed. Their occupation of the land was therefore without any colour of right, the plaintiff alleges.

This allegation by the plaintiff came unstuck when the defendants in their affidavits showed that the NLTB had agreed to renew the leases.

An affidavit sworn on behalf of the Director of Lands by a valuer in the Ministry of Lands namely Shalendra Kumar showed that the NLTB had agreed to a premium of $40,000.00 with an annual rental of $15,000.00. The premium was paid on 27th June 2007 to NLTB together with NLTB fees – annexure B to the affidavit.

One Narayan Reddy an Executive Legal Officer sworn an affidavit on behalf of the third defendant. He annexed an offer letter from the NLTB to Telecom dated 20th June 2000. He also annexed an agreement to lease over an area of 0.1149 hectares. In his affidavit he deposed that Telecom paid $10,000.00 arrears of rent, $7,000.00 premium and costs of agreement to lease. He also deposed that annual rental of $2,000.00 has been regularly paid.

The plaintiff is not claiming any orders against NLTB as such. The only allegation he has been left with is that he must get higher premium and higher rental on the basis that the improvements on the land belong to the mataqali. These improvements were made by the State prior to the expiry of the lease. The control of native land is vested in the NLTB. It has agreed to certain rental and premium. The parties have proceeded to organize their affairs on that basis. This court cannot order the parties to re-open and re-write the terms of agreement.

The application before the court is misconceived. It would have been quite easy for the plaintiff to find from the NLTB, Labasa Office whether the lease has been renewed or not instead of embarking on a legal action and alleging that the lease had not been renewed.

Further once the defendants had filed their affidavits, the plaintiff should have realized the futility of his application and brought the proceedings to an end.

I dismiss the application with costs. I order the plaintiff to pay costs to the first and second defendants in the sum of $1,000.00 and a like sum to the third defendant in fourteen (14) days. The plaintiff has not disclosed his occupation so I am not sure if the defendants would be able to recover the costs.

[Jiten Singh]
JUDGE

At Labasa
13th January 2009