Naqa v Fiji Electricity Authority [2011] FJHC 176; HBC237.2002 (18 March 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 237 of 2002

BETWEEN:

RATU SOLOMONI NAQA
1st Plaintiff

WATISONI RADAUBALE
2nd Plaintiff

WATISONI WAINIMOLE MOCE
3rd Plaintiff

RATU PENI TUBUNA
4th Plaintiff

RATU EPINERI BOSEIWAQA
5th Plaintiff

SAILASA TUILAU
6th Plaintiff

VILIVE ROKO
7th Plaintiff

FILIMONI MATAWALU
8th Plaintiff

SEMI NIUKAU
9th Plaintiff

ALIPATE WAILEVU
10th Plaintiff

SOLOMONI YADRAIKANA
11th Plaintiff

WATI NASOKIDI
12th Plaintiff

JOSEVATA RAILUVA
13th Plaintiff

AND:

THE FIJI ELECTRICITY AUTHORITY
Defendant/Applicant

THE NATIVE LAND TRUST BOARD
First Interested Party

FA & COMPANY
Second Interest Party

Counsel: Mr. I. Fa for the Plaintiffs.
Ms. R. Naidu for the Defendant.
Ms. L. Komaitai for the First Interest Party.

Date of Judgment: 18th March, 2011

JUDGMENT

[1] The defendant, Fiji Electricity Authority (hereinafter referred to as FEA), by way of summons dated 26.0.2010 seeks following relief from this court in relation to the decision of this court dated 31.10.2005, final order dated 4.5.2006 and the Deed of Settlement dated 10.05.2006.

1. That the Native Land Trust Board(hereinafter referred to as NLTB) be joined in the action herein as an interested party;
   
2. That Fa & Co. be joined in the action herein as an interested party;
   
3. That the Native Land Trust Board and Fa & Company do serve each of the plaintiffs this summons and supporting affidavit;
   
4. Whether upon true construction of the said order, clause 4 of the said Deed of Settlement and clause 7 of the said Deed of Agreement and in the events which have occurred:
   
   1. The Native Land trust Board is duly appointed under clause 4 of the Deed of Settlement to receive payments from the Fiji electricity Authority of the annual instalment of settlement sum due on 30.09.2019 and all such future payments on behalf of the 12th plaintiff the Mataqali Nadrogo.
      
   2. Fa & Company duly appointed under clause 4 of the Deed of Settlement to receive payments from the FEA of the annual instalment payment of the settlement sum due on 30.09.2009 and all such future payments on behalf of the 1st plaintiff Mataqali Vatuba, 2nd plaintiff Mataqali Lauwaki, 3rd plaintiff Mataqali Naviro, 4th Plaintiff Mataqali Korolevu, 5th plaintiff Mataqali Nakorolo, 6th plaintiff Mataqali Rovodrau, 7th plaintiff Mataqali Nabuloutini, 8th plaintiff Mataqali nabuto, 9th plaintiff Mataqali Namoriti, 10th plaintiff Mataqali Narokomai, 11th plaintiff Mataqali Nakoro, 13th plaintiff Mataqali Nakorolo represented by Josevata Railuva suing in his personal capacity as a member of the Mataqali Nakorolo,
      

Alternatively to (iv) above

(v). Directions of this court as to the payment of annual instalment payment of the settlement sum due on the 30th day of September 2009 and all such future payments;

(vi). That pending the disposal of the action herein the defendant do pay all annual instalments sum into this court in full satisfaction of its obligations under clause 4.1 of the Deed of Settlement dated the 10th day of May 2006; such payments to be invested in an interest bearing account for the benefit of the beneficial owners thereof of the plaintiffs;

(vii). A declaration that Fa & Co. was not entitled to cause to be issued and executed the Writ of Fieri Facias dated 4th of March 2010 in the action herein;

(viii). An order that the sum of $456024.00 paid by the defendant under protest under the Fieri Facias issued the 4th day of March 2010 refunded by Fa & Co as follows;

1. The sum of $443451.00 requesting the annual instalment payment of the settlement sum for the year 2009 be paid into court;
   
2. Do refund the sum of $ 12573.68 claimed as interest to the defendant
   

(ix). Further or other reliefs this court seems appropriate;

(x). That costs be paid by the Native Lands Trust Board and/or Fa & Co. and/or the plaintiffs on an indemnity basis.

[2] In support of the defendant's summons, an affidavit was filed by one Peni Volavola who is the unit leader of the FEA.

[3] The relevant parts of the affidavit of Peni Volavola can be summarised as follows:

[4] The substantive action was commenced by the plaintiffs in the year 2002. Justice Winter delivered the judgment on 31.10.2005 and made final orders on 4.5.2006. Subsequent to the said orders the plaintiffs and the defendant entered into a Deed of Settlement in compliance with the final orders of Justice Winter.

[5] The deponent further states that the plaintiffs and the first interested party entered into a Deed of Agreement which is referred to in the Deed of Settlement and is an integral part of the final orders.
[6] By virtue of clause 4 of the Deed of Settlement, the second interested party was appointed a trustee for the plaintiffs to receive payment of the settlement sum from the defendant, to administer and distribute the same among the plaintiffs.

[7] It is further stated that in terms of the clause 7 of the Deed of Agreement, the plaintiffs and the 1st interested party were required to meet after the 3rd anniversary of the Deed of Agreement (i.e. the 10th day of May 2009) and to make a binding decision in respect of whether the 1st interested party should continue to be the trustee to receive payment of the settlement sum.

[8] The defendant mainly relies on the clause 4 of the Deed of Settlement and the clause 7 of the Deed of Agreement.

[9] This case was concluded by Justice Winter and final orders were entered.

[10] However, the defendant has made use of the clause 4 of the Deed of Settlement while making this application.

[11] I will reproduce the relevant orders contained in Justice Winter's judgment.

1. The defendant will pay into court the sum of $52.8m in the following manner.
   
2. The defendant will pay into court the sum of $5m as first payment by the 30th of November 2005. This sum may be distributed by the court to Mr. Fa after approval of the memorandum he will file.
   
3. The defendant will pay the plaintiff the outstanding capital and interest due for payments from 2002 to 2005 calculated at appendix 'B'
   
4. The plaintiff will file and serve by the 11th of November, 2005 memorandum detailing its intentions for the equitable distribution of the funds between the plaintiffs trusts; providing a full accounting of fees and disbursements and general trust account reconciliation for the plaintiffs.
   
5. That memorandum will include the following information:
   
   1. Copies of trust deeds of each individual Mataqali.
      
   2. Proposals for trust administration fees.
      
   3. Proposal for division of any money received as a lump sum and a schedule of payments for the future.
      
   4. A full fee and disbursement statement together with a balance statement including trust account reconciliations.
      
   5. In the interim all settlement proceeds will be received by the court and held pending my final order giving practical effect to the disbursement of the funds.
      

[12] Subsequent to the filing of its memorandum by the plaintiffs the court made its final orders on 04.05.2006.

[13] The said orders read as follows:

1. Settlement is approved for the purposes of Order 80 rule 8 of the High Court Rules in terms of the comprehensive settlement documents and Deed of Settlement attached to this order.
   
2. I record that costs that were reserved in the judgment have now been settled and agreed to as between the parties and accordingly no further order for costs is required.
   
3. The sum of $ 9.4m plus accrued interest paid into Court pursuant to the order of the 31st of October is now to be paid out to the plaintiff's solicitor to be dispersed in terms of the agreed settlement.
   

[14] A deed of settlement was entered between the plaintiffs and the defendant on 10.05.2006.

[15] The defendant's main contention is that in terms of the Clause 4 of the Deed of Settlement the Fa & Company is obliged to certify and inform the defendant of the duly convened meetings held between the plaintiffs and first interested party; and inform the defendant of the decisions of such meetings.

[16] In support of the motion, the defendant has annexed 30 documents marked as P 1 to P 30, to the affidavit of Peni Volavola.

[17] Opposing the defendant's motion one Watisoni Radaubale has filed an affidavit. In that affidavit he states that the NLTB had consultations with the land owners to determine whether any of the land owners wanted the administration of their settlements to be transferred to the NLTB. In that meeting only one Mataqali had agreed to transfer the administration of their settlement sum to the NLTB, whereas the remaining eleven Mataqalis have opted to continue with Fa & Company to distribute the settlement sum.

[18] It is further stated that the defendants are acting outside the statutory role of the FEA and are refusing to acknowledge the fact that 11 Mataqalis have chosen the Fa & Co. to distribute their settlement sum.

The clause 4 of the Deed of Settlement reads as follows:

4.1. Subject to this clause FEA will pay all amounts comprising the settlement sum as follows:

• (a) To the trust account of Fa & Company, solicitors of Suva;
  
• (b) If notified in writing by Fa & Company that agreement has been reached between the land owners and the NLTB in terms of the Deed of Agreement between NLTB and the landowners (as referred to in Schedule D hereof) all succeeding payments to the NLTB provided that:(emphasis added)
  

In the event in (b) has not occurred and (i) Fa & Company ceases to practise or to operate a trust account or (ii) Fa & Company ceases to act for any landowners, or (iii) in the event of any doubt as to the proper direction of payments, any party may apply to the High Court for directions as to payment. In any proceedings in which orders are applied for or made by the court of its own motion FEA shall have the right to be heard, and shall in any event have the right at any time to seek to be heard.

4.2.(a) The landowners jointly and severally agree that they will accept payment by FEA in terms of clause 4.1 above and the signing of a document in the form of schedule B shall operate as their individual collective release as set out in clause 5; and

(b) to the extent that the landowners or any of them ("Non-collecting landowners") do not collect their individual entitlement to part of the payment by FEA in terms of clause 4.1 and do not sign a document in the form of schedule B, the person then holding that uncollected portion of moneys(being either Fa & Co. or NLTB) will hold such entitlement in trust for the Non Collecting Landowners in terms of the causes of action arising under the first and second proceedings provided that any non collecting Landowner may at any time, on the signing of the document in the form of Schedule B, accept payment as though he or she had done so at the point of first distribution of the sums payable to landowners under this deed.

4.3. The plaintiff acknowledge that it is the contention of FEA and NLTB to secure the Landowner' consent to the grant of the catchment area lease at the time of distribution of the settlement sum to the landowners and undertake to:

(a). Work with NLTB to ensure that distribution takes place in the shortest practicable timeafter execution of the deed;

(b). fully inform landowners of the consequence of this deed

(c). comply with any orders of the High court of Fiji with respect to the explanation of this deed to the landowners.

[19] The defendant's position is that upon a true construction of the order of the court, clause 4 of the Deed of settlement and clause 7 of the Deed of Agreement, the defendant is obliged to satisfy itself that clause 4 and clause 7 are complied with and in the event of any doubt as to whom the payment shall be made, seek directions of the court prior to make any payments.

Clause 7 of the Deed of Agreement reads as follows:

The land owners agree with NLTB that after the third anniversary of this deed they will meet with NLTB to discuss future administration and distribution of the settlement sum. Should the Landowners or any of them so agree to transfer such function of administration and distribution of the settlement sum at that time to NLTB, then NLTB will:

1. Ensure that every member of each Mataqali who is registered in the Register of the Native Land (VKB) for that Mataqali is correctly identified;
   
2. Ensure compliance by the Trustees of the Mataqali Trust in accordance with Deed of Trust for each Mataqali now settled;
   
3. Provide an audited report at the end of each year reporting those sums distributed as settlement money to members of each Mataqali entitled to share in the settlement sum;
4. The NLTB agrees that in the event the land owners agree to transfer to it the deed and distribution of the settlement sum, it will not charge the land owners poundage for receipt of or administration of the moneys comprising the settlement sum but will charge a fee to be agreed with the Landowners as a reasonable cost of its said services, and in the absence of agreement, as determined by arbitration.
   

[20] It could be noted that the clause 4.1(b) of the Deed of Settlement refers to a Deed of Agreement between the landowners and the NLTB.

[21] Therefore, not only the Deed of Settlement but also the said Deed of Agreement is very material to the administration of the distribution of settlement sum to the plaintiffs.

[22] According to the clause 7 of the Deed of Agreement, the landowners had agreed with the NLTB, that after the 3rd anniversary of the Deed of Agreement, they would meet with NLTB to discuss the future administration of distribution of the settlement sum. The Deed of Agreement was entered into between the plaintiffs and the NLTB on 10.05.2006.

[23] Therefore, after 09.06.2009, the landowners and the NLTB are required to comply with the clause 7 of the Deed of Agreement.

[24] I shall now turn to the clause 4 of the Deed of Settlement, which governs the payment of settlement sum.

[25] Clause 4.1(a) and 4.2 (b) of the Deed of Settlement are very clear.

[26] Clause 4.1(a) requires FEA to pay all amounts comprising the settlement sum to the trust account of Fa & Company solicitors.

[27] However, if an agreement has been reached between the landowners and the NLTB in terms of the Deed of Agreement, and if it is notified in writing by Fa & Company, all succeeding payments shall be made to the NLTB.

[28] In light of clause 4.1(a), agreement has to be reached in terms of the clause 7 of the Deed of Agreement.

[29] Therefore, it is obvious that the Deed of Settlement executed pursuant to the court order, has not appointed Fa and Co. as trustees for the Mataqalis unconditionally. That appointment is subject to the clause 7 of the Deed of Agreement.

[30] The clause 4 of the Deed of Settlement has to be read with the Deed of Agreement. Furthermore, the NLTB and the landowners are bound by the said Deed of Agreement.

[31] In terms of Clause 7 of the Deed of Agreement, the NLTB is obliged to convene a meeting after the expiration of three years of the Deed of Agreement, and decide the future administration and distribution of the settlement sum

[32] The above position was admitted by the NLTB by letter dated 26.11.2009.

When is the Courts direction necessary?

[33] Clause 4.1 (b) provides 3 instances where the direction of the Court is necessary.

1. If no such agreement has been reached between the NLTB and landowners and Fa & Company ceases to practice or to operate a trust account;
2. When Fa & Company ceases to act for any landowners; or,
3. In the event of any doubt as to the proper direction of payments.
   

[34] The annexure P 15 is a letter dated 07.12.2009, sent by the NLTB to the FEA, which is indicative of different positions taken up by the Mataqalis.

[35] By letter dated 24.12.2009, NLTB informed that the NLTB had already consulted Mataqalis. It further states that those Mataqalis agreed their entitlement be paid to NLTB, but it does not state specifically how many Mataqalis or which Mataqalis had agreed to do so.

[36] Annexure P 16 to the defendant's affidavit, confirms that Mataqali Nakorolo have terminated legal representative from Fa & Company on 14.10.2009.

[37] Annexure P18 is a letter sent by FEA to the NLTB informing their concern of the different positions taken up by various Mataqalis as to the administration of their settlement sum. Furthermore, P 18 is indicative of uncertainties and the conflicting nature surrounding the Mataqali units.

[38] The most important document is the annexure P 19. It is a letter dated 28.01.2010, sent by the NLTB to the FEA. It says that the NLTB had successfully carried out and completed the consultation with the 12 Mataqalis in terms of the clause 7 of the Deed of Agreement. According to that letter, consent forms were prepared and distributed at all meeting venues, and Mataqalis were informed that the NLTB would only accept for implementation those that have the majority percentage of 51% and over. It further states that only 5 Mataqalis have returned their signed forms and out of them only one Mataqali named Nadrogo of yavusa Navuta, of Nadara village have returned with the majority of over 52%. The remaining Mataqalies have not returned their written consent to the NLTB. Therefore, in the absence of any written document, the NLTB was not in a position to confirm what the remaining Mataqalis have decided.

[39] This clearly demonstrates the uncertainty of the remaining Mataqalis position regarding the administration of the settlement sum.

[40] Fa & Co. has also not tendered written consent forms of remaining Mataqalis thus, failed to establish the fact that remaining Mataqalis have agreed to continue with Fa & Company to distribute the settlement sum in accordance with the High Court order.

[41] Therefore, there is no evidence of any consent having been obtained either by the NLTB or the Fa & Company.

[42] In view of the above, it is apparent that there is an uncertainty and doubt as to the proper direction of payment and distribution of the settlement sum, which warrants the defendant to seek directions from the High Court in terms of the clause 4 (b) of the Deed of Settlement and also in terms of the clause 8 of the Deed of Agreement.

[43] The plaintiffs submit that since this matter has come to an end the defendant cannot make any further application seeking further orders from this court.

[44] Although this matter has come to an end before Justice Winter, it does not prevent the Court to interfere again when there is a doubt as to the direction of the payment. Clause 8 of the Deed of Agreement and clause 4.1(b) of the Deed of Settlement clearly provide for the intervention of the Court under certain circumstances.

[45] The objective of the Deed of Settlement and Deed of Agreement is to ensure the proper and lawful administration and distribution of the settlement sum and also to ensure that the future payments would be made to the correct parties in a proper way without leaving any uncertainties.

[46] Hence, in light of clause 4 of the deed of Settlement any party can apply to the High court for directions as to payments. Therefore, I see no merits in the argument advanced by the Fa & Company that the defendant cannot invoke the Deed of Agreement as it is not a party to it.

[47] One of the orders sought by the defendant is that the inclusion of the NLTB and Fa & Co. as parties to the present action.

[45] In this matter it is apparent that the defendant cannot make payments of settlement sum until and unless the court makes appropriate directions as to which entity the defendant is required to make payments of the settlement sum. In order to do so, it is incumbent on the NLTB and Fa & Company to convene meetings of the Mataqalis and obtain their consent in writing.

[46] However, neither the NLTB nor Fa & Company are parties to this case.

[47] Therefore, it is essential to join them as parties to this case. If not, they will not be bound by any subsequent order made by this Court as to the administration of the payments of settlement sum.

[48] Therefore, it is ordered that Fa & Company and the NLTB shall be joined as parties to this case.

Issuing of Writ of Fiery Facias

[49] In this matter a writ of Fiery Facias was issued against the defendant. The defendant's failure to pay the settlement sum to the Fa & Company, in my view is not deliberate. The NLTB has failed to furnish necessary consent forms of Mataqalis and also has not complied with clause 7 of the Deed of Agreement, which compelled FEA to withhold their payments. The information given by the NLTB is inadequate to determine the wishes of the Mataqalis.

[50] Therefore, the facts of this case amply demonstrate the uncertainty prevailed over the Mataqalis consents as to the distribution of the settlement sum and also the different positions taken up by them regarding the trustees. It appears to this court that the defendant never intended to disobey the Order of the high court but waited to have a proper and clear direction from the court due to the non availability of the proper consent forms from the Mataqalis.

[51] Therefore, I conclude that Fa & Co was not entitled to be issued and executed the writ of Fiery Facias dated 4.3.2010.

Orders:

1. The NLTB and Fa & Company shall be added to this case as first interested party and the second interested party respectively.
   
2. The NLTB and the Fa & Co do jointly and forthwith convene meetings of the 1st to 11th Mataqalis and should furnish the said Mataqalis decisions in writing as to the administration of the settlement sum to the court.
   
3. The defendant shall deposit all annual payments of the settlement sum in the High Court, and the Chief registrar is directed to deposit the said sum in an interest bearing account until further order.
   
4. Fa & Co was not entitled to be issued and executed the writ of Fiery Facias dated 4.3.2010.
   
5. Costs will be in the cause.
   

Pradeep Hettiarachchi
JUDGE