Native Lands Trust Board v Ledua [2011] FJHC 605; HBC144.2010 (27 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 144 of 2010

BETWEEN:

NATIVE LAND TRUST BOARD
a body corporate of Victoria Parade, Suva incorporated pursuant to
the Native Land Trust Act Cap 134, Laws of Fiji.
PLAINTIFF

AND:

JIMAIMA LEDUA, SULIASI VOSABECI, LIVAI DELAILOA, LAISA DURI, SULUETI ADIBERA, TOMASI DALITUICAMA, MEREONI RANOKO, MOSESE BAVORO, TOMASI KEVU, SOVA RAMULUSE, TALEI KOTOBALAVU, EMA & FILIPE, JOSAIA COKOTIONO, USA TUINACEVA, NAIBUKA VAKALAWA, LATILETA RACAVA, LUISA BARAVI, JONE RAIKABULA, VILIAME JITOKO, ATUNAISA MUDUNAVONU, ESETA VOSATATA, FILIMONI LEDUA, TOMASI KEPU, TAOBA TAKILAI, VOLAU TAROGI, WATI ROGO.
1ST DEFENDANTS

AND:

MINISTRY OF LOCAL GOVERNMENT, HOUSING, SQUATTERS SETTLEMENT & ENVIRONMENT.
2ND DEFENDANTS

BEFORE: Master Deepthi Amaratunga
COUNSEL: Legal Officer, NLTB for the Plaintiff
Nawaikula Esquire for the 1st Defendants
Attorney General of Fiji for the 2nd Defendant

Date of Hearing: 24th August, 2011
Date of Ruling: 27th September, 2011

RULING

1. INTRODUCTION
   

1. The 1st Defendant has filled the summons for setting aside of the default judgment entered by the Plaintiff. The Plaintiff has filed the writ of summons for ejectment of the 1st Defendant on the premise that they are illegally occupying the native land that comes under the purview of the Plaintiff. In the proposed statement of claim the Defendants has claimed equitable rights and estoppel and also states that in terms of the Section 3 of the Native Lands Act they have a legal right under the custom and tradition to remain in the premises since they have performed the rituals to the land owning unit.
   

2. FACTS
   

2. Plaintiff filed an originating summons seeking declarations that Defendants are illegally occupying the land in question and that they do not have equitable right to remain there and for an order for possession to the Plaintiff.
   
3. The Defendants have filed a counter claim to the said originating summons in terms of Order 28 rule 8 and the Judge has ordered on 18th January, 2011, to the Plaintiff to file a statement of claim within 14 days.
   
4. The Plaintiff has filed the writ of summons dated 31st January, 2011 annexed the statement of claim and the said statement of claim stated inter alia:
   
   1. The Plaintiff is established by statute whose sole responsibility is the administration of all Native Land in Fiji pursuant to the Native Land Trust Act.
      
   2. All of the 1st Defendants are illegal occupants of the land known as Veikoba Subdivision comprising of 52 acres NLC Lot 3M/31, M/33(P/0-1292 acres).
      
   100. The land in question is native land owned by the Mataqali Naulukoroa of Kalabu in the province of Natasiri.
        
   4. The land had been vacant until sometime in the 1950s when some of the descendants of the 1st defendants approached the landowning unit requesting to occupy and reside on the land.
      
   5. The understanding to this arrangement was for the 1st Defendant to live temporary until they find and secure a property and more permanent residence for themselves, however, to day they remain on the said land.
      
5. The Plaintiff also state that in serving the landowning unit's best interest, development plans were being made between the Plaintiff and the 2nd Defendant in conjunction with the landowning unit to take place on the land.
   
6. The Defendants did not file a statement of defence within the stipulated time and a default judgment was entered against the Defendants.
   
7. The Defendants filed the summons to set aside the default judgment on 31st March, 2011 and the affidavit in support of the said summons annexed a proposed statement of claim.
   

100. LAW AND ANALYSIS
     

8. The law relating to setting aside of the default judgment is well settled in Fiji. In Fiji Court of Appeal in Wearsmart Textilts Ltd v General Machinary Hire Ltd [1998] FJCA 26 the grounds for setting aside of the default judgment was adopted in the case of Coral Sun Ltd v Whippy [2009] FJHC 254 where the rules were summarized as follows:
   

'10. A defendant applying to set aside a default judgment must satisfy the following in order to succeed:

1. Meritorious defendant which has real prospect of success and carry some degree of conviction. It must have a realistic as opposed to a fanciful prospect of success. A supporting affidavit disclosing the condescending particulars for a meritorious defence is mandatory; Wearsmart Textilts Ltd v General Machinary Hire Ltd [1998] FJCA 26;
   
2. Some explanation as to why the default judgment was allowed; Evans and Bartlam [1937] 2 All ER 646:
   
   1. Some explanation for the delay in making an application to set aside Pankaj Bamola & Anor v Moran Ali Court of Appeal Civil Appeal No 50/90.
      
   2. That the Plaintiff will not be prejudiced that may be cause to the Plaintiff as a consequence of setting aside the default judgment Shrir Dutt V FNPF (1988) 34 FLR 67.'
      

4. MERITS OF THE DEFENCE
   

9. The Plaintiff in the statement of claim has admitted that the decendants of the 1st Defendants had come to the land with the pemission of the landowning unit and has remained since 1950. It is clear that when a person is residing over a property with the consent and for over 60 years, there would have been some improvements and under what circumstances those improvements were done, and what rights derived from them needs to be tested in a hearing as the land belongs to natives. Their customs and traditions and what transpired for a period exceeding 60 years needs to be tested through evidence. The Defendants claim that they have a right to remain in the property as they have performed the rituals, in terms of the traditions and customs of the landowning unit. The proposed statement of defence also alleges proprietary estoppel and this needs to be tested in the light of the customs and traditions relating to the Native Lands. So, the proposed statement of defence has shown a meritorious defence.
   
10. In the case of Australian Conference Association Limited v Sela [2007] FJHC 62; Civil Action 0357 of 2005 (31 January 2007) the issue of traditions and customs of the Natives were dealt even though the tile was registered in terms of the Land Transfer Act. In that case Justice Coventry held in paragraph 52 as follows:
    

'[52] To whom does the estoppel extend? The original grant was to those Solomon Island people who approached the Chiefs in Tamavua with their gifts. They were permitted to occupy the land in perpetuity, subject to the observance of certain custom obligations. Those people and their descendants are the persons who have occupied the land, built on it, developed it and made it their homes. These are the people whom successive legal title holders, including these plaintiffs, have known were on the land and knew were developing it and occupying it as their homes.'

11. In the present case again the statement of the claim of the Plaintiff admitted that Defendants have come in to possession with the consent of the landowning unit, as far back in 1950, thus the customs and traditions of such landowning unit and the understanding with them needs to be ascertained. Admittedly, the Defendants and their decendants have lived in the said land for over 60 years, building houses and developing the land in the process and for nearly 60 years the Plaintiff who is entrusted with the native land remained silent, allowing the Defendants and their decendants to build and live in the land as a community. The plaintiff alleges that the initial consent by the landowning unit was to allow the Defendants to stay in the premises till they find a suitable alternative land to settle down, permanently. So, this need to be tested with oral evidence in the absence of any documentary evidence and this would have been one reason for converting the originating summons to a writ action on the direction of the judge. So, the proposed statement of defence shows more than a meritorious defence which has real prospect of success and carry some degree of conviction as decided in Wearsmart Textiles Ltd v General Machinary Hire Ltd [1998] FJCA 26.
    

5. DELAY IN FILING THIS SUMMONS
   

12. The Defendants have filed this summons dated 31st March, 2011 and the default judgment was served on the 1st March, 2011. So, the application is filed within 30 days of the receipt. There are several defendants and considering the social and economic status and circumstances of the case it can be said that the delay of 30 days is not unreasonable and not an inordinate delay under the circumstances.

6. THE PREJUDICE TO THE PLAINTIFF
   

13. The Plaintiff has obtained the default judgment and has served it on the 1st Defendants and no action was taken to execute the order. The Defendants have come to the court within 30 days of the service of the said Default judgment. If the default judgment is set aside there is no serious prejudice to the Plaintiff and I have not been shown any prejudice that they would encounter, that cannot be compensated by an award of a cost.
    

7. CONCLUSION
   

14. The default judgment entered against the 1st Defendants is set aside subject to a cost of $500 being paid by the Defendants to the Plaintiff. The Defendant is ordered to file the statement of Defence by 6th October, 2011 and to pay the cost of $500 to the Plaintiff by 5th October. If the cost is not paid by 5th October, 2011 the statement of defence will be struck off.
    

The Court Orders as follows:

1. The Default Judgment is set aside.
   
2. The Defendants are ordered to pay a cost of $500 to the Plaintiff by 5th October, 2011.
   

100. The Defendants is granted time till 6th October, 2011 to file and serve a statement of defence and if cost is not paid by 5th October, 2011 the statement of defence will be struck out.
     

Dated at Suva 27th Day of September, 2011.

............................................
Mr D. Amaratunga
Acting Master of the High Court
Suva