Rasoki v Attorney-General of Fiji [2010] FJHC 615; HBC107.2009 (19 July 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
Ms L Macendru for second named Second Defendant

DECISION

I have before me a further interlocutory application arising out of proceedings commenced by the Plaintiff by Originating Summons dated 31 March 2009.

The application is undated but was filed on 19 February 2010 by the second named Second Defendant, the Native Lands Trust Board (NLTB).

It is an application for an order that the Plaintiff's Originating Summons and his Affidavit in support sworn on 6 March 2009 be wholly struck out. It purported to be an application filed on behalf of both the first and second named Second Defendants. The application was made pursuant to Order 18 Rule 18 (1) of the High Court Rules and under the inherent jurisdiction of the Court.

It should be noted that the application in its present form is defective. Although an application under Order 18 Rule 18 may be made on any or all of the grounds mentioned in the Rule, such grounds must be specified in the application. It is quite inappropriate for such material to be included in the supporting affidavit. In this case, the supporting affidavit resembles a submission on the law, a more precise form of the application and a submission on inferences and conclusion. The affidavit in support does not comply with the requirements of an affidavit that are prescribed by Order 41 of the Rules.

Unfortunately, throughout the interlocutory proceedings that have taken place since the Originating Summons was filed, the Plaintiff has chosen to appear without the assistance of Counsel. No doubt that is the reason why no objection was taken to the form of the application nor the contents of the supporting affidavit.

The affidavit in support does not contain all the necessary endorsements. The jurat clause is undated, although there is a date in a form that would usually appear at the end of a pleading. It was dated 17 February 2010.

In answer the Plaintiff filed what he termed as Amended Appealed Affidavit of Claims in Opposition. This affidavit was sworn by the Plaintiff on 2 March 2010. It also did not contain the required endorsements and did not comply with Order 41. A reply affidavit with similar deficiencies was filed on 29 March 2010.

When the matter came before me for mention on 26 March 2010, upon the application of Counsel for the second named Second Defendant (NLTB) I ordered by consent that the application by NLTB be amended by deleting the words "1st and" where they appear in the application. The effect of the order was that the application proceeded on the basis that it was an application made by the NLTB alone.

At this stage it should be recalled that I had previously made orders striking out the proceeding as against the First Defendants and the third named Second Defendant.

This application was heard before me on 4 June 2010. On that occasion Counsel and the Plaintiff presented oral submissions on the issue.

The applicant submitted that the Plaintiff does not have a reasonable cause of action against the NLTB. It makes this submission on the basis that there is no claim for any relief or any remedy in respect of the NLTB. There is no allegation against the NLTB. It further submits that the Plaintiff's affidavit in support of the Originating Summons does not contain any allegation against the NLTB nor does it refer to any facts or evidence that relate to NLTB.

The applicant then submits that the claim is frivolous and vexatious on the basis that the land that is the subject of these proceedings is State land and not native land. It says that as a result, NLTB cannot be involved.

Finally, it submits that the proceedings are an abuse of the process of the Court in that the Plaintiff has already commenced proceedings in this Court by writ that raise the same issues between essentially the same parties. It points out that NLTB is a party to the earlier proceedings.

In opposition, the Plaintiff relied on written submissions prepared by himself which had been filed and served on the applicant on 8 April 2010. In those submissions, the Plaintiff urged me to consider the Mabo decision of the High Court of Australia as it affects native title to traditional lands.

The Plaintiff then provided some case law references on the issue of negligence. These were relied upon to indicate that there had been a breach of the duty owed to the Plaintiff and the members of the Mataqali. The Plaintiff then made submissions on issues involving what he termed as the unlawful seizure of ancestral lands.

Whilst I have some sympathy for the Plaintiff in the sense that he is attempting to seek redress for what he considers to be a long standing grievance concerning land at Deuba, Serua Province, I have on a number of occasions suggested to him that the prospects of his claims being successful would be improved if he obtained legal assistance.

The application must succeed. The land in question that is the subject matter of the Plaintiff's grievances is State Land. Although the material before me does not indicate when the land was gazette as State Land, it would appear that it has been so for some considerable period of time.

The acquisition of land by the State is dealt with under the State Acquisition of Lands Act Cap. 135. The management of State lands is dealt with under the State Lands Act Cap 132. Under the legislation there are roles, duties and obligations imposed on both the Minister for Lands and the Director of Lands respectively.

Furthermore, under section 4 of the Native Lands Act Cap 133, it is the Native Lands Commission which is charged with:

"the duty of ascertaining what lands in each province of Fiji are the rightful and hereditary property of native owners, whether of mataqali or in whatever manner or way or by whatever divisions or subdivision of the people the same may be held."

It is clear that, on the facts that must be accepted in an application such as this, the Plaintiff's issues are not with the NLTB as none of the relevant legislation provides any role for the NLTB. The function of the NLTB is set out in section 4 (1) of the Native Land Trust Act Cap 134:

"The control of all native land shall be vested in the Board and all such land shall be administered by the Board for the benefit of the Fijian owners."

The NLTB has no role in relation to any land that is not native land. I am satisfied that the NLTB has been improperly named and/or joined.

Although it may not be necessary to do so, on the material before me I am satisfied that the particulars do not raise any questions against the NLTB. Neither the Summons nor the supporting affidavit disclose any reasonable cause of action against the NLTB.

I also find for the reasons that are clearly stated in my earlier decision delivered on 12 February 2010 in a similar application by the First Defendants and the third named Second Defendant that the present proceedings against NLTB are an abuse of the process of the Court. There are pending actions brought by the Plaintiff against Defendants that include NLTB. The issues are the same or sufficiently similar.

I therefore grant the application and order that the proceedings be struck out against the NLTB. I order that the Plaintiff pay the sum of $250.00 to the second named Second Defendant.

I note that there now remains only two Defendants in respect of the Originating Summons. I also note that the Plaintiff has filed a Motion for joinder. Directions will be given in relation to these matters when the proceedings are next called for mention on Friday 23 July 2010 at 9.30a.m.

W D Calanchini
JUDGE

19 July 2010
At Suva