Rasoki v Attorney-General of Fiji [2010] FJHC 266; HBC107.2009 (12 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 107 OF 2009

BETWEEN:

ATUNAISA LACABUKA RASOKI
PLAINTIFF

AND:

ATTORNEY-GENERAL OF FIJI
MINISTER FOR LANDS AND DIRECTOR OF LANDS
REGISTRAR OF TITLES
PROVINCIAL ADMINISTRATOR – SERUA AND NAVUA
STATION OFFICER – NAVUA/DEUBA POLICE POSTS
COMMISSIONER OF PRISONS
FIRST DEFENDANTS

AND:

NATIVE RESERVE COMMISSION
NATIVE LAND TRUST BOARD
FIJI MUSEUM
SECOND DEFENDANTS

AND:

SALESI TEMO
THIRD DEFENDANT

Plaintiff in person
Mr C Tuberi for First Defendants
Mr N Tuifagalele for second named Second Defendant
Mr J Apted for third named Second Defendant

DECISION

There are two interlocutory applications before me arising out of proceedings commenced by the Plaintiff by Originating Summons dated 31 March 2009.

The first application is dated 5 August 2009 and was filed by the First Defendants. It is an application for an order that as against the First Defendants the Originating Summons and Notice of Motion be struck out on the grounds that the Originating Summons (a) discloses no reasonable cause of action, (b) is frivolous or vexatious and (c) is an abuse of the process of the Court.

The application is made under Order 18 Rule 18 (1) and Rule 18 (3).

The application was supported by an affidavit sworn by Jone Natuivau on 6 August 2009. The Plaintiff filed an affidavit in opposition on 13 August 2009.

The second application is dated 28 September 2009 and was filed by the third named Second Defendant (the Museum). It is an application for an order that the Originating Summons and affidavit in support sworn by the Plaintiff on 6 March 2009 be struck out on the grounds that the proceedings (a) disclose no reasonable cause of action, (b) are scandalous frivolous or vexatious, (c) may prejudice, embarrass or delay the fair trial of the action and (d) are otherwise an abuse of the process of the Court.

This application was also made under Order 18 Rule 18 (1) and Rule 18 (3). The Museum indicated that it did not intend to file any affidavit material but would instead address the Plaintiff’s Originating Summons and affidavit in support.

The Plaintiff was given leave to file a further affidavit sworn by himself on 30 September 2009.

The applications were heard together before me on 27 October 2009. On that occasion Counsel and the Plaintiff presented oral submissions on the issues.

The First Defendants submit that the Plaintiff’s Originating Summons should be struck out under Order 18 Rule 18 and under the inherent jurisdiction of the Court. The First Defendants, except for Laisa Raratabu (named as Director of Lands) are referred to by their position or office rather than personally named. The positions are all public offices (as defined in the State Services Decree 2009) and therefore may conveniently be referred to as "the State". It would have been sufficient for the Plaintiff to have named the Attorney-General as First Defendant pursuant to Section 12 (2) of the State Proceedings Act Cap 24.

The proceedings commenced by the Plaintiff against the First Defendants are subject to the State Proceedings Act Cap 24 and Order 77 of the High Court Rules. Section 15 of the State Proceedings Act sets out two provisos to the power of the Court to grant relief in proceedings by or against the State. They are first that the Court shall not grant an injunction or make an order for specific performance in any proceedings against the State. Instead, the Court may make an order declaring the rights of the parties.

Secondly, the Court shall not make an order for the recovery of land or other property in any proceedings against the State. Instead, the Court may make an order declaring that the Plaintiff is entitled as against the State to the land or property or to the possession thereof.

Even after a careful reading of the Plaintiff’s Originating Summons, it is difficult to determine the nature of the relief sought by the Plaintiff. However on the front page of the document the following appears:

"... the Plaintiff claims against the defendants (or seeks the determination of the Court on the following questions, namely (1) New Grave Committee (or as may be) be dissolved (2) return state lands and graves (3) Contempt of Court (4) Joinder of Party."

In paragraph 32 of his affidavit in support the Plaintiff sets out in more detail an explanation for the relief that he claims:

"I brought this action in support to case 380/04 Writ of Summons applications and in support to Case 121/2000 by applicant’s legal counsel showing proofs of frauds and illegal conversions of all Pacific Harbour Lands; for a Vesting and Caveat Order to the Grave Yards States Land; For return of all states reserves at Pacific Harbour taken by illegal transfers; And return Makosoi Estate Housing Authority Lands purchased by States; for Titles be registered back to Plaintiffs and applicant in this matter; to stop future disputes on Pacific Harbour ancestral lands; ...."

It would appear that relief (2) is of some relevance to the second proviso in section 15 of the State Proceedings Act.

The Originating Summons also sets out a number of matters which are probably intended to particularise the four claims that constitute the relief sought by the Plaintiff. Paragraphs 7 and 12 appear to be the particulars of the relief sought under relief (2).

Without going into the details of those two paragraphs, it is sufficient to state that to the extent that the relief sought by the Plaintiff against the State (the First Defendants) is for the Court to make orders for the return of the lands claimed, it is prevented from doing so by virtue of section 15 of the State Proceedings Act. Furthermore, if the court were to make a declaration concerning ownership of the lands in question, then I am satisfied that the Court would be determining the same issues that are currently before the Court in action No. 121 of 2000.

That action was commenced by Writ dated 20 March 2000 by the same Plaintiff. Fortunately for the Court, in those proceedings the Plaintiff was represented by Counsel. The Defendant was named as the Attorney-General pursuant to the State Proceeding Act. Paragraph 2 of the Statement of Claim pleaded that the Defendant was being sued for and on behalf of the Minister for Justice and Home Affairs, the Minister for Lands, the Director of Lands, the Registrar of Titles, the Minister for Fijian Affairs and the Chairman of the Native Lands Commission.

In paragraph 1 the Plaintiff pleaded that he was a member of the Mataqali Vunimoli and was suing in a representative capacity on behalf of himself and the members of the Mataqali living in Vunibau Village in Serua and elsewhere in Fiji.

In paragraph 3 of the Minutes of the Pre-Trial Conference dated 20 December 2008 filed in those proceedings, it is clearly stated that one of the issue for the Court’s determination is the Plaintiff’s claim of original ownership up to the present time over land comprising an area of 6750 acres at Pacific Harbour being Crown Land No 561, over land comprising an area of 6522 acres at Pacific Harbour being Crown Land No. 510 and over land in Crown Grants 1366 and 259 and all other lands described as Yarawa East and Yarawa West.

Those proceedings are still pending and now await a trial date.

It was not disputed before me that the subject matter of the two proceedings involved the same land. Under those circumstances, to the extent that the Plaintiff claims ownership of the same land in his Originating Summons (the present proceedings) it is an abuse of the process of the Court.

Relief (3) is also a claim against one or other of the named First Defendants or against the State. The relief is particularized in paragraph 1 of the Particulars as:

"... the defendant’s failure to comply to the Verbal Decisions of a superior Court, HBC Case 380/04, verbal decision on Notice on rulings; and 121/2000 is now still on mention; any action by defendants is a breach of Court process and a contempt of court case when land is still in dispute. Notices attached given."

There are some handwritten additions to the particulars which because of their apparent irregularity I propose to disregard for the purpose of the present application.

The reference to "HBC Case 380/04" is a reference to another action commenced by the same Plaintiff by Writ on 30 August 2004. The Defendants in that action are Laisenia Qarase and Qoriniasi Bale, the Attorney-General and Minister for Justice as the First Defendants and the Native Reserves Commissioner and the Native Land Trust Board (NLTB) as Second Defendants.

In paragraph 11 of his amended Statement of Claim in that action, the Plaintiff seeks an order for the Defendants "to transfer all the land titles to the Mataqali Vunimoli for lease or rent with damages, compensation claims given to until after the Land and Fisheries Bill is passed in Parliament."

In those proceedings the Plaintiff applied for summary judgment and the First Defendants applied for an order that the Statement of claim he struck out. The parties presented submissions to the Court on 18 April 2005 on the striking out application. A decision has not been delivered in respect of that application.

The Plaintiff in these proceedings appears to be relying upon a statement which he claims the judge made during the course of the striking out hearing. The Plaintiff subsequently attempted to obtain an order on the basis of the Judge’s alleged comments.

By letter dated 13 January 2006 the Chief Registrar advised the Plaintiff that:

"Reference is made to your letter dated 29.12.05.

The orders returned by you cannot be sealed, since there was no order as such by the Honourable Justice Jitoko was made on the 18.04.05 as mentioned by you.

Therefore the matter is still pending awaiting Judge’s ruling, in which you will be advised accordingly."

There is no other material before me to support any claim for the alleged contempt of court.
In respect of relief (4), it is not clear what exactly is being sought or upon what facts the Plaintiff relies. A reference to joinder of party could apply to anyone of the parties named in the two writs or to a person not named yet in any proceedings. In any event such relief is usually sought as an interlocutory application in the proceedings in which joinder is sought. If the Plaintiff is seeking relief by way of joinder in either of his other two proceedings, then an application should be made by summons or motion in the appropriate action.

So far as the present proceedings are concerned if there is an application for joinder of a party or parties, it is not an application which should be made in the originating summons.

The First Defendants also submit that on its face the Originating Summons does not set out any coherent facts that give rise to a cause of action against either the State or any one of the entities that are named as First Defendants.

Order 18 Rule 18 (3) states:

"This rule shall, so far as applicable, apply to an originating summons ... as if the summons ... were a pleading".

This rule means that in determining an application under Order 18 Rule 18 to strike out an Originating Summons, the Court applies the same tests as if the Originating Summons were a pleading in the form of a Statement of Claim.

Order 7 Rule 3 provides the Court with some guidance when considering the contents of an Originating Summons in a striking out application. It states:

"Every originating summons must include a statement of the questions on which the Plaintiff seeks the determination or direction of the High Court or, as the case may be, a concise statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the Plaintiff claims that relief or remedy."

In Reserve Bank of Fiji –v- Trevor Robert Gallagher and Another (unreported Civil Appeal No. 30 of 2005 delivered 14 July 2006) the Fiji Court of Appeal stated at paragraph 58 that:

"Order 7 Rule 3 (1) requires an originating summons to state in addition to the relief sought, sufficient particulars to identify the causes of action on which the Plaintiff relies."

In the present case the particulars (i.e. the facts) have not been stated in sufficient detail to enable the First Defendants to identify the cause or causes of action in respect of which the Plaintiff claims relief. Furthermore even where the Plaintiff has stated a cause of action, such as fraud, there are no particulars stated nor is it clear against whom the allegation is made. There is no material in the Plaintiff’s affidavit in support that would establish a reasonable case against any one of the First Defendants.

As a result I have concluded that the Plaintiff’s Originating Summons does not comply with Order 7 Rule 3 and as a pleading it does not establish a reasonable cause of action against the First Defendants.

The First Defendants also submitted that to the extent that the relief sought by the Plaintiff in his Originating Summons was ancillary to the relief sought in his pending actions, it should have formed part of the claim in one or both of those actions. This submission is based on what is sometimes referred to as the rule in Henderson –v- Henderson [1843] EngR 917; (1843) 3 Hare 100. The rule is that generally a party is required to bring his whole case in one proceeding and is not permitted to add fresh aspects to the same litigation by subsequent proceedings which should have been brought in that proceeding with reasonable diligence. (See Reserve Bank of Fiji decision supra at paragraph 42). A less dogmatic application of the rule was adopted by the House of Lords in Johnson v. Gore Wood & Co [2001] 1 All ER 481 and adopted by the Fiji Court of Appeal in the Reserve Bank of Fiji decision (supra) at paragraph 70.

On the material that the Plaintiff has put before the Court in his affidavits and on the basis of the allegations made against the First Defendants in the Originating Summons I am not satisfied that it would have been reasonable for the Plaintiff to have included such matters in either of the Writs. For a start, some of the matters, regardless of their relevance, appear to have taken place after the two earlier Writs had been issued.

However, for all of the reasons that have been considered I am satisfied that as against the First Defendants the Originating Summons does not disclose any reasonable cause of action. The particulars do not raise any question against the First Defendants.

I am also satisfied that the particulars set out in the originating summons so far as they raise the question of ownership of lands at Pacific Harbour and Yarawa are an abuse of the process of the Court. The Plaintiff is attempting to litigate the same issues in at least two if not three different proceedings.

The Museum’s application for a striking out order is based on two grounds. First, the Museum submits that the Plaintiff’s Originating Summons and the particulars set out therein do not comply with Order 7 Rule 3 (1). This rule has already been considered earlier in this decision in the context of the claim against the First Defendants.

Counsel for the Museum submitted that although the Plaintiff has claimed exhaustive relief, there are no particulars provided of the causes of action upon which he claims that relief.

The second ground is based on the provisions of the Fiji Museum Act Cap 263 and the Preservation Of Objects of Archaeological and Paleontological Interest Cap 264 (the Preservation Act).

It was submitted that under the Fiji Museum Act the Fiji Museum is not a legal person and that proceedings should have been commenced against the Board of Trustees. The Museum relied on section 3 (1) of that Act which states:

"For the purposes of managing the Museum and for the purposes of this Act there shall be established a Board of Trustees (in this Act referred to as the Board) which shall be a body corporate by the name of "the Trustees of the Fiji Museum" with perpetual succession and a common seal and power to acquire and hold land".

Whilst I accept the submission, the error is not fatal as it is always open to the Plaintiff to seek leave to amend the name of the third named Second Defendant to reflect the correct designation.

The issues raised by the Museum under the Preservation Act are, however, of some substance.

In the Plaintiff’s Originating Summons there are a number of issues that relate to the "Preservation Act". Paragraph 2 seeks relief in the form of "an interim committee to be appointed by the defendants to look after the cultural centre at this stage to await judgment ...."

Paragraph 3 seeks relief in the form of "an interim order urgently given to stop grave land dispute ....".

Paragraph 4 seeks:

"The reliefs for an order given that the Fiji Museum (Paleontological Acts Cap 264 volume XIV) or defendants to reserve saved burial sites from destruction like ancestral graves at Vunimoli Hill. Not to form a new committee without ancestral landowners consent because of fraud conversion of land ...."

In paragraph 7 the Plaintiff seeks, amongst other things, "return new cultural center graveyard lands." Paragraph 8 seeks "relief to return old and new ancestral graveyard land site and paleontological war site hills for museum preserves." Paragraph 9 seeks the "relief for any burial done, a whale tooth with two hundred dollars fee be given for more or less for the breach ...."

Paragraph 10 seeks:

"The Relief for an Order my lord to appoint a new cultural centre graveyard ancestral landowners committee to see burials made with no damages done to all ancestral grave land sites of Plaintiffs graveyards at Vunimoli Hill and Cultural Centre. The relief my lord is to stop estate managements and real estate dealers bulldozed away further ancestral graves and to allow for Museum Researches under Paleontological Acts make researches."

Under paragraph 11 the Plaintiff seeks an order "to reserving all graves and state land sites taken by fraudulent transfers by defendants."

There is some material in the Plaintiff’s affidavit that is relevant to these claims. First, a document marked Annexure 5 is a Memorandum dated 23 February 2009 from the Provincial Administrator Serua to the Plaintiff. That document states that the Plaintiff has been invited to a meeting to be held on 24 February 2009 at the Waidradra Community Hall. The purpose of the meeting is to settle the differences and form a committee to manage the affairs of the Proclaimed Deuba Cemetery.

The second document is an annexure that is marked number 13. It is an undated circular from a person whose signature block is Mr Salesi Temo (Secretary) of the Committee for the Maintenance and Upkeep of the Deuba Cemetery. The notice states that the District Officer Navua has advised that the Cemetery located at the back of the Arts Village is a public cemetery owned by Government and is no longer under the jurisdiction of the Waidradra Village. The notice states that the District Officer has appointed a committee that is responsible for the maintenance of the area, gives permission for burial and collects relative fees."

The third document is marked annexure 14. This document is a field trip report dated 9 June 2006. It appears to relate to a site visit by archaeological staff from the Museum to an old village site which "belonged to the mataqali Vunimoli from Vunibau Village in Deuba". The report writer stated that "the only evidence that we could see that the area was occupied were some very small stone alignment exposed on the eastern slope which looked like burial mounds. .... It would be very hard to recommend for its protection as we don’t have anything to show".

It is apparent that some of the contents of the report were the result of comments made by the Plaintiff who escorted the archaeological staff from the Museum.

At the outset I accept that the definition of "object of archaeological or paleontological interest" in section 2 of the Preservation Act includes "place of internment".

However the Plaintiff has not alleged any acts of omission or commission against the Museum that would give rise to a cause of action and if proved would result in the Court granting the relief claimed.

Furthermore, the Preservation Act itself does not impose any duty or obligation on the Museum that would give rise to a cause of action to enable the Plaintiff to pursue any of the relief that he has claimed in the Originating Summons.

Section 3 of the Preservation Act makes provision for the issuing of permits by the Board to competent or experienced applicants to search for any object of archaeological or paleontological interest by either excavation or surface operations. The Plaintiff does not allege that he has been wrongfully refused a permit.

Section 5 requires any person who discovers such objects in the course of permitted operations under an issued permit to give notice to the Board. There is no allegation against the Museum under this section.

Section 6 permits the Minister to declare any such object and/or any area of land in which such objects are believed to exist to be a monument within the meaning of the Act. To the extent that the Plaintiff’s allegation is that an area of land should be declared a monument because of the existence of such objects, his claim should have been made against the responsible Minister and not the Museum. The responsible Minister is the Minister for Education.

Section 7 allows the Museum to purchase or take a lease of a (declared) monument. The section requires the Minister’s approval to be obtained by the Museum and can only be exercised in relation to Monuments. Therefore before the Board can act under section 7 there first has to be a declaration by the Minister under section 6.

Similarly, any function under sections 8 or 10 can only be undertaken after such an object or such lands have been declared a monument by the Minister under section 6.

Section 11 gives the power to the Minister under certain circumstances, of compulsory purchase of a monument if the Board doesn’t acquire it. There is no role for the Board under section 11.

Section 12 states that every monument that is either acquired by the Board or compulsorily purchased by the Minister is to be maintained by the Board. There is no material in the Affidavit or the Summons to indicate that the Plaintiff is relying on section 12. There is no evidence that the subject lands have been declared a monument and until then none of the subsequent obligations that are imposed on the Board under the Act arise. The declaration by the Minister is a condition precedent to the Board’s subsequent obligations.

There is no allegation in the material that the Museum has failed in its obligation under section 14 to protect a monument (being a place of worship or tomb) from pollution or desecration.

Section 20 (1) of the Preservation Act states:

"The Board and any other person specially authorized by the Minister, may, at any time, inspect work being done in connection with objects of archaeological or paleontological interest or a monument and may order cessation of such work pending further orders from the Minister".

There is an obligation placed on the Board under section 20 to carry out such inspections as may be necessary in respect of work being done in connection with such objects. The purpose of the inspection is by implication to ensure that such objects and monuments are not damaged or destroyed.

However there is no material to suggest that the inspection of the old village site was in breach of the section in the sense that it ignored any risk of damage or destruction to any existing such objects. There is no material to substantiate a claim against the Museum in respect of a breach of duty arising under section 20.

In his submission the Plaintiff relied upon the material in his affidavits and submitted that there was sufficient material facts in those affidavits to support his claim for the various remedies claimed in the Originating Summons.

It is only in extreme cases that a court should strike out a Plaintiff’s claim for relief. In some cases it is possible to give leave for a Plaintiff to amend the grounds of a claim or even the claim itself. In other cases it may be desirable to stay subsequent proceedings pending the outcome of overlapping pending proceedings.

It is with some reluctance that I have come to the conclusion that the Plaintiff’s Originating Summons in so far as relief is sought against the First Defendants and the third named Second Defendant, is not such a case. The allegations are so general and vague that it is not appropriate to require those parties to be put to additional expense by prolonging the proceedings against them.

So far as the First Defendants are concerned, it is virtually impossible to determine which one of the named entities is to provide the necessary instructions to defend the proceedings. It is unclear as to what cause of action is being pursued by the Plaintiff and there are virtually no allegations of fact to assist any one of the named First Defendants to identify what challenge must be met.

As for the Museum, the Plaintiff has not alleged any facts that give rise to any liability under the Preservation Act.

The end result is that the Originating Summons and the claims for relief against the First Defendants and the third named Second Defendant are struck out.

The usual rule as to costs should apply. There is no reason why costs should not follow the event. I therefore order that the Plaintiff is to pay to each of the successful parties (i.e. the State as First Defendant and the Museum as third named Second Defendant) the sum fixed summarily at $300.00 (total of $600.00).

W D Calanchini
JUDGE

12 February 2010
At Suva