Qaranivalu v Native Land Trust Board [2013] FJHC 12; Civil Appeal 3.2012 (17 January 2013)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

Civil Appeal No. 3 of 2012

BETWEEN:

Melaia Qaranivalu & Seinimili Buresomo
First Appellants

AND:

Samu Boa
Second Appellant

AND:

The Native Land Trust Board
Respondent

Appearances: Mr Lomaloma for the appellants
Respondent absent and unrepresented
Date of hearing: 10th September, 2012

JUDGMENT

1. The appellants appeal to this Court on the following five grounds of appeal:
   
   1. . the Learned Magistrate erred in fact and in law when he held that the Defendant did not make an offer to the Plaintiffs to lease the said land when the Defendant in fact made a formal written offer of lease to the Plaintiffs which was tendered in Court.
      
   2. .the Learned Magistrate erred in fact and in law when he confused an invitation to treat with a formal written offer made by the Defendant to the Plaintiffs to lease the subject land.
      
   3. .the Learned Magistrate erred in fact in finding that the Plaintiffs failed to meet a term of the written offer when the Defendants in fact withdrew the offer before time for performance had expired.
      
   4. .the Learned Magistrate erred in fact and in law in finding that the Plaintiffs failed to meet a condition precedent, [namely obtain the consent of the majority of the Landowning Unit] when the Defendant's own witness admitted in cross-examination that the land is outside the Native Reserve and therefore the consent of the Native Landowning Unit is not required.
      
   5. .the Learned Magistrate erred in law when he failed to properly apply the ratio decidendi in Ram v Native Land Trust Board [2001] FJHC 404; HBC 184.2008L (19 July 2011) to this case when the facts are different.
      
   6. .the Learned Magistrate awarded costs of $2,500.00 to the Defendant which is excessive in the circumstances.
      
3. The appellants, in their statement of claim filed in the Magistrates' Court, had claimed loss and damages arising from cultivation of a land with cassava in the Tikina of Macuata, evidence of which was given at the trial. The basis of the claim was as follows. At a meeting of the Mataqali Sauniduna of Nakama Village, Macuata of which the first appellants were members, an employee of the respondent had advised those present, that there was land available for leasing in the area. Subsequently, Waisake Naiduki, another employee of the respondent, had told the second appellant, that upon payment of a sum of $ 1500, the lease of that land could be obtained. The statement of claim proceeds to state that the appellants, relying on these representations, had planted 5 acres of the land with cassava. The land was leased to another person Pita Tamani, and the money was refunded to the appellants.
   

The respondent, in its statement of defence, denied the claim and stated that the payment of the application fee does not guarantee the grant of a lease. Waisake Naiduki, testified that his office had withdrawn the offer letter issued to the appellants, since the appellants had not complied with the terms of the offer letter. The offer letter stipulated that a sum of $ 3696.19 was required to be paid within 6 weeks. The offer letter issued to Pita Tamani, was also withdrawn.

The Learned Magistrate dismissed the appellant's claim. It was held that the announcement at the village meeting could not be considered as an offer. The payment of $ 1500 by the appellants was a processing fee and could not be construed as acceptance of an offer.
It was held further that a conditional offer was made to the appellants to pay a sum of $ 3,696.16 within 6 weeks. This had lapsed, as the full amount was not paid within the stipulated period.

4. The determination
   

The first, second, third and fifth grounds

The central issue in this appeal, as set out in the first, second and third grounds of appeal, is whether the offer made by the respondent to the first appellants, constitutes a binding contract for the grant of the lease by the respondent, the statutory trustee of iTaukei land under the iTaukei Land Trust Act(cap 134), to the appellants.

In my judgment, the Learned Magistrate has correctly held in the first instance, that the announcement by Waisake Naiduki, the employee of the respondent at a village meeting that the land was available for lease, does not constitute an offer. The judgement of the lower court referred to the case of Ram v Native Land Trust Board, Civil Action No: HBC 184 of 2008L), which cited Harvey v Facey,(1893) AC 552 that "negotiations leading up to the agreement may not necessarily amount to an "offer" but merely an "invitation to treat"."The ratio decidendi in Ram v Native Land Trust Board, (supra) has in my view, been correctly applied.

The Learned Magistrate then, referred to the offer letter dated 25th September, 2009, produced by the appellant. The heading of that exhibit reads as "SUBJECT TO CONTRACT-Lease Contract" and requested them to pay $ 3,696.16, in order to execute the contract. The offer letter concluded stating the offer was valid for six weeks. The Learned Magistrate found that the appellants were required to comply with this express condition by the payment of the sum of $ 3,696.16 within 6 weeks from the date of the offer, in this conditional offer. It was thus quite correctly concluded that since the appellants had failed to settle this amount within the period stipulated, the offer lapsed or was effectively revoked. In my judgment, the Learned Magistrate correctly held that there was no breach of contract by the respondent.

The third ground

I do not find that the Learned Magistrate made the finding referred to, in the third ground of appeal, advanced by the appellants.

The final ground

I find nothing to comment on as regards the final ground of appeal, which urges that the costs awarded by the lower court of $ 2500 was excessive. It suffices to refer to Or XXX111 r 2,as cited by the appellants, in their written submissions filed in this Court, which provides that all questions relating to costs shall be summarily determined, unless specifically referred for taxation.

In my judgment, there is no merit in this appeal. I reject all the grounds of appeal and dismiss the appeal with costs summarily assessed in a sum of $ 2000 payable by the first and second appellants to the respondent.

A.L.B.Brito-Mutunayagam
Judge

17 January, 2013