Nabiau v Vodafone (Fiji) Ltd [2012] FJHC 1475; HBC 153.2012 (11 December 2012)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

WESTERN DIVISION
CIVIL ACTION HBC 153 of 2012

BETWEEN:

VILIAME NABIAU
of Mataqali Nasau, suing in a representative capacity on behalf of Mataqali Nasau of the Yavusa of Solevu Village, in the Tikina Malolo in the Province of Nadroga, Navosa.
PLAINTIFF

AND:

VODAFONE (FIJI) LIMITED
a limited liability company having its registered office at 168 Princess Road, Tamavua, Suva, in the Republic of the Fiji Islands.
1ST DEFENDANT

AND:

ITAUKEI LANDS TRUST BOARD
a body corporate incorporated under the iTaukei Lands Trust Act (Cap 134) with its registered office at 431 Victoria Parade, Suva in the Republic of Fiji.
2ND DEFENDANT

Appearances:

Ms. Renee Lal, Lal Patel Bale Lawyers for the Plaintiff.
Ms. Devan, Neil Shivam Lawyers for the 1st Defendant.
Mr. Nayare, in House Counsel for the 2nd Defendant.

Date of Ruling:11 December 2012

RULING

BACKGROUND

[1]. In 2004, Vodafone (Fiji) Limited erected a micro radio base station and antenna unit ("antenna unit") on a portion of native land on Malolo Island off the Western coast of Viti Levu. This spot of land is actually part of land commonly known as "lakalaka Naqelelevu on Malolo island. Over this land, the iTaukei Lands Trust Board ("iTLTB") had granted a tourism lease (Native Lease No. 26945) to a company called Touchdown (Fiji) Limited and pursuant to which lease Touchdown had built and operated a resort hotel. It is alleged that the land in question is itaukei resreve land. However, the iTLTB had issued a lease over it to Touchdown without first de-reserving it in accordance with procedure set out in the iTaukei Lands Trust Act (Cap 134) and in particular, section 17 which requires the prior consent of the itaukei owners.

[2]. However, it appears that the mataqali has no qualms about the Touchdown lease as they have – to the best of my knowledge – not filed any related legal suit and would have, undoubtedly, have received income from it over the years. The mataqali's qualms however are about Vodafone's antenna unit. The unit includes a transmitter tower which stands approximately 20 meters high above some elevated ground (the elevation above sea level is even higher). The unit (and its presence at that particular location) enables Vodafone to extend its mobile phone coverage to the entire Nadroga/Navosa area.

[3]. The Mataqali Nasau is the traditional beneficial owner of the piece of land in question. Because it is itaukei land, the land is protected under the iTaukei Lands Trust Act (Cap 134)[1].

[4]. The Act sets up the iTaukei Lands Trust Board ("iTLTB") under section 3. And under section 4[2], the Act gives the iTLTB such powers as to effectively make it (the Board) a statutory trustee of all itaukei land. Section 12 of the Act is amongst the key features of the Act's protective regime. This section mandates that the prior consent of the iTLTB must be first had and obtained before any dealing affecting any iTaukei land is entered into. Otherwise, any dealing without such prior consent is void ab initio. I will not review the accumulated caselaw on this point. Suffice it to say that because the iTLTB had not consented to the arrangement between Vodafone and Touchdown, Viliame Nabiau, in a representative capacity for and on behalf of the mataqali members, sues Vodafone for trespass and the iTLTB for breach of statutory duties. According to the pleadings, iTLTB had failed to take action against Vodafone throughout the years since 2004 and, to rub salt into the wound, is contemplating issuing a lease over the land in question to Vodafone without proper consultation with the mataqali.

[5]. The damages alleged against Vodafone are: deprivation of the use of the land whilst Vodafone is in occupation and deprivation of rental income (assessed at $5,000 per annum since occupation plus $40,000 premium foregone) because of the lack of proper formal arrangement about that occupation, exposure to radio frequency fields. Visial infliction of the non-aesthetically pleasing antenna unit and related detrimental impact on value of the land.

WHETHER OR NOT THE PLAINTIFF/MATAQALI IS ENTITLED TO SUE FOR TRESPASS?

[6]. Whether the plaintiff/mataqali is the ideal party to sue for trespass is not an issue before me so I will not discuss this. However, I raise this issue because, normally, the right to sue in trespass to land vests in the person in actual possession. Whether or not the mataqali is actually in possession of the land in question might be a genuine issue. I say that considering that, Touchdown (and its successor in title) had built and operated a hotel resort on the land pursuant to an iTLTB lease. Prima facie, they are then the parties in possession. Can it then be presumed from that fact alone that the mataqali has ceased beneficial occupation of the land? On the other hand, because the land was (allegedly) not properly de-reserved by iTLTB, and considering that under section 9 of the Act, any reserve itaukei land can only be de-reserved (and leased out) if the beneficial traditional owners (i.e. the mataqali) is no longer in beneficial occupation – can it then be said that the mataqali is actually technically still in possession such as to give them locus to sue? These issues were not discussed by counsel.

[7]. Clerk & Lindsell on Torts (15th ed) say as follows at para 22-08:

Trespass is actionable at the suit of the person in possesion of land, who can claim damages of injunction, or both. A tenant in occupation can sue, but not the landlord except in cases of injury to the reversion. Similalry a person in possession can sue although he neither is the owner nor derives title from the owner.

VODAFONE'S APPLICATION TO STRIKE OUT

[8]. Before me is an application by Vodafone to strike out Nabiau's claim on the ground that it is statute barred under the Limitation Act of Fiji (Cap 35).

[9]. Section 4(1) of the Limitation Act of Fiji states as follows:

4.-(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

(a) actions founded on simple contract or on tort;

(b) actions to enforce a recognizance;

(c) actions to enforce an award, where the submission is not by an instrument under seal;

(d) actions to recover any sum recoverable by virtue of any Act, other than a penalty or forfeiture or sum by way of penalty or forfeiture:

Provided that-

(i) in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years; and

THE LAW & COMMENTS

[10]. An action based on trespass to land is an action founded in tort. For such actions, time runs when the trespass is committed. Much of the argument between counsel centered around whether the cause of action accrued from the time Vodafone installed the antenna equipment on the land (i.e. 2004) – or – whether time runs from the time the plaintiff became aware of the (alleged) equipment (i.e. in 2011).

[11]. Vodafone argues that on the statement of claim, time would have to run from 2004. In paragraph 12 of its submissions, Vodafone argues:

..in the last 8 years, the Plaintiff mataqali has never objected to the first Defendant's occupation of the property but only recently in February 2012 sent a demand for compensation in the sum of $140,000. A copy of the letter dated 23 February and 8 March 2012 from Messrs. Advance Property Consultants Limited are annexed hereto marked "SS-3" and "SS-4" respectively.

[12]. Ms Devan cited the cases of Trotter v Maclean (1879) Ch D 574; Canadian Pacific Railway Company v Corporation of the Parish of Notre Dame De Bonsecours [1899] UKLawRpAC 10; (1899) AC 351 and Mudaliar v Housing Authority Civil Action No. 210 of 2000.

[13]. The point of Ms Devan's reference to Trotter and Canadian Pacific Railway Company was to highlight the position in law that, the Limitation Act is strictly applied in trespass cases except in those where the trespass is occasioned by concealed fraud and where the defrauded party had remained ignorant of the trespass without any fault of his own. Her argument then follows that:

The first Defendant's transmitter tower (antenna) is approximately 20 meters in height. The tower with the constructed radio station has been at the site which allows for mobile phone coverage in the area. Persons living in the area including the Plaintiff and members of his mataqali would have known by usage of mobile phones on Malolo island and within the area that there is a communication transmitter that facilitates the mobile network coverage.

The first Defendant came into occupation of the part of the land by entering into a lease agreement with TFL. Its modus operandi was not in secret or done fraudulently. The Plaintiff's Affidavit does not disclose that the first Defendant acted secretly in putting up its tower to the contrary its equipment is visible.

[14]. Ms Lal however relies on Nabiau's deposition that he was never aware of the sublease between Touchdown and Vodafone and that this only came to his notice by chance on one particular occasion sometime in 2011 when he was at the resort:

I first became aware of the equipment when I was at the resort in about 2011 and I was able to get mobile coverage. This was never possible before. I then made some enquiries and was told by workers at the resort of the equipment. I became concerned knowing that the Touchdown lease was on my mataqali's land and contacted the 2nd Defendant (iTLTB) who advised me that they had no idea what I was talking about. The iTLTB then sent a member of its team to the equipment to determine in whose land the equipment was affixed. By using a Global Positioning System the 2nd Defendant advised me that the 1st Defendant's equipment was situated on my mataqali's land.

[15]. Ms. Devan questions the plausibility of Nabiau's account of his "knowledge". She argues that the antenna is a distinctive landmark in that remote island and is highly visible from any point around the island or from all sea approaches to the island. This argument is the stronger of the two. However, the related issue is one which I would rather postpone for trial as it is, I think, something which must be contextualised against the lack of iTLTB consent. And I emphasise here that the fact that iTLTB had not consented to Vodafone's occupation is conceded to by Ms. Devan.

[16]. The approach of Tipping J in Johns v Johns Holloway [2004] NZCA 42 in an application to strike out based on an allegation that the claim is statute barred is sound:

As the case is one involving strike out, the facts upon which the Court must act are those alleged in the plaintiff's pleadings, which must for present purposes be taken as capable of proof. Causes of action or aspects thereof should only be struck out before trial on the basis that they are statute or otherwise barred, if the defendant can establish that proposition conclusively. If there is any real doubt about the matter, the case should be allowed to go to trial where all issues of fact and law can be fully explored. This is no more than the ordinary strike out principle applied in the context of a strike out application which is based on limitation grounds.

[17]. The manner in which the statement of claim deploys the facts lacks depth and gives the impression that the claim was hastily prepared. Nevertheless, on the undisputed facts which I summarize above in paragraphs [1] to [5], as well as those facts pleaded in the statement of claim which I take for the purpose of this application to be capable of proof, it is best to postpone to trial the issue as to whether or not the claim is statute barred. My conclusion is based on the following:

• (i) the land in question is native reserve (see paragraph 6 of the statement of claim) of which the plaintiff's mataqali is the registered traditional beneficial owner. Vodafone's arrangement with Touchdown was not consented to by the iTLTB. Hence, prima facie, the presence of Vodafone's antenna unit on the land is illegal which in turn supports an arguable case that Vodafone is indeed trespassing on the land (subject to the issue in paragraph [6] above).
  
• (ii) Nabiau's account of when he acquired knowledge of the presence of the antenna on mataqali land seems far-fetched (see paragraph [14] above). If "knowledge" is relevant in the computing of time, is Nabiau's personal subjective knowledge then to be taken to represent the knowledge of the entire mataqali and/or the rest of its members? What if the other members had always been aware of the antenna since 2004?
  
• (iii) for the record, Ms. Lal did argue that it is impossible to get each of the members to swear an affidavit pertaining to their "knowledge" but that is not the point. The point is – should Mr. Nabiau's personal subjective knowledge be considered or should Ms Devan's objective-"constructive-knowledge"-type approach be adopted? While Ms. Devan's argument on the point is stronger, this is still an issue which I would rather postpone to trial to be considered together with the issue of the non-consent of the iTLTB.
  
• (iv) I say that the non-consent of iTLTB is relevant. A strict application of the Limitation Act in the circumstances of this case (assuming the point in paragraph [6] above is a non-issue) may have the unjustifiable blindsiding effect of insulating from civil redress what is prima facie an illegal occupation. In other words, if an action for trespass is not maintainable now because it is statute barred, does that mean that Vodafone could stay on the land regardless of the lack of NLTB consent?
  
• (v) in the context of the above, I ask whether or not an action based on "continuing trespass" (rather than just plain "trespass") is maintainable (again, subject to paragraph [6] above)?
  

(vi) "continuing trespass" applies to omissions to remove something brought on the land and wrongfully left there. If a structure or object is placed on another's land, the initial intrusion constitutes the original trespass. However, the continuing failure to remove it will constitute a continuing actionable wrong until the condition is abated (see Hudson v Nicholson [1839] EngR 124; (1839) 5 M & W 437; 151 ER 185; Break Fast Investments Pty Ltd v PCH Melbourne Ltd (2007) ATR 81-930, Konskier v Goodman [1928] 1 KB 421); Holmes v Wilson & Ors [1839] EngR 787; (1839) 10 A&E 503)[3]. In other words, the plaintiff may maintain successive actions, but, in each, damages are assessed only up to the date of the action.

(vii) inr words, rds, in this case, since the "trespass" began in 2004, and in "continuing" to this day, the Limitation Act – arguably - may apply only to limit recovery for the six-year period iately preceding the filingiling of the claim and to date i.e. the Act does not bar a trespass action entirely, but limits recovery.

CONCLUSION

[16]. The above are strong enough reasons in my view to postpone the determination of the issue of whether or not the claim in question is time barred under section 4 of the Limitation Act. There are also issues about whether or not the mataqali has locus. I would strongly urge the parties to revist their pleadings. Case adjourned to 28 February 2013 for mention. Costs in the cause.

Master Tuilevuka

At Lautoka
11 December 2012.

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^[1] The purpose of the Act is to protect and preserve iTaukei land in the hands of native owners (see Mr. Justice Jitoko’s judgement in Mataitoga v Native Land Trust Board [2007] FJHC 147; HBC 315J.2003S (18 May 2007)).
^[2] To oversee and administer the purpose of the Act, the iTLTB is given powers under section 4(1) which states:

4- (1) 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 all Fijian owners.

^[3] In Holmes v Wilson, the defendants built a support for road on the plaintiff’s land. The defendants paid damages for the trespass, but were held liable again in a further action for failing to remove the buttresses.