Rasoki v Native Reserve Commission [2013] FJHC 48; Civil Action 107.2009 (15 February 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: 107 of 2009.

BETWEEN:

ATUNAISA LACABUKA RASOKI
PLAINTIFF

AND:

ATTORNEY GENERAL OF FIJI
MINISTER FOR LANDS AND DIRECTOR OF LANDS
REGISTRAR OF TITLES
PROVINCIAL ADMINISTRATOR – SERUA AND NAVUA
STATION OFFICER – NAVUA/ DEUBA POLICE POSTS
COMMISSIONER OF PRISONS (All struck off)
1ST DEFENDANTS

AND:

NATIVE RESERVE COMMISSION
NATIVE LAND TRUST BORAD (struck off)
FIJI MUSEUM (struck off)
2ND DEFENDANTS

AND:

ALESI TEMO
3RD DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Plaintiff appearing in person
Ms. Macedru L. G. for the 1st named 2nd Defendant

Date of Hearing : 28th July, 2011
Date of Decision : 15th February, 2013

DECISION

1. INTRODUCTION\
   

1. Plaintiff filed originating summons against 1st Defendant comprising of number of government entities including Attorney General and 2nd Defendant comprised of Native Reserve Commission, Native Land Trust Board and Fiji Museum. Justice Calanchini (as his lordship then was) struck off all the parties named as the 1st Defendant and 2nd and 3rd named parties of 2nd Defendant upon applications made by the respective parties. The 1st named 2nd Defendant is presently making the summons for the first time seeking strike out the 1st named 2nd Defendant.
   

2. ANALYSIS
   

2. The originating summons filed by the Plaintiff is incomprehensible and it also deals with the land which was a subject matter of another action where the Plaintiff has filed writ of summons. Justice Calanchini (as his lordship then was) on two previous instances in this action struck off all the parties named as 1st Defendant and two out of three parties named as 2nd Defendant in two separate decisions. In his lordship's decision of Rasoki v Attorney-General of Fiji [2010] FJHC 266; HBC107.2009 (12 February 2010) described the Plaintiff's originating summons as 'difficult to determine'. I cannot do better than quoting from his lordship's decision delivered on 12th February, 2010 which stated as follows
   

'Even after a careful reading of the Plaintiff's Originating Summons, it is difficult to determine the nature of the relief sought by the Plaintiff. However on the front page of the document the following appears:

"... the Plaintiff claims against the defendants (or seeks the determination of the Court on the following questions, namely (1) New Grave Committee (or as may be) be dissolved (2) return state lands and graves (3) Contempt of Court (4) Joinder of Party."

In paragraph 32 of his affidavit in support the Plaintiff sets out in more detail an explanation for the relief that he claims:

"I brought this action in support to case 380/04 Writ of Summons applications and in support to Case 121/2000 by applicant's legal counsel showing proofs of frauds and illegal conversions of all Pacific Harbour Lands; for a Vesting and Caveat Order to the Grave Yards States Land; For return of all states reserves at Pacific Harbour taken by illegal transfers; And return Makosoi Estate Housing Authority Lands purchased by States; for Titles be registered back to Plaintiffs and applicant in this matter; to stop future disputes on Pacific Harbour ancestral lands; ...."

It would appear that relief (2) is of some relevance to the second proviso in section 15 of the State Proceedings Act.

The Originating Summons also sets out a number of matters which are probably intended to particularize the four claims that constitute the relief sought by the Plaintiff. Paragraphs 7 and 12 appear to be the particulars of the relief sought under relief (2).

Without going into the details of those two paragraphs, it is sufficient to state that to the extent that the relief sought by the Plaintiff against the State (the First Defendants) is for the Court to make orders for the return of the lands claimed, it is prevented from doing so by virtue of section 15 of the State Proceedings Act. Furthermore, if the court were to make a declaration concerning ownership of the lands in question, then I am satisfied that the Court would be determining the same issues that are currently before the Court in action No. 121 of 2000."

3. In paragraphs 11, 12 and 23 of the affidavit in support of the originating summons, the 1st named 2nd Defendant was mentioned but the Plaintiff did not mention any probable cause of action or relief against the 1st named 2nd Defendant, the Plaintiff in paragraphs 11,12 and 23 states as follows
   

'11. All Pacific Harbour lands including ancestral graveyard lands at the Vunimoli Yavutu near Tokatoka Naduri land sites were sworn on oaths under Native Reserve Commission sitting sat(sic) at sadro village by Plaintiff but no objections or any dispute arises from the Tikina Deuba meeting that's arranged by the veitarogi vanua at the time.

12. Our chief Ratu Tevita Mara and all chiefs supports and agree with the Mataqali Vunimoli in that NRC or NLC sworn on oath sittings.

23. The Plaintiff's Native Reserve Commission was held at Deuba village on the 28th of April, 1999 that inquired into reserve extinct mataqali lands under section 18 and 19 of the Native Land Trust Acts (sic) cap 134 and Mataqali Vunimoli made a submission on oaths to all Pacific Harbour lands and yarawa East and west for return as Native Reserves extinct (sic) mataqali lands'

4. Since there is no specific remedy against the 1st named 2nd Defendant, it can be assumed that 1st named 2nd Defendant was made a party because of the averments contained in paragraphs 11, 12 and 23 which does not constitute a cause of action. Part iii of the Native Trust Act contained provisions regarding Native Reserve and sate as follows
   

PART III-NATIVE RESERVES

Native reserves

15.-(1) It shall be lawful for the Board, by notice in the Gazette, to set aside any portion of native land as a native reserve.

(2) Every such notice in the Gazette shall also be published in a newspaper published in the Fijian language and circulating in Fiji. (Substituted by Ordinance 19 of 1968, s. 4; Subsec. (1) amended by Legal Notice 112 of 1970; Subsec. (2) amended by Act 1 of 1978, s. 2.)

Land in native reserve not to be alienated

16.-(1) Subject to the provisions of the Crown Acquisition of Lands Act, the Forest Act, the Petroleum (Exploration and Exploitation) Act, the Mining Act, and to the provisions of this section, no land in any native reserve shall be leased or otherwise disposed of. (Cap. 135, Cap. 150, Cap. 148, Cap. 146.)

(2) Leases or licences may with the consent of the native owners be granted by the Board to native Fijians in accordance with regulations made under section 33.

(3) Leases may with the consent of the Fijian owners be granted by the Board to the Land Development Authority as if it were a native Fijian, in accordance with the aforesaid regulations and subject to the following conditions:-

(a) no land leased under this subsection shall be transferred, sublet or in any other manner disposed of by the Land Development Authority except to a native Fijian;

(b) no lease shall be granted under the provisions of this subsection in respect of any land which is in use by, or required by, or likely to be required by the Fijian owners or any member of the land owning unit or dependant of such member during the currency of the lease for the use, maintenance or support of members of the land owning unit or to enable it or its members to fulfill obligations under native custom or under any regulations made under the Fijian Affairs Act; (Cap. 120.)

(c) whenever the consent of Fijian owners is necessary under this or any other section of this Act, such consent shall be obtained by the Board in such manner and after such consultation with the Fijian owners, and shall be signified by the Fijian owners in such manner, as may be prescribed by regulations made under section 33, or in default of any such regulations as the Board may consider appropriate. (Substituted by Ordinance 58 of 1962, s. 4.)

Exclusion of land from native reserve with consent of native owners

17.-(1) The Board may, upon good cause being shown and with the consent of the native owners of the land, exclude either permanently or for a specified period any portion of land from any native reserve. (Substituted by Ordinance 19 of 1968, s. 5.)

(2) Every such exclusion as aforesaid shall be published in the Gazette and in a newspaper published in the Fijian language and circulating in Fiji.(Substituted by Ordinance 19 of 1968, s. 5; amended by Act 1 of 1978, s. 2.)

(3) When any native land has been excluded from a native reserve for a specified period such land shall upon the expiration of such period resume the same character and incidents as were attached to it before its exclusion from the native reserve.

Power of Governor-General to set aside land as native reserve

18.-(1) If the Governor-General is satisfied that the land belonging to any mataqali is insufficient for the use, maintenance or support of its members it shall be lawful for the Governor-General by proclamation to set aside such Crown land, or land acquired for or on behalf of Fijians by purchase, as in his opinion may be required for the use, maintenance or support of such mataqali. Any area so set aside shall be deemed to be a native reserve. (Amended by Ordinance 29 of 1948, s. 4; Legal Notice 112 of 1970.)

(2) Any land set aside under the provisions of subsection (1) shall be fully described in the proclamation by stating the boundaries and area thereof and the name of the mataqali or other division or subdivision of the natives for whose use, maintenance or support such land is set aside, and such proclamation shall be published in the Gazette and in a newspaper published in the Fijian language and circulating in Fiji. (Amended by Act 1 of 1978, s. 2.)

5. Section 19 of the Native Trust Act deals with the Native Land Commission and there is no mentioning about a Native Reserve Commission, and states as follows
   

PART IV-MISCELLANEOUS

Crown ultimushaeres of extinct mataqali

19.-(1) If any mataqali shall cease to exist by the extinction of its members its land shall fall to the Crown as ultimushaeres to be allotted to the mataqali of which it was a part or other division of the people which may apply for the same or to be retained by the Crown or dealt with otherwise upon such terms as the Board may deem expedient.

(2) A report to the Board under the hand of the Chairman of the Native Lands Commission appointed under the Native Lands Act or of the Commissioner that a mataqali has ceased to exist by the extinction of its members and describing the lands which in consequence of such extinction fall to the Crown under subsection (1) shall be evidence that the mataqali is extinct.

(Cap. 133.)

(3) At any time after a report referred to in subsection (2) has been received the Board shall direct a notice in the form prescribed to be published in the Gazette and in a newspaper published in the Fijian language and circulating in Fiji, and a copy of such notice shall be sent as soon as possible by the Board through the Commissioner to the rokotui of the province in which any part of the land is situated. (Amended by Act 1 of 1978, ss. 2 and 3.)

(4) If any person desires to show that the mataqali has not ceased to exist by reason of the extinction of its members, he may, within three months of the date of publication of the notice in the Gazette and in a newspaper published in the Fijian language and circulating in Fiji, give notice of objection in writing to the Board setting out particulars of any members of the mataqali alleged to be still surviving. Upon receipt of such notice of objection the Board shall cause such investigation to be made as it may consider necessary. (Amended by Act 1 of 1978, s. 2.)

(5) If the Board after such investigation is of the opinion that the objection to declaring the mataqali extinct is not well founded, the Board shall cause the Commissioner to send notice by post to the person who has given notice of objection in writing and also to the rokotui of the province in which any part of the land is situated informing them that the objection is disallowed. (Amended by Act I of 1978, s. 3.)

(6) If no notice of objection as provided for in subsection (4) is received by the Board, or if such objection having been duly made is disallowed, the Board may make an order in the form prescribed and such order shall on presentation to the Registrar of Titles be filed by him and the land shall be deemed to be Crown land for all purposes.

6. The Law relating to establishment of the Native Reserve Commission as per paragraph 23 of the originating summons is contained in Section 18 and 19 of the Native Lands Trust Act. I have quoted the said sections 18 and 19 in full above, but was not able to find any reference to 'Native Reserve Commission'. The Plaintiff has not described the status of the 1st named 2nd Defendant in his originating summons. The Plaintiff failed to adhere to accepted rules of the pleadings and this has made this originating summons an incomprehensible document by which the process of the court is abused and parties named in the originating summons needed to file summons for strike out without filing affidavits in opposition to the originating summons. Order 18 Rule 18 (3) states:

"This rule shall, so far as applicable, apply to an originating summons ... as if the summons ... were a pleading" and rules regarding pleading is thus expressly made applicable in Order 18 rule 18(3) of the High Court Rules of 1988.

7. Order 7 rule 3 of the High Court Rules states as follows
   

'3(1) Every originating summons must include a statement of the questions on which the plaintiff seeks the determination or direction of the High Court or, as the case may be a concise statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause of causes of action in respect of which the plaintiff claims that relief or remedy'. (emphasis is added)

8. The clarity of the issues in originating summons is greater when compared with the provisions contained Order 18 rule 6 and, Order 18 rule 7, relating to pleadings since the originating summons require a party to include in the summons itself with sufficient particularity to identify the cause of action.
   
9. In Supreme Court Practice (1999) at page 314 under the heading 'Need for compliance' of Order 18 where it was stated as follows
   

'Need for compliance- These requirements should be strictly observed (per May L. J. in Lipkin Gorman v Karpnale Ltd [1989] 1 W.L.R 1340 at 1352). Pleadings play an essential part in civil actions, and their primary purpose is to define the issues and thereby to inform the parties in advance of the case which they have to meet, enabling them to take steps to deal within it, and such primary purpose remains and can still prove of vital importance, and therefore it is bad law and bad practice to shrug off a criticism as a "mere pleading point"(see per Lord Edmund Davis in Farrell v Secretary of state for Defence [1980] 1 W.L.R 172 at 180, [1980]1 All E.R. 166 at 173)'. (emphasis is added)

10. In Farrell v Secretary of State (Viscount Dilhorns) [1980] 1 All E.R 166 at 173 Lord Edmund –Davies held
    

'It has become fashionable in these days to attach decreasing importance to pleadings, and it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and, indeed, may on occasion have led to its being defeated. But pleadings continue to play an essential part in civil actions, and although there has been since the Civil Procedure Act 1833 a wide power to permit amendments, circumstances may arise when the grant of permission would work in justice or, at least, necessitate an adjournment which may prove particularly unfortunate in trials with a jury. To shrug off a criticism as 'a mere pleading point' is therefore bad law and bad practice. The purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take step to deal with it.'(emphasis is added).

11. The originating summons does not comply with the said rules and cannot be easily understood. The originating summons and the affidavit refer to all the Defendants and not specifically to 1st, 2nd and or 3rd Defendants and 1st Defendant comprised of several entities and 2nd Defendant also comprised of several parties, so it is not clear which allegation is made against whom and what is the relief Plaintiff is seeking against each party.
    
12. The relief sought by the Plaintiff is mainly revolves as regards to return of certain lands, which Justice Calanchini (as his lordship then was) decision dated 12th February 2010 has clearly held as not possible under Section 15 of the State Proceedings Act.
    
13. Justice Calanchini (as his lordship then was) in his decision dated 12th February, 2010 held
    

'The proceedings commenced by the Plaintiff against the First Defendants are subject to the State Proceedings Act Cap 24 and Order 77 of the High Court Rules. Section 15 of the State Proceedings Act sets out two provisos to the power of the Court to grant relief in proceedings by or against the State. They are first that the Court shall not grant an injunction or make an order for specific performance in any proceedings against the State. Instead, the Court may make an order declaring the rights of the parties.

Secondly, the Court shall not make an order for the recovery of land or other property in any proceedings against the State. Instead, the Court may make an order declaring that the Plaintiff is entitled as against the State to the land or property or to the possession thereof.'

14. In the circumstances it is futile to venture further in this application to strike out the 1st named 2nd Defendant from this proceedings for the reasons given in my decision as well as the two decisions of Justice Calanchini (as he then was). The Plaintiff has failed to establish the legal status of the 1st named 2nd Defendant and or the reason for addition of it. Though that should not be a ground for strike out, the Plaintiff failed to establish a cause of action against the 1st named 2nd Defendant and has also not sought any specific relief from the 1st named 2nd Defendant. Justice Calanchini has already struck off all the parties named as 1st Defendant and has also held that Plaintiff's main relief of reclaiming state land cannot succeed. His lordship has also held that there is no contempt as alleged in the originating summons and the claims contained in the originating summons have already been struck off. The only understandable relief that could have some connection with the 1st named 2nd Defendant, that was sought by the Plaintiff is the return of state lands which according to the decision of Justice Calanchini (as his lordship then was), not possible in this proceeding . The summons for strike out of 1st named 2nd Defendant is granted. I will not grant any cost.
    

100. FINAL ORDERS
     

1. The summons to strike out 1st named 2nd Defendant is granted.
2. No costs.
   

Dated at Suva this 15th day of February, 2013.

.................................................
Master Deepthi Amaratunga
High Court, Suva