Batiluva Beach Resort Ltd v iTaukei Land Trust Board [2015] FJHC 396; HBC224.2012 (28 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 224 OF 2012

BETWEEN:

BATILUVA BEACH RESORT LIMITED,
a limited liability company of Shashi Dutt & Associates, Level 1, Nina House, Robertson Road, Suva in the Republic of Fiji

Plaintiff

AND:

ITAUKEI LAND TRUST BOARD
a body corporate duly constituted under the Native Land Trust Act (Cap 134) whose registered office is at 431 Victoria Parade, Suva

Defendant

Appearance : Ms Lagilevu L, Counsel of Lagilevu Law for the Plaintiff

Ms Lusiana Komaitai, Counsel/Legal Officer for the Defendant

Date of Judgment : 28 May 2015

JUDGMENT

[1] The Defendant filed an application for Summons to Struck Out on 9th May 2013 under Order 18 Rule 18(1)(a)(b) and (d) to seek Orders that the Plaintiff's Claim be struck out on the following grounds:

(i) Discloses no reasonable cause of action;

(ii) That it is frivolous or vexatious; and

(iii) It is an abuse of the process of the court.

[2] Chronology of Events

2.1 On 15th August 2012, the Plaintiff filed and served the Defendant with a Writ of Summons, an Ex-Parte Notice of Motion and an Affidavit in Support of the Ex-Parte Notice of Motion.

2.2 On 18th October 2012, the High Court delivered the order that the Ex-parte Notice of Motion was dismissed as it had no grounds to issue restraining order and that the Writ of Summons could proceed with the file referred back to the Master for further steps. Also, the Plaintiff was ordered to pay costs summarily assessed at $1,000.00 to the Defendant. The Order was later filed by the Defendant on 25th October 2012.

2.3 On 14th December 2012, the Defendant filed and served a Summons to Strike out Application of the Plaintiff.

2.4 On 8th January 2013, the Plaintiff filed and served a Summons for Direction on the Defendant.

2.5 The matter was set down for hearing on 15th February 2013, where the Master was to hear applications made by both parties.

2.6 On 15 February 2013, the Master ordered that Summons to Strike Out was not served within time as it was only served the day before, so Summons to Strike Out was struck off. Also, there was no appearance for Summons for Directions and that Summons was struck off. The action was reinstated by consent of the parties by the Master and the Summons for Directions filed was stayed until determination of the application for strike out was being determined. Accordingly, Summons for Strike Out was filed on 9 May 2013.

2.7 On 19th August 2013, this matter was taken up by this court and the Plaintiff was not present and no appearance made on behalf of the Plaintiff. Name was called by the clerk. The Registry had informed parties this matter will be mentioned on 19 September 2013. Accordingly, this court made order to strike out the summons filed by the Plaintiff on 12 March 2013.

[3] 3.1 Thereafter, the Plaintiff filed Notice of Motion on 25 October 2013 to reinstate the matter to the cause list supported by the Affidavit sworn by Viliame Navoka, Legal Clerk of Lagilevu Law Solicitors for the Plaintiff dated 23 October 2013.

3.2 The Defendant by letter dated 9 October 2013 addressed to the Senior Court Officer, made a request to hear the summons to strike out filed on 9 May 2013. Notice of Motion filed on 23 October 2013 by the Plaintiff for reinstatement and the Defendant's summons to strike out was taken up for hearing.

3.3 At the hearing on 12 December 2013 and both counsel made submissions and filed written submissions in this matter.

[4] Analysis, Consideration and Determination

4.1 At the outset, I stated that the Plaintiff's action was struck off on 19 August 2013 and the Notice of Reinstatement shall depend upon the decision on the Defendant's application for strike out of this matter on the grounds:

(i) non disclosure of cause of action;

(ii) the action is frivolous vexatious; and

(iii) it is abuse of the process of the court.

4.2 The summons was filed by the Defendant under Order 18 Rule 18(1) (a), (b) and (d) of the High Court Rules 1988 which states:

"18 (1) The court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement that –

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly as the case may be.

[5] 5.1 The Defendant submitted that the Plaintiff had abused the process of the court when it had proceeded to file a new action against the Defendant when there was an existing case based on the similar set of facts which was struck out and the application for reinstatement has also been dismissed. The appeal made to the Court of Appeal and the said appeal was deemed abandoned due to non-prosecution. This was referred to in Solomoni Nata's Affidavit filed on 9 May 2013 (in the paragraphs 5 to 21) which divulged the two actions filed by the Plaintiff HBC No. 359 of 2003 and HBC No. 545 of 2004 were consolidated. In the case No. 359 of 2003, the Plaintiff's prayer states (SN 18 - the paragraph 38 of the Affidavit) states:

"1. An order that the Defendant issue a lease to the Plaintiff of the land known as Nukubalavu in the Tikina in the Province of Serua in terms of the Agreement to Lease made between the Plaintiff and the Defendant and dated the 14th day of November 1996".

5.2 Solomoni stated in the paragraphs 38 of the Affidavit (SN19) the same relief in the present action which states:

"An order that the Defendant issue a lease to the Plaintiff of the land known as Nukubalavu in the Tikina of Serua in the Province of Serua in terms of the Agreement Lease made between the Plaintiff and the Defendant and dated the 14th day of November 1996".

The Plaintiff's submission was that although the actions are similar but not the same as in the HBC No. 259 of 2003 and Civil Action No. 545 of 2004 were on the basis of allegation of breach of terms of the Lease Agreement on alleged breaches in 2003 whereas the current action is against the improperly and unfairly evicting the Plaintiff for breaches alleged to have been in existence in 2012. On perusal of the Statement of Claim SN 18 and SN19 it is evident that the claim is the same and both the claims are based on the breaches of Agreement for Native Lease No. 81877 dated 14 November 1996 (Part of SN6). I deny the submissions by the Plaintiff.

5.3 I further observe as stated in the paragraphs 27, 28 and 29 of the Affidavit in Support the breaches committed by the Plaintiff in 2003 and the two previous actions were filed by the Plaintiff when the Defendant took steps to safeguard their interest. The Plaintiff, in its submission in the paragraph 31 stated that in comparison of the breaches stated in the letter dated 27 January 2003 and the letter issued on 22 March 2012 reveal 5 new breaches. However, the Statement of Claim of the Plaintiff divulged the same breaches continuing. The substantive breach of the agreement was the Plaintiff's failure to complete the construction of the resort 4 years from 1996 as agreed. When the first 2 two actions were filed or even after filing this action to date the Plaintiff had not complied with the terms and still the construction is not completed and it is continuously in breach. This was the main condition breached on both instances on which the actions are being based and filed. I agree with the submission by the Defendant that after abandoning the Appeal No. ABU 58 of 2011, the Plaintiff had come to this court on the same cause of action on the same breaches by only asserting the breaches were for different periods. I deny the submission and state the breaches were still continuing and no merits in the submissions. I conclude that the Plaintiff had abused the process of this court, by re-litigation on the same matters without any basis.

5.4 I have also taken the following into consideration to determine this action:

(a) The Plaintiff had not remedied the breaches which are continuing from 2003;

(b) The causes of action of both the matters are the same and the Plaintiff failed to:

i) take due process in the Appeal on the High Court Order of the application for reinstatement in Action No. HBC 359 of 2003 and HBC No. 544 of 2004 which resulted abandonment of the Appeal and to bypass the failures of the Plaintiff, it had instituted this action on the same cause of action;

ii) in case of Naco & Another vs. Colonial Mutual Life Assurance Society Ltd and Another is applicable to the facts of this case which are similar [2004] FJHC 357; HBC 0413 (11 March 2004) cited the principle adopted in New Zealand case Reid vs. New Zealand Trothing Conference [1984] 1 NZLR 8 at page 9 – Richardson J. stated:

"Misuse of the judicial process tends to produce unfairness and to undermine confidence in the administration of justice. In a number of cases in recent years this Court has had occasion to consider the inherent jurisdiction of the High Court, and on appeal this Court, to take such steps as are considered necessary in a particular case to protect the processes of the court from abuse. (See particularly Moevao vs. Department of Labour [1980] 1 NZLR 464 and Taylor vs. Attorney General [1975] 2 NZLR 675). In exercising that jurisdiction the court is protecting its ability to function as a court of law in the future as in the case before it. The public interest in the due administration of justice necessarily extends to ensuring that the courts' process are fairly used and that they do not lend themselves to oppression and injustice. The justification for the extreme step of staying a prosecution or striking out a statement of claim is that the court is obliged to do so in order to prevent the abuse of its processes".

In this matter exactly the Plaintiff had attempted to oppress the justice and the court process was abused.

iii) in any case, to claim final relief multiple actions can be brought. However, the court cannot allow once the action is defeated on the same relief in another subsequent action on the same grounds and on the same cause of action. The Plaintiff in this case claimed the same relief as in the previous Action No. 359 of 2003. The same issue was dealt in case of Naco & Others vs. Colonial Mutual Life Assurance Ltd & Another and Winter J. had stated:

"Indeed in Civil Action No. 377 of 2000 an almost identical prayer of relief is sought. The issue presently before the court in this file is almost completely identical with the remedy sought in Civil Action No. 155 of 2003. A ruling is yet to be delivered on that matter. The same facts form the background to CA 273/2003. This was struck out. These proceedings are again of striking similarity to those before Scott J. in 63 of 1999. This action is still alive.

There is nothing to stop any citizen brining multiple proceedings one after the other. That right however, is subject to the court's discretional oversight to ensure its processes are not being abused. I find these proceedings vexatious and an abuse of process of the court. Mr Naco or his in-laws have not pursued appeal on other proceedings that were struck out. They have instituted a series of similar actions with similar ultimate goals. They have not finished prosecuting similar claims in related proceedings yet to be pursued".

iv) the only instance to allow new proceedings before the court on already adjudicated matter is if the Plaintiff can bring in special circumstances to the attention of the court. In this case, there are no special circumstances disclosed before this court; and the substance of both actions are same. The Plaintiff had not made any attempt to remedy the breaches.

v) I too agree with the Defendant's submissions although 2 Notices were served, one in 2003 and one in 2012, the Plaintiff had committed same breaches and the Plaintiff's present action is on the same basis like the previous Action Nos. 359 of 2003 and 545 of 2004. As such I hold in favour of the Defendant.

[6] Over and above all other matters by and large, the land owners are affected. By prolonging the remedial action by the Defendant and also by resorting to vexatious action, the land owners' financial returns are affected. As such the Plaintiff's action deprives the land owners rights for return. This right is guaranteed under the Section 29 of the Fiji Constitution; the Defendant should safeguard the rights and interest of the native landowners. Section 29 of the Constitution states:

"Protection of Ownership and Interests in Land

29 – (1) All ownership of land, and all rights and interests in land leases and land tenancies that existed immediately before the commencement of this Constitution shall continue to exist under this Constitution.

(2) No law shall be made to diminish or adversely affect the rights and interests in land leases and land tenancies, whether existing immediately before the commencement of this Constitution or made or issued after the commencement of this Constitution.

(3) All land lessees and land tenants have the right not to have their land leases or land tenancies terminated other than in accordance with their land leases or land tenancies.

(4) Parliament and Cabinet, through legislative and other measures, must ensure that all land leases and land tenancies provide a fair and equitable return to the landowners whilst protecting the rights of land lessees and land tenants, including security and protection of tenure of land leases and land tenancies and terms and conditions of land leases and land tenancies which must be just, fair and reasonable.

(5) All land that existed as freehold land immediately before the commencement of this Constitution shall remain as freehold land even if it is sold or purchased, unless it is sold to the State or is acquired by the State for a public purpose under Section 27.

(6) For the purposes of this Section –

"land leases" or "land tenancies" includes sub-leases, sub-tenancies and tenancies-at-will, but shall not include leases, agreements or tenancies for any building, structure or dwelling, whether used for residential, commercial, industrial or for tourism purposes, and shall not include any leases, agreements or tenancies for any fixture, equipment, plant or fittings on any land; and

"land lessees" or "land tenants" include sub-lessees, sub-tenants or tenants-at-will of land leases or land tenancies".

I specifically reiterate Section 29(4) the Constitution which ensures that all the land leases provide a fair and equitable return to the landowners whist protecting the rights of land lessees and tenants. In this matter the lessee was in continuous breach of the lease and it is not entitled for any redress under Section 29(4) of the Constitution.

In the present matter in addition the conclusions made, the court had considered the Second Schedule to the Agreement for lease where the Plaintiffs have breached the completion of the construction which had affected the land owners to get their fair and equitable return. The agreement for lease was signed on 14 November 1996 (Part of SN2). I conclude that the Plaintiff continuously violating the rights of the Native Landowners todate under the guise of protracted litigation on the same issue by filing frivolous actions.

Having made above conclusions I determine the Defendant had justified strike out of the action filed by the Plaintiff as provided in Order 18 Rule 18(1)(a), (b) and (d), and under the provisions in the Section 29 of the Fiji Constitution.

As per above determination, the Notice of Motion for reinstatement filed on 12 March 2013, is refused.

Orders of the court:

(1) The Plaintiff's action is struck out and dismissed.
(2) The Plaintiff's Notice of Motion for reinstatement dismissed.
(3) The Plaintiff had continuously filing frivolous actions and I order indemnity costs against the Plaintiff.

Delivered at Suva this 28th Day of May 2015.

...............................

C. KOTIGALAGE

JUDGE