Naborisi v Native Lands Commission [2013] FJHC 360; Civil Action 076.2006 (26 July 2013)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

Civil Action HBC No. 076 of 2006

BETWEEN:

EPINERI NABORISI
PLAINTIFF

AND:

THE NATIVE LANDS COMMISSION
FIRST DEFENDANT

AND:

THE NATIVE RESERVES COMMISSION
SECOND DEFENDANT

BEFORE: Hon. Justice Kamal Kumar

COUNSEL: Mr Nawaikula for the Plaintiff

Mr J. Mainavolau for the Defendant

DATE OF JUDGMENT : 26 July 2013

JUDGMENT

1.0 INTRODUCTION

1.1 On 8 December 2006 Plaintiff filed Originating Summons seeking following declaration and order against the First Defendant:

"1. A Declaration that the deletion of Luke Waidolailagi and his heirs by the Native Lands Commission from the VKB pertaining to Tokatoka Nacuruvono No. 2, Mataqali Valeni was wrong and unlawful and contrary to

2. An Order directing the Native Lands Commission to restore the name of Luke Waidolailagi and his heirs to their rightful Tokatoka Nacuruvono No. 2 Mataqali Valeni.

UPON the grounds stated in the Affidavit of Epineri Naborisi the Plaintiff sworn on 16 November 2006.

1.2 On 7 May 2008 leave was granted to join Native Land Reserve Commissioner as Second Defendant.

1.3 Following Affidavits were filed by the parties:

For Plaintiff

(a) Affidavit of Epineri Naborisi sworn on 10 November 2006 and filed on 11 December 2006.

(b) Further Affidavit of Epineri Naborisi sworn and filed on 12 November 2007.

(c) Affidavit of Epineri Naborisi sworn on 6 May 2009 and filed on 14 May 2009.

(d) Affidavit of Ratu Kinijoji Maivalili in support of the Plaintiff filed on 14 October 2009.

(e) Answering Affidavit on Ilaitia Buadromo for First Defendant.

For First Defendant

(f) Affidavit of Ilaitia Buadromo sworn on 13 June 2007 and filed on 14 June 2007.

(g) Supplementary Affidavit of Ilaitia Buadromo sworn on 11 May 2010 and filed on 21 May 2010.

For Second Defendant

(h) Affidavit of Mosese Ratubalavu, Acting Reserve Commissioner sworn on 18 December 2008 and filed on 29 January 2009.

1.4 On 16 April 2010 parties agreed for Judgement be delivered on basis of Affidavits and Submissions already filed and to be filed in this matter.

1.5 Further Affidavits and Submissions being filed on or about 11 November 2011 this matter was referred to his lordship Justice Hettiararchchi (as then he was) to deliver the judgement.

1.6 Judgement not being delivered I caused this matter to be called on 14 June 2013 where Counsel for the parties agreed for judgment to be delivered by me on the basis of Affidavits and Submissions filed.

1.7 On 14 June 2013 I pointed out to the both Counsel that paragraph 1 of the Originating Summons is incomplete as it does not state what the deletion of names was contrary to.

1.8 Counsel for the Plaintiff, Mr. Nawaikula then sought leave to amend paragraph 1 of the Originating Summon by addition of the word "custom, usage and tradition" which leave was granted with consent of the Counsel for the Defendants.

2.0 PLAINTIFF'S CASE

2.1 Plaintiff's claim is that deletion of his name together with names of Luke Waidoloilagi, Laisani Moceisawana and Saukelo Lolou from Mataqali Valeni Tokatoka Nacuruvono in 1988 was wrong and unlawful and contrary to custom, usage and tradition.

2.2 As such Plaintiff seeks restoration of his and abovenamed persons name in the said Tokatoka Nacuruvono No. 2 Mataqali Valeni.

2.3 Plaintiff alleges that in 1988 Native Lands Commission simply called a meeting to advise that the name of the Plaintiff and the abovenamed persons will be deleted from Mataqali Valeni Tokatoka Nacuruvono No. 2 and transferred to another land owning unit.

2.4 He further alleges that the meeting to inform the Plaintiff and abovenamed persons of deletion of their names was without notice and only Luke Waidoloilagi and Laisani Moceisawana were summoned to the meeting and advised of what would happen.

2.5 First Defendant through the Affidavit of Ilaitia Buadromo sworn on 13 June 2007 stated that Plaintiff and abovenamed persons names were deleted from Mataqali Valeni because of the fact that Mataqali Valeni after an enquiry was declared extinct in 1962 and that Plaintiff and abovenamed persons names were recorded in this Mataqali well after this Mataqali was declared extinct.

2.6 Mr Buadromo in his said Affidavit further stated that the Plaintiff and abovenamed persons names were deleted after complaint was received from Mataqali Vunimoli and after a meeting was held to determine the dispute.

2.7 At this point it is to be noted that at paragraph 8 and 9 of the Plaintiff's Affidavit sworn on 10 November 2006 in support of the Originating Summons he state as follows:-

"8. THAT those present on that day were only two of our members namely Luke Waidiloilagi and Laisani Moceisawani. The meeting was called without notice and the two members of our unit Luke Wainidiloilagi and Laisani Moceisawani were summoned to the meeting and advised of what would happen.

9. THAT at the meeting they were told simply that their names would be deleted from Tokatoka Nacuruvono no. 2. This was done unilaterally and without their views been obtained."

2.8 In response to Supplementary Affidavit of Ilaitia Buadromo sworn on 11 May 2010 in particular to Annexure A (Ruling of Native Lands Commission) and Annexure B (letter dated 2 December 1996 from First Defendant to Plaintiffs then Solicitors) Plaintiff at paragraph 7 & 8 of his Answering Affidavit sworn on 20 January 2011 states:-

"7. THAT in this case I maintain that I together with my sister Lolou, and my mother Laisani Moceisawana and my grandfather Luke Waidololagi are members of Tokatoka Nacuruvono No. 2 NOT WITHSTANDING THE DOCUMENTS ANNEXED by the defendant in its affidavit filed on 21st May, 2008. That I annexed here marked "EN 1" a true copy certificate extracted from the offices of the 2nd Defendant dated 19 November, 2010 confirming that Luke Waidololagi born on 1908 is a member of Tokatoka Nacurovono Tokatoka entry No: 4-2 of Mataqali Valeni, Yavusa Tubulevu in the Tikina of Wailevu west who is the son of Mere Lalavanua on the same Tokatoka. (emphasis added)

8. THAT I and my mother and my sister are descendants of Luke Waidololagi and accordingly we are members of the same Tokatoka Nacuruvono, Mataqali Valeni of Yavusa Tubulevu."

2.9 However in his Affidavit sworn on 16 November 2006 at paragraph 9 he state that "at the meeting they were told simply that their names would be deleted from Tokatoka Nacuruvono no. 2. This was done unilaterally and without their views been obtained.

2.10 The extinction of Mataqali Valeni is confirmed by Mr Mosese Ratubalavu the Acting Reserves Commissioner in his Affidavit sworn on 18 December 2008.

2.11 Mr Ratubalavu also states that Native Reserves Commission has no record of the declaration and publishing of the extinction of Mataqali Valeni as required under Section 19(3) of Native Lands Trust Act Cap 134.

2.12 At this point I must note with concern the failure by the First Defendant to have the annexure in the Supplementary Affidavit of Ilaitia Buadromo translated in English language.

2.13 The Defendants wee parties to various proceedings where correspondence and minutes in iTaukei language was translated in English language.

2.14 It is apparent and fundamental to justice of case that all correspondence and minute submitted to in any vernacular be translated in English by persons fully conversant with such vernacular and dialect.

2.15 I caused the annexure to Mr. Buadromo's Supplementary Affidavit translated by Mr. Serupepeli Rokovoli, Senior Court Officer, Small Claims Tribunal of Labasa, and even though I finding on the issue of enquiry for reasons stated in this Judgment, it appears that an enquiry was held and parties and/or their representatives were given an opportunity to be heard before the names were deleted as aforesaid. I must make it clear that this my observation only and not a finding.

3.0 PLAINTIFF'S CASE

3.1 Plaintiff claims that deletion of the names of Epineri Naborisi, Luke Waidololagi, Laisani Moceisawana and Saukelo Lolou from the Mataqali Valeni Tokatoka Nacuruvono was unlawful and contrary to custom usage and tradition.

3.2 Plaintiff relied on the following cases in support of his case:

(i) Mabo v Queensland No. 2[1992] HCA 23; , (1992) 175 CLR 1

(ii) Nima Rasewai v Attorney General of Fiji and Native Lands & Fisheries Commission & Ors, CA No. 166A of 2003(15 July 2005)

(iii) Timoci Ramokosoi & Ors v Native Lands Commission, HBC 299J of 2000S (15 June 2007)

(iv) Jonetani Kaukimoce v Native Lands Commission, CA No. HBC 383 of 2006 (2 may 2008)

3.3 The decision in Mabo even though relevant to establish what constitutes custom, usage and traditions under common law is not of much relevance to the issues in present case for simple reason that before Mabo was decided Australia was considered as "terra nullius" whereas no such doctrine was applied to Fiji and Fiji has entrenched legislation recognising the concept of land and resource ownership through custom, usage and tradition through Native Lands Commission (now iTaukei Lands Commission) from around 1880.

3.4 The case of Rasewai, Ramokosoi and Kaukimoce dealt with issues relating to native land and Native Lands Register (Vola Ni Kawa Bula – "VKB") filed by way of Originating Summons.

3.5 All the cases in paragraph 3.2 (ii), (iii) and (iv) dealt with issues raised therein as if the relief sought were private law remedies.

4.0 DEFENDANT'S CASE

4.1 Both Defendants case is that in 1962 Mataqali Valeni was declared extinct and Plaintiff and persons named in part 2.1 hereof were registered in Mataqali Valeni after the said mataqali was declared extinct. As a result the First Defendant in exercise of the powers confirmed on the First Defendant under Section10 (2) of iTaukei Lands Act (previously Native Lands Act) corrected the error by deleting their names.

4.2 Both the Defendants could not provide copy of Gazette or newspaper in Fijian language in respect to Notice of Continuation of Mataqali Valeni or the date on which the extinction of Mataqali Valeni was published as required by s 19 (3) of iTaukei Land Trust Act Cap 134.

4.3 As stated above I also do not wish to dwell with the effect of non-publication of the notice of extinction of Mataqali Valeni for reasons stated in this Judgment.

4.4 First Defendant, in its submission raises the following issues:-

(i) Plaintiff should have appealed the decision by the First Defendant to Native Lands Tribunal as provided for in s7 of iTaukei Lands Act; and

(ii) Plaintiff's claim is out of time, procedurally wrong, baseless, frivolous, vexatious and irrelevant. (emphasis added)

5.0 PRELIMINARY ISSUE

5.1 Before I deal with the issues raised by the parties, I wish to highlight the failure by the parties and legal practitioners to comply with Order 41 Rule 9(2) of High Court Rules in relation to Affidavits.

5.2 Order 41 Rule 9(2) provides:-

"Every Affidavit must be endorsed with a note showing on whose behalf it is filed and the date of swearing and file and an Affidavit which is not so indorsed may not be filed or used without the leave of the Court."

5.3 In the matter of Kim Industries Ltd. (Unreported) Lautoka High Court Winding – Up Action No. HBF0036 of 1999L, his Lordship Justice Gates (as then he was), the Current Chief Justice stated as follows:

"If any Affidavit bears an irregularity in its form such as the Omission of the indorsement note, leave must be obtained from the Court for it to be filed or used..." (page 3)

5.4 Similar comments were made by his Lordship in State v H.E. The President & Ors. (unreported) Lautoka High Court Judicial Review No. HBJ007/2000L 12 October 2000. Chandrika Prasad v Republic of Fiji (unreported) Lautoka High Court Action No. HBC0217/2000L [Ruling on Stay Application – 20 December 2000, Ruling on Joinder Application – 17 January 2001].

5.5 In Jokapeci Koroi & Ors. v Commissioner of Inland Revenue & Anor. (unreported) Lautoka High Court Action No. HBC179 / 2001L (24 August 2001) his Lordship Justice Gates (as then he was) and Current Chief Justice removed two (2) Affidavits filed on behalf of the Defendants from the Court file for failure to comply with the order 41 Rule 9 (2) and ordered the Defendants file the said Affidavit with indorsement in compliance with Order 41 Rule 9(2) within 14 days. His Lordship at page 4 of the Judgement stated as follows:

"These mistakes are of little consequence to the actual litigation but since the setting of the format of an Affidavit, vehicle for the presentation of sufficient evidence to the Court, is a relatively simple exercise, these errors should no longer persist."

5.6 In this matter except for Affidavit in Reply of Ilaitia Buadromo sworn on 13 June 2007, no other Affidavits filed by the Plaintiff and both Defendants comply with Order 41 Rule 9(2).

5.7 No leave has been sought by Counsel for the parties to use the Affidavits which did not comply with the above rule in this proceeding.

5.8 With much reluctance and in view of the delay caused in the delivery of the judgment, I grant leave for the parties to use the Affidavits filed in non-compliance with provision of Order 41 Rule 9(2) of High Court Rules 1988.

6.0 WHETHER PLAINTIFF SHOULD HAVE APPEALED THE DECISION TO NATIVE LANDS TRIBUNAL

6.1 Section 6(1) of iTaukei Land Act provides:

"The Commission shall institute inquiries into the title to all lands claimed by mataqali or other divisions or subdivisions of the people and shall describe in writing the boundaries and situation of such lands together with the names of the members of the respective communities claiming to be owners thereof."

6.2 Section 6(5) provides:-

"If there is a dispute as to the ownership of any lands marked out and defined as aforesaid the Commission shall inquire into it and, after hearing evidence and the parties to the dispute, decide the question of ownership and record its decisions:

Provided that if the parties to the dispute agree in writing in the presence of the chairman of the Commission to a compromise the Commission shall record the boundaries of the lands and the names of the owners in accordance with such compromise."

6.3 It has been stated by judicial pronouncements that iTaukei define themselves to the land by being members of propriety units known as mataqalis. The only reason there is a requirement that native Fijian- (iTaukei) get themselves registered in the Vola ni Kawa Bula is for them to own land as a member of a mataqali. Mataqali is of course further divided into tokatokas.

6.4 Therefore a dispute in respect to registration of the names in the Vola ni Kawa Bula under a mataqali is a dispute to the ownership and occupation of the land in question and falls within the ambit of sections 6 (1) and 6 (5) of the iTaukei Lands Act.

6.5 Section 7 of iTaukei Land Act provides:

7.-(1) "There is hereby constituted an Appeals Tribunal consisting of a chairman and two other members all to be appointed by the Minister. It shall be the duty of the Appeals Tribunal to hear and determine appeals from decisions of the Commission under section 6 and from a commissioner under section 16, and any such determination by the Appeals Tribunal shall be final.

(2) Any person aggrieved by any such decision of the Commission or of a commissioner shall within ninety days of the announcement thereof give notice of his desire to appeal, which shall be signed by the appellant or his duly authorised agent, to the Commission. The notice shall contain the grounds of appeal."

6.6 The Commission deleted the names of the persons named in paragraph 2.1 hereof after it held an enquiry to deal with complaint of Mataqali Vunimoli in respect to registration of those names in Mataqali Valeni when Mataqali Valeni was declared extinct.

6.7 Therefore I am of the view that the Plaintiff should have lodged his appeal with the Appeals Tribunal within the prescribed time under section 7 of the iTaukei Lands Act.

6.8 It is well established that it is the Native Lands Commission and the Appeals Tribunal who are better equipped and versed with the notion of native custom and tradition, and is the proper forum to decide such issues within the ambit of statutory provisions, procedural fairness and natural justice.

7.0 WHETHER PLAINTIFFS REMEDY IS IN PRIVATE LAW OR PUBLIC LAW (i.e SEEKING REMEDY BY WAY OF ORIGINATING SUMMONS IS PROCEDURALLY WRONG)

7.1 If it is determined that Plaintiff's remedy is in Private law then Plaintiff's declaration will be dealt with by way of Originating Summons filed herein.

7.2 If, however, Plaintiff's remedy is in Public Law then Plaintiff instead of filing Originating Summons, should have moved the court for Judicial Review of First Defendant's decision pursuant to Order 53 of High Court Rules 1988.

7.3 Plaintiff relied on cases mentioned in paragraph 3.2 (ii), (iii) and (iv) hereof.

7.4 In Rasewai's case the Plaintiff by way of Originating Summons challenged the Commission's decision to revert the land of Nabouwalu to Yavusa Daviko instead of Yavusa Natukuta upon the death of Adi Arieta Kabukeivuya. In this case the Court directed Native Lands Commission to conduct an enquiry within the provision of iTaukei Land Act as it was the proper body to determine such issue.

7.5 In Timoci Ramokosoi's case Plaintiffs challenged deletion of their registration as native Fijians from Vola ni Kawa Bula ("VKB") of Mataqali Raranaduru, Yavusa Nailagolaba.

7.6 His Lordship Justice Jitoko (as then he was) held that since the deletion of names in the VKB affected individuals private rights the Plaintiffs were entitled to commence proceedings by way of Originating Summons.

7.7 In Jonetani Kaumimoce v Native Lands Commission Civil Action No. HBC 383/06 (2 May 2008) the Plaintiff sought following declarations from Court:-

"1. A DECLARATION that Native Land Registrar pertaining to the various land owning units now residing at Qalikarua Village noting them as members of Yavusa Qalikarua with the sub-units (Mataqali) consisting of Mataqalis Narocake, Nadurubau, Toka, Levukana and Nasau is wrong, erroneous and contrary to customs and tradition.

2. A DECLARATION that the proper and correct description is Yavusa Muairewa consisting of Mataqalis Navau, Nadurubau, Toka, Levukana and Nasau with Mataqali Narocake as the dependent unit.

3. AN ORDER under Section 10(1) of the Native Land Act directing the Defendant to amend its register and insert the correct description herein."

7.8 Once again his lordship Justice Jitoko (as then he was) dealt with the relief sought as private law remedy and granted the relief sought by the Plaintiff.

7.9 At this point in time I would like to highlight the following:-

(i) Jonetani Kaukimoce's case was subject to an appeal to Fiji Court of Appeal;

(ii) On 21 March 2012, Fiji Court of Appeal overturned the decision of the High Court;

(iii) On 14th June 2013 I caused this matter to be called to obtain parties confirmation for me to write the Judgment;

(iv) Both Counsels for the Plaintiff and Defendant did not have any objection for me to write the Judgment on basis of Affidavits and Submissions filed.

7.10 I note that the Counsel for the Plaintiff who was also Counsel for Mr Kaukimoce in the High Court and the Fiji Court of Appeal did not bring to Court's attention the fact that Jonetani Kaukimoce's case that was relied by Plaintiff in his submission has been subject to Appeal to Fiji Court of Appeal.

7.11 Legal Practitioners and a practitioner as senior as Plaintiff's Counsel ought to know that they are officers of the Court and as much as they owe a duty to their client they also owe a duty to Court (higher than that owed to a client) to disclose all material facts to the court to assist the Court in doing justice between the litigants.

7.12 In particular where a legal practitioner has referred a case in his/her client's submissions then the practitioner is duty bound to bring to the attention of the Court if any such decision is on appeal to Superior Court and if so, the status of the appeal.

7.13 In this instance the counsel for the Plaintiff failed to draw Court's attention to the decision of the Fiji Court of Appeal in Jonetani Kaukimoce's case in blatant disregard to his duty to the Court.

7.14 For the sake of clarity and convenience I will adopt and set out certain section of his Lordship Justice Calanchini the Acting President's decision in Jonetani Kaukimoce dealing with the issue as to whether dispute subject to s10 of iTaukei Land Act is subject to public law or private law. His lordship in his decision stated as follows:-

"35. This issue was not considered by the learned judge in the instant proceedings. However in Timoci Ramokosoi and Others –v- Native Lands Commission (unreported civil action No. 299J of 2000 delivered 15 June 2007), the same Judge had stated at page 6:

"Where there are issues both involving public law as well as private law rights then in my view the Plaintiff is at liberty to choose his forum. In this case, clearly, there is a challenge to the exercise by a public body of violating a principle of public law, namely, the right to be heard amounting to denial of natural justice. On the other hand there is allegation of violation by the public body of private law namely the right of the First Plaintiff's name to be entered in his mother's Yavusa and upon which the Plaintiffs are seeking certain declarations on such right and an order to prevent the Defendant from interfering with those rights. Under the circumstances the Plaintiffs, in my view, are entitled to using this action other than by judicial review."

36. However, in my judgment, the more appropriate test to be applied was discussed by the Court of Appeal in R –v- Panel on Take-overs and Meigers ex parte Datajin plc and Another [1986] EWCA Civ 8; [1987] 1 All ER 564. The headnote to that decision stated:

"In determining whether the decisions of a particular body (or person) were subject to judicial review, the court was not confined to considering the source of that body's (or person's) powers and duties but could also look to their nature. Accordingly, if the duty imposed on a body (or person), whether expressly or by implication, was a public duty and the body was exercising public law functions the court had jurisdiction to entertain an application for judicial review of that body's decisions."

37. In the present appeal the Appellant, the Commission, has been established by legislation. It has a number of expressly stated functions to perform under that legislation. One of those functions is to record the names of the members of land-owning or proprietary units. A further function is expressly stated that upon a finding of an error the Chairman of that statutory body may direct the Registrar of Titles to correct the error. To be correctly recorded in the Register (in this case in the VKB) is to become a member of proprietary unit and hence to acquire a beneficial interest in the native land held by the proprietary unit. Although there is indeed a private law element in respect of a claim to a beneficial interest in property under the Act, whether or not that right is acquired is dependent upon (1) the Commission performing its function under section 9 and (2) correcting any error under section 10(2). In my judgment both a public law functions being performed by a statutory body created by legislation. Since the decision of the House of Lords in O'Reilly –v- Mackman [1983] UKHL 1; [1983] 2 AC 237 there is no longer any requirement to establish that the statutory body was under a requirement to act judicially in order to invoke the public law procedure of judicial review and to seek the remedies available under the procedure.

38. When a decision is taken or made by a person designated by a statutory provision to perform a statutory function the High Court has a supervisory jurisdiction to ensure that the decision maker has not exceeded or abused his powers and that he has performed his duties. This supervisory jurisdiction over public bodies is by way of judicial review. An application for judicial review is made pursuant to the procedures set out in Order 53 of the High Court Rules. On the other hand where the High Court is required to make an initial decision affecting the private rights of individuals by way of declaration or order not involving a public law element (i.e. a public body performing a public law function) the proceedings are commenced by either writ or originating summons. The decision in O'Reilly v Mackman (supra) is authority for the proposition that it is an abuse of the process of the Court to seek a declaration from the Court in its original jurisdiction in a public law case where the claim should proceed by way of judicial review under Order 53.

39. Order 53 Rule 1 provides that an application for an order of mandamus, prohibition or certiorari shall be made by way of an application for judicial review in accordance with the provisions of this Order. The Court also has jurisdiction to grant a declaration or an injunction in appropriate cases (emphasis added).

40. In the present case the Respondent deposed in his affidavit that numerous requests had been made for the alleged error or errors to be corrected. It is stated in the affidavit that the Appellant claimed that there was no jurisdiction to correct such an error. It would appear that the Respondent might have been in a position to pursue an application under Order 53. However the affidavit also stated that the last request was made in 2004. As a result any application for judicial review would at some stage have been met with the objection of substantial delay. However there does not appear to be any impediment to the Respondent making a further formal application to the Chairman. The procedure under Order 53 may then be utilised in the event that the Appellant has refused to exercise his statutory function. Furthermore, any decision made by the Chairman may be amenable to challenge under Order 53.

41. The consequences for utilising the incorrect procedure for obtaining a public law remedy was clearly stated by Lord Diplock in O'Reilly v Mackman [1983] UKHL 1; [1982] 3 All ER 1124 at page 1133:

"So Order 53 _ _ _ has provided a procedure by which every type of remedy for infringement of the rights of individuals that are entitled to protection in public law can be obtained in one and the same proceeding by way of an application for judicial review, and whatever remedy is found to be the most appropriate in the light of what has emerged on the hearing of the application can be granted to him. If what should emerge is that his complaint is not of an infringement of any of his rights that are entitled to protection in public law, but may be an infringement of his rights in private law and thus not a proper subject for judicial review, the court has power under rule 9(5), instead of refusing the application, to order the proceedings to continue as if they begun by writ. There is no such converse powers under the Rules _ _ _ to permit an action begun by writ (or originating summons) to continue as if it was an application for judicial review."

42. Order 53 Rule 9(5) of the Rules of the High Court makes similar provision in the following terms:

"Where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ by the application at the time of making his application, the Court may, instead of refusing the application, order the proceedings to continue as if they begun by writ _ _ _."

7.15 Accordingly I hold that the Plaintiff's action lies in public law and commencement of proceeding by Originating Summons is procedurally wrong and this Court does not have jurisdiction to deal with the Originating Summons or convert this action to Judicial Review proceedings.

7.16 On the issue of costs I take into account that First Defendant has filed two Affidavit of 1½ and 1 page each and filed submission with no cas e authorities and the Second Defendant filed only one Affidavit (1½ pages).

8.0 CONCLUSION

8.1 I make the following orders:-

(i) Originating Summons filed on 8 December 2006 as amended on 14 June 2013 is dismissed and struck out.

(ii) Plaintiff is to pay First Defendant's cost in the sum of $750.00.

(iii) Plaintiff is to pay Second Defendant's costs in the sum of $250.00.

KAMAL KUMAR
JUDGE

Date