Tuidekei v Koroimata [2015] FJHC 654; HBC21.2014 (11 September 2015)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. 21 of 2014

BETWEEN

VILIMONI TUIDEKEI, MARIKA SOQETA and PITA RATUAGONE.
PLAINTIFF

AND:

AKUILA KOROIMATA, PENAIA SOQETA and LASARUSI BULI.
1ST DEFENDANTS

AND:

VILIAME BOGISA and RUSIELI CAGINAVANUA.
2ND DEFENDANTS

AND:

SERUPEPELI NAITAU, PONIPATE RATUAGONE and JOSEVA SOQETA.
3RD DEFENDANTS

Solicitor for Plaintiff : Non Appearance
Solicitor for Defendant : Vuataki Law

R U L I N G

1. This matter was marked for hearing of the substantive Originating Summons yesterday but neither the Plaintiff nor his counsel appeared. Mr. Vuataki of counsel for the defendants appeared fully prepared with extensive submissions to strike out the Originating Summons. After hearing him, and having read his submissions, I have decided to strike out the Plaintiff’s Originating Summons and also ordered indemnity costs to the Defendants. Below I reproduce in full Mr. Vuataki’s submissions which I endorse. In addition to Mr. Vuataki’s submissions, I am also guided by an interlocutory ruling on this same matter which is reported in paclii (see Tuidekei v Koroiratu [2015] FJHC 80; HBC21.2014 (12 February 2015)).
   

The Application

1. The Applicant Plaintiffs filed an Originating Summons dated 17th February, 2014 seeking a declaration that they are the legal and rightful Trustees of Mataqali Ketenamasi Trust of Yaro village by Deed of Trust dated 23rd October 2011 and registered on 24th October 2011. Secondly they seek a declaration that the 1st Defendants were unlawfully and illegally appointed as Trustees and to cease acting in that position. Two injunctions are sought as well as other reliefs as the honorable Court deems just and costs on a Solicitor/Client indemnity basis.
   

Striking Out for Lack of Cause of Action

2. Order 7 rule 3(1) of the High Court Rules requires an Originating Summons to state sufficient particulars to identify the cause or causes of action in respect of which the Plaintiff claims the relief or remedy. The Order 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 or causes of action in respect of which the Plaintiff claims that relief or remedy.”

3. This means that sufficient particulars must be in the Summons to identify the cause or causes of action. No particulars of cause of action being stated in the Summons we submit that the Summons should be dismissed for lack of cause of action.
   
4. Justice Callachini as he then was in Rasoki v Attorney General of Fiji [2010] FJHC 266; HBC107.209 (12 February 2010) struck out an Originating Summons that breached this rule and quoted the Fiji Court of Appeal
   

’ In Reserve Bank of Fiji –v- Trevor Robert Gallagher and Another (unreported Civil Appeal No. 30 of 2005 delivered 14 July 2006) the Fiji Court of Appeal stated at paragraph 58 that:

"Order 7 Rule 3 (1) requires an originating summons to stateddition to the rele relief sought, sufficient particulars dentify the causes of actioaction on which the Plaintiff re"

1. In this case the Plaintets oe Orders and Decl Declaratiarations sought but does not provide any particulars as to why the Orders sought should be granted. The ORIGINATING Summons ought to be struck out on this ground.
   

Dismissal for Lack of Evidence

6. The Originating Summons is for hearing. There is no evidence being relied upon by the Originating Summons to support the Declarations and orders sought. It does not particularize the Affidavit being relied upon. There is an Affidavit sworn the 17th day of February, 2014. It is headed ‘’AFFIDAVIT OF VILIMONI TUIDEKEI IN SUPPORT OF EX-PARTE MOTION’’. Paragraph 1 of the Affidavit states “THAT I am authorized to depose this affidavit in support of the Plaintiff’s ex-parte motion..”
   
7. Lord Bingham is cited By Justice Scutt in Prasad v Divisional Engineer Northern (No 2) [2008] FJHC 234; HBJ03.2007 (25 September 2008) as follows;
   

“’since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation has been proved the allegation should not be made or should be withdrawn: Medcalf v. Weatherill and Anor, at 8, per Lord Bingham.”(Emphasis added).

8. There is therefore no evidence to be heard in support of the Originating Summons and the ORIGINATING Summons can be dismissed on the ground of lack of evidence.
   

Dismissal for Moot Action

9. The majority of the Court of Appeal in Yabaki v President of the Republic of the Fiji Islands –Majority Judgment [2003] FJCA 3; ABU0061U.2001S(14 February 2003) dismissed an appeal because the case was moot. In that case the Court of Appeal in Republic of Fiji v Prasad [2001] NZAR 385 had held that abrogation of Fiji’s Constitution was null and void and that Parliament had not been dissolved, but had been prorogued and that the Vice President could continue the functions of President till 15th March 2001.
   
10. As a consequence of that decision the Plaintiff sought Orders and declarations that the President had not followed the Constitution in not summoning Parliament, dissolving it, dismissing the Prime Minister and appointing an interim Government. The High Court held that the President was required to act on advice of Prime Minister and that the President had either acted constitutionally or justified under the doctrine of necessity.
    
11. By the time the High Court delivered judgment writs of election were planned to be issued by the following day and a date for election had been announced. By the time the Court of Appeal came to consider the appeal elections had been held and the nation was back under democratic rule.
    
12. The Court of Appeal dismissed the appeal because the issues were no longer live and had become moot. The case was one on public law and not private law. The Court of Appeal however set out the settled law on on-public cases as follows;
    

“The settled law about mootness in non-public-law cases is found in Sun Life Assurance Co of Canada v Jervis [1944] AC 111, 113-114 and Ainsbury v Millington (Note) [1987] 1 WLR 379, 381. In the latter case, Lord Bridge said;

“In the instant case neither party can have any interest at all in the outcome of the appeal. Their joint tenancy of property which was the subject matter of the dispute no longer exists. Thus, even if the House thought that the judge and the Court of Appeal had been wrong to decline jurisdiction, there would be no order which could now be made to give effect to that view. It has always been a fundamental feature of our judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved. Different considerations may arise in relation to what are called ‘friendly actions’ and conceivably in relation to proceedings instituted specifically as a test case. The instant case does not fall within either of those categories. Again litigation may sometimes be properly continued for the sole purpose of resolving an issue as to costs when all other matters in dispute have been resolved.” (emphasis added through underlining).

13. The subject matter of the dispute as appears from the ex-parte Motion of the Plaintiff dated 17th day of February 2014 and the Affidavits filed for and against the ex-parte Motion shows that the subject of the dispute is that the Plaintiffs are saying that they were the Trustees of Mataqali Ketenamasi of Yaro Village by a Deed of Trust dated 23rd October, 2011 and registered the 24th October 2011 and to be Trustees till December 2014.
    
14. The 1st Defendants are saying that the Plaintiffs had no right to sign the alleged Deed of 24th October 2011 on behalf of the Mataqali and therefore their appointment under a Deed of Trust dated 10th February 2009 applied. Under that Deed they were to be Trustees for five years which ended on the 12th February, 2014.
    
15. The 1st Defendants were appointed on 12th February, 2014 and 66.5% of adult members of the Mataqali have ratified the Deed. The Deed was registered with Registrar of Deeds on the 4th day of March 2014 as number 4458. Because the iTaukei Land Trust Board did not recognize the Deed and required the Mataqali to meet and elect three Trustees and establish a new Deed of Trust the Mataqali met and elected 1st Defendants as new Trustees.
    
16. Majority 81.98% of adult members signed TLTB form 5b led to TLTB recognizing 1st Defendants as Trustees of the Mataqali. This honorable Court by judgment dated 12th February required reconfirmation that Plaintiffs term had lapsed and to confirm appointment of new Trustees. The Mataqali thereupon met on the 16th day of February, 2015 and reconfirmed that Plaintiff’s term as Trustees has lapsed and that 1st Defendants were elected as Trustees.
    
17. The 1st Defendants entered into a new Deed of Trust dated 16th day of February, 2015 which was registered on 24th February, 2015 as Deed number 46615.
    
18. It is respectfully submitted that the situation is akin to what the majority of the Court of Appeal stated in Yabaki when their Lordships stated;
    

‘’Because the elections have been held, it is too late to ‘turn the clock’ back. The elections were duly held despite any constitutional irregularities which may have preceded them. The nation has returned to democratic rule.”

19. This case is on a much better footing when the Plaintiffs themselves have stated and submitted that their term had expired, the honorable Court required reconfirmation and new election. New election has been held and there is now the democratic rule of majority adult members rather than the self-appointing method taken by the Plaintiffs in signing on behalf of the Mataqali rather than majority adult members signing on behalf of the Mataqali as in the 16th February, 2015 Deed.
    
20. It is therefore respectfully submitted that the Plaintiff’s Originating Summons be struck out on this further ground.
    

Abuse of Trust By Plaintiffs

21. In Vosailagi v Mara [1992] FJHC 62; HBC0569d.91s (4 December 1992) on an allegation of breach of Trust and appointment of new Trustees the High Court quoted from the Privy Council as follows;
    

“More relevant however in the present context is the decision of the Privy Council in Letterstedt v. Broers (1884) 9 App. Cas. 371 in which the Court laid down the 'guiding principles' to be applied in the removal of trustees in the following passages of its judgment delivered by Lord Blackburn at pp. 386 and 387:

"It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising ... is merely ancillary to its principle duty, to see that the trusts&#1re properly executxecuted. This duty is constantly being performed by the substitution of new trustees in the place of original ees for a variety of reasons in non-contentious cases. And therefore, though it should appe appear that the charges of misconduct were either not made out, or were grossly exaggerated, so that the trustee was justified in resisting them,... yet if satisfied that the continuance of the trustee would prevent the trusts& being properly exec executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the &trust; esta estate.

>

As soon as all questions of character are as far settled as the nature of the case admitsif it appears clear that the continuance of the trustee would be detrimental to the executiecution of the trust , even if for nor reason thon than that human infirmity would prevent those beneficially interested, or those who act for them, from working in ny with the trustee, ... the trustee is always, advised by his counsel to resign, and does does so.

In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries."

And later at p.389 their lordships said:

"It is quite true that friction or hostility between trustees and the immediate possessor of the trust estate is not of itself aoneason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been adteres, ... it i it is certainly not to be disregarded<(emphmade by underlinirlining).

22. Joseva Soqeta deposes that;
    

1. The Plaintiffs were required under the Trust to meet under Chairmanship of Rara Cava but they tried to sack him and refused to meet at a reconciliation meeting resulting in loss of not having a village jetty, 10 houses, new community hall and other developments;
   
2. The Plaintiffs were required to disburse 80% of Trust funds at a meeting called by the Turaga ni Mataqali but they never followed such requirement which has resulted in loss of trust funds,
   

100. Despite Trust income of $900,000 a year received by Plaintiffs they had loaned $407,916 from Housing Authority for renovations when such can be paid for in Cash in circumstances where houses were built at loan of $500,000 and repaid with interest at $1.5 million.
     

24. It is therefore respectfully submitted that it is not in the welfare of the Beneficiaries that the Plaintiffs be Trustees of the Mataqali and that the Orders and Declarations sought by them be not granted.
    

Indemnity Costs

25. In Prasad v Divisional Engineer Northern (No 2) [2008] FJHC 234; HBJ03.2007 (25 September 2008) Justice Scutt set out a number of circumstances in which indemnity costs are granted. Callachini P had agreed with citation of this case in South Sea Cruises Ltd v Mody [2014] FJCA 71; ABU0034.2010 (29 May 2014).
    
26. Those relevant to this case are as follows;
    

‘... neither considerations of hardship to the successful party nor the over-optimism of an unsuccessful opponent would by themselves justify an award beyond party and party costs. But additional costs may be called for if there has been reprehensible conduct by the party liable’: State v. The Police Service Commission; Ex parte Beniamino Naviveli (Judicial Review 29/94; CA Appeal No. 52/95, 19 August 1996), at 6

Usually, party/party costs are awarded, with indemnity costs awarded only ‘where there are exceptional reasons for doing so’: Colgate-Palmolive Co. v. Cussons Pty Ltd at 232-34; Bowen Jones v. Bowen Jones [1986] 3 All ER 163; Re Malley SM; Ex parte Gardner []2001] WASCA 83; SDS Corporation Ltd v. Pasonnay Pty Ltd & Anor [2004] WASC 26 (S2) (23 July 2004), at 16, per Roberts-Smith, J.

Costs are generally ordered on a party/party basis, but solicitor/client costs can be awarded where ‘there is some special or unusual feature of the case to justify’ a court’s ‘exercising its discretion in that way’: Preston v. Preston [1982] 1 All ER 41, at 58

Indemnity costs can be ordered as and when the justice of the case so requires: Lee v. Mavaddat [2005] WASC 68 (25 April 2005), per Roberts-Smith, J.

For indemnity costs to be awarded there must be ‘some form of delinquency in the conduct of the proceedings’: Harrison v. Schipp [2001] NSWCA 13, at paras [1], [153]

Circumstances in which indemnity costs are ordered must be such as to ‘take a case out of the "ordinary" or "usual" category ...": MGICA (1992) Ltd v. Kenny & Good Pty Ltd (No. 2) [1996] FCA 862; (1996) 140 ALR 707, at 711, per Lindgren J.

‘... it has been suggested that the order of costs on a solicitor and client basis should be reserved to a case where the conduct of a party or its representatives is so unsatisfactory as to call out for a special order. Thus, if it represents an abuse of process of the Court the conduct may attract such an order’: Dillon and Ors v. Baltic Shipping Co. (‘The Mikhail Lermontov’) (1991) 2 Lloyds Rep 155, at 176, per Kirby, P.

Solicitor/client or indemnity costs can be considered appropriately ‘whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known ... he had no chance of success’: Fountain Selected Meats (Sales) Pty Ltd v. International Produce Merchants Ltd & Ors [1988] FCA 202; (1998) 81 ALR 397, at 401, per Woodward, J.

Albeit rare, where action appears to have commenced/continued when 'applicant ... should have known ... he had no chance of success', the presumption is that it 'commenced or continued for some ulterior motive or ... [in] wilful disregard of the known facts or ... clearly established law' and the court needs 'to consider how it should exercise its unfettered discretion': Fountain Selected Meats, at 401, per Woodward, J.

Where action taken or threatened by a defendant 'constituted, or would have constituted, an abuse of the process of the court', indemnity costs are appropriate: Baillieu Knight Frank (NSW) Pty Ltd v. Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359, at 362. per Power, J.

At the hearing stage, the making of or persisting in allegations made by one party against another, unsupported by admissible evidence 'since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation has been proved the allegation should not be made or should be withdrawn: Medcalf v. Weatherill and Anor, at 8, per Lord Bingham.

27. In this particular case the Plaintiff had abused process by not setting out the particulars of cause of action nor adduced any evidence to support originating summons. Even when they knew that the Mataqali had met three times and by majority appointed the 1st Defendants as their Trustees they continued with the action despite the long standing advice of the Privy Council as cited in Vosailagi. Even at this hearing they persist despite the earlier of this honorable Court requiring confirmation of lapsing of term of Plaintiffs as Trustees they have continued to press this Court to a hearing despite the subject matter in issue becoming moot and no evidence adduced in support of Originating Summons.
    
28. This is reprehensible conduct as stated by the Court of Appeal in Public Service Commission v Naiveli [1996] FJCA 3 (see Attorney General v Draunuidalo [2009] FJCA 54 paragraph 8) . It is therefore respectfully submitted that Indemnity Costs be given to Defendants and Defendants be given leave to file Affidavit on Costs paid to their Solicitors for this action.
    
2. As I have stated above, I strike out the Plaintiff's Originating Summons and grant indemnity costs to the Defendants.
   

..................................
Anare Tuilevuka
JUDGE
11 September 2015