Ramode v Itaukei Land Trust Board [2011] FJHC 783; HBC177.2011L (2 December 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 177 of 2011L

BETWEEN:

ILIESA BEN RAMODE for and on behalf of MATAQALI VATUDAGIA
1st Plaintiff

AND:

VONOKINAMASI QUARRY CO-OPERATIVE LIMITED
2nd Plaintiff

AND:

ITAUKEI LAND TRUST BOARD
1st Defendant

AND:

LAGICERE INVESTMENTS LIMITED
2nd Defendant

AND:

ILAISA VOKULU No 1 and JOVECI BALEIVALU
3rd Defendant

JUDGMENT FOR INTERIM RELIEF

Judgment of: Inoke J.

Counsel Appearing: Mr H Ram (Plaintiffs)
Mr I Lutumailagi (1st Defendant)
Mr K Vuataki (2nd & 3rd Defendants)

Solicitors: Rams Law (Plaintiffs)
In-house solicitors (1st Defendant)
Vuataki Law (2nd & 3rd Defendants)

Dates of Hearing: 17 November 2011

Date of Judgment: 2 December 2011

INTRODUCTION

[1] This is a dispute between two factions of the same Mataqali over the right to extract sand from their lands. The plaintiffs have brought an application to restrain the second and third defendants from entering and extracting sand from their lands.

[2] The application was filed ex-parte but I did not consider there was urgency in the application justifying an ex-parte hearing so I directed it to be served on the defendants and heard inter-partes. This is my judgment after that hearing.

THE PARTIES

[3] The first plaintiff is Mataqali Vatudagia of Yadua in Cuvu, Nadroga. They are the traditional owners of the lands in question – a parcel which has been described as itaukei reserve being NLC Lot 58 on Map L/8-1 and the other a itaukei lease No 17092 known as Vonokenamasi in Cuvu, Nadroga, having an area of 169 acres 2 roods and 24 perches. The second plaintiff is a registered co-operative owned by the Mataqali which is the sole business arm of the Mataqali and is licensed to extract sand. It was set up pursuant to a trust deed on 22 December 2010. Mr Iliesa Ben Ramode is one of the trustees of the trust.

[4] The first defendant is the statutory trustee of the lands in question but no orders have been sought against it.

[5] The second defendant is another company owned by another faction which is also licensed to extract sand. The third defendants are also members of the Mataqali except for the second named, Joveci Baleivalu.

THE APPLICATION

[6] The summons filed on 3 November 2011 sought to restrain the second and third defendants from entering into and extracting sand from the two parcels of land which I have referred to above. I will refer to them in this judgment as the reserve land and the lease land, respectively. The application was made under O 29 r 1 of the High Court Rules 1988.

[7] The application papers were served on the second and third defendants on 3 November 2011. Because of the nature of the case, on the first return date, 7 November 2011, I directed the parties to file their affidavits within a relatively short time and set the application for hearing on 10 November 2011. When the application was called on 10 November 2011 the defendants had not filed their affidavits in reply. I had also asked counsel for the Board to ensure that extraction of sand from the lands stopped until the application had been heard and determined. Counsel could not give the Court that assurance on 10 November 2011. I felt that the defendants were taking advantage of the situation and was delaying the hearing of the application. I granted the restraining orders sought until further order, gave further directions for the filing of affidavits and reset the hearing for 17 November 2011.

THE AFFIDAVIT EVIDENCE

[8] The first named plaintiff swore the affidavit in support of the application. He had the written authority of the members of the Mataqali Vatudagia and the trust to swear the affidavit. The Mataqali consists of only 19 members of an extended family registered in the VKB. The Mataqali is the owner of the two lands. The lease land was leased to Asha Investment Limited. The copy of the lease shows that the land was first leased for 30 years from 1 April 1962 and then extended for another 20 years from 1 April 1992. The lease will therefore expire on 31 March 2012 unless extended again. The two lands have a common boundary. The lands consist largely of vast areas of naturally deposited fine sand.

[9] Mr Ramode says that the Mataqali lodged its application for a sand extraction licence and on 29 September 2010 the Board gave them a written offer for the licence. A copy of the offer letter showed that the licence was to be for a period of 12 months from 1 October 2010 to extract sand from the reserve land. But despite the Mataqali complying with the offer conditions, the Board refused to grant the licence because the third defendant, Mr Ilaisa Vokulu No 1, subsequently withdrew his consent to the application. The matter was subsequently resolved and in late July 2011 the Board finally issued the licence to the Mataqali to commence from 1 July 2011 for a one year term. He says Mr Vokulu No 1 is the only member of the Mataqali that does not agree that the Mataqali itself should be the licensed extractor.

[10] The Board has also issued a licence to the second defendant to extract sand from the lease land but the members of the Mataqali (except for perhaps Mr Vokulu No 1) have not given their consent to the issue of that licence. The Mataqali wishes to extract sand from the lease land when the lease to Asha Investment Ltd expires on 30 March 2012. He says that he has been informed through the respective solicitors that the company did not give its consent to the extraction of sand. The members have had several meetings with the officers of the Board including its General Manager to express their wish to be granted a licence and their disapproval of a licence being issued to anyone else other than the Mataqali itself. Despite the Mataqali's dissent, the second and third defendants have continued to extract sand from the lease land and have also taken sand from the reserve land. There was an incident on 21 September 2011 when an "agent" of Mr Joveci Baleivalu entered the reserve land and assaulted the plaintiffs' digger driver. That person was subsequently arrested and charged by the police. The defendants continue to extract sand from the lands despite the plaintiffs' protests and letters from their solicitors. And despite having reported the matter to the police they have not been helpful. About 200 cubic metres of sand was extracted between 11 and 18 October 2011. It is being sold for about $40 a cubic metre. The value of the sand in these lands runs into millions of dollars.

[11] The third defendant Ilaisa Vokulu No 1 swore an affidavit in reply. He is a member of the Mataqali. He says not all members of the Mataqali support the plaintiffs. The Mataqali consists of him, his two brothers, two sisters and their children. Some of the children live elsewhere in Fiji and Australia. There are about 16 members of the Mataqali and only he and his three children reside in Yadua village. He does not support the plaintiffs' action.

[12] The other third defendant Joveci Baleivalu also swore and affidavit. He is a business man of Nadi. He is a director and share holder of the second defendant company. He says the reserve land has no fine sand. The only sand is on the lease land. The amount of the sand extracted is less than 170 cubic metres but he did not say how much.

[13] An estate officer from the Board swore an affidavit in reply. I think the only useful statement in the affidavit for the purposes of this application was that the consent of the landowners was not required for the issue of a licence over the lease land.

CONSIDERATION OF THE APPLICATION

[14] In the course of this matter, I had expressed my surprise to counsels that the parties had not been able to resolve the dispute as to whether they were extracting sand from their respective areas because in this modern age it should have been a simple matter of walking the common boundaries with a GPS on the one hand and the registered survey map on the other. By the time this application was heard this issue still remained unresolved.

[15] I have no doubt that damages are not an adequate remedy in this case. Once the sand is extracted and sold it cannot be got back and there is a risk that the company extracting the sand will not be able to repay the landowners if the company had no right to do it in the first place.

[16] I also have no doubt that there are issues to be tried. Some of these I had raised with counsel during the hearing. For example, is it correct that the landowners consent was not required for the issue of the licence over the lease land? Both lands are owned by the landowners, in this case the plaintiff, and that is not disputed. It does not seem logical that consent is required for the reserve land but not the lease land. In the end ultimately, the plaintiffs are the true owners. Secondly, the Board is only the trustee. If the beneficial owners think that the trustee is not acting in their best interests, surely this Court can stop the trustee's acts. And, to say that the landowners consent is not required, seems to me to suggest that the Board always knows best. Another issue is whether the Board or the State has the power to issue a sand extraction licence from iTaukei lands.

[17] The application therefore becomes a determination of where the balance of convenience lies. In other words, where does the overall justice of the case lie: see Air Pacific Ltd v Air Fiji Ltd [2006] FJCA 63; ABU0066U.2006S (10 November 2006).

[18] I think the following factors lie in favour of continuing the interim injunctions. The first is that it is not disputed that the plaintiff Mataqali is the owner of the lands in question. The second and third defendants are not. The defendant Iliesa Vokulu No 1 is only but one of the members of the landowning unit. He has not demonstrated that he has support of the majority. Secondly, if the second defendant is allowed to extract sand, then not all the benefits will go to the majority of the landowners. Outside interests would benefit rather than the majority of the landowners. Thirdly, the landowners have no control over the second defendant. Indeed, it seems to me that in reality it is Joveci Baleivalu that is in control. Fourthly, even if the second defendant is held at the end of the trial to be entitled to its licence, which now only has a few months to run, it can be compensated in damages, because that is all it is interested in, the price of sand.

ORDERS

[19] I therefore order that the interim injunctions granted on 10 November 2011 in paragraphs (i), (ii) and (iii) are continued until further order or final determination of this action.

[20] The costs of this application are to be costs in the cause

Sosefo Inoke
Judge