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High Court of Fiji |
In the High Court of Fiji at Suva
HBC 222 of 2011
Civil jurisdiction
Sitiveni Ratabua and Neimani Draumasei
Plaintiffs
And
iTaukei Land Trust Board
Defendant
Appearances: Ms R.Lal for the plaintiffs
Ms L.Komaitai for the defendant
Date of Hearing: 11th, 12th, 13th and 19th September,2013
JUDGMENT
The statement of claim recites that the first plaintiff is the legal representative of the Mataqali Namara and the second plaintiff, the legal representative of Mataqali Vico. The plaintiffs together with other mataqali sentered into a Memorandum of Understanding,(MOU) with Goodman Fielder International (Fiji) Limited,(GFL)on 5th August,2003,to lease an area of land called “Naitalasese No 2, Ref.TL1706”(the land). There followed the lease of the landby the defendant, the iTLTB to GFL. The plaintiffs allege that the iTLTB breached its duty as trustee of their land, by granting the lease without(1)consulting them and/or their mataqalis, and(2)obtaining the requisite consent of their mataqalis. The plaintiffs seek damages for loss of use of their land from 2003, an order that the lease is void and general damages.
The defendant, in its statement of defence, states that it was heavily involvedin consultation with the first and second plaintiff mataqalis and Mataqali Naluna,Mataqali Navorara, Mataqali Vunikavika and Mataqali Vutuvo, prior to the signing of the MOU. Consent was duly obtained from the mataqalis. The defendant complied with all the requirements of granting a lease. It has a discretion with regards to the term of the lease.
Evidence on behalf of the Mataqali Namara
3.1 PW1,(the first plaintiff, the Acting “Turaga Ni Mataqali”) of the Mataqali Namara said that he signed the MOU. Its contents were not fully explained to him by Savenaca Ralagi, (Ralagi) an officer of the iTLTB.
3.2 The iTLTB held several meetings on the lease of 100 acres of land to GFLat the village hall. The lease was discussed. Thirty per cent of the villagers attended. The iTLTB did not discuss the lease with his mataqali. Ms Lal, counsel for the plaintiffs asked PW1 whether they were given an opportunity to discuss the terms, or if they were just told about the proposed lease. His answer was that they were “just told”. They were told that GFL wanted to lease 4 chicken coops. The minutes of the village meetings of 8 and 26 December,2002 were produced.
3.3 PW1 said that his mataqali gave consent to lease the land to GFL. He signed the consent form issued by the iTLTB, as head of his mataqali. The landowners were to receive a chicken coop and young men, employment. The extent of the land was not identified in the form.
3.4 The consent of his mataqali was not properly obtained. Twenty-two members gave their consent. Of the twenty-two, eight were eligible. The Mataqali Namara comprised of 52 members with 34 over the age of 21 years.51% should have signed the form.
3.5 The major part of the land is used by GFL. The landowners require the land, to set up a business. They have use of the land for raising animals and planting vegetation.
3.6 The land is native, but not reserve land.
3.7 In cross-examination,PW1said that prior to signing the MOU, he informed members of his mataqali of the proposed lease. He agreed that it was his responsibility to inform them.GFL visited his village. Consultations were held at village meetings. In answer to MsKomaitai, counsel for the defendant, PW1 said that he saw Ralagi, asa representative of the iTLTB, not as a member of his mataqali.
3.8 He agreed that it was not practical to call each mataqali separately. A sum of $ 8000 was received by the mataqali annually, as lease rental. The mataqali were to build chicken sheds and sell chicken to GFL. There was no goodwill payment for the lease.
3.9 Ms Komaitai queried further why six village meetings were held, if no questions were posed by the mataqali.PW1 said that a representative of the iTLTB explained the terms of the lease. He had attended three meetings, at which questions were asked. Earlier, the land was leased to Ayub. That lease had expired. Ayub was in arrears. The arrears were paid by GFL. PW1confirmed that the subject matter of the lease was native land, outside the reserve.
3.10 In re-examination, in answer to MsLal’s question as to whether it was the responsibility of iTLTB or the witness to speak to members of his mataqali, PW1 said that it was the responsibility of the iTLTB.If a village meeting was held, some members of the mataqali would know of what transpired. Finally, he was asked whether a village meeting can be equated to a meeting of the members of the mataqali; his answer was in the negative.
3.11 PW2,(Josevata Naviri,a member of the Mataqali Namara) in his evidence in chief, said that in September,2002,a representative of the iTLTB came to his village and convened an “informative meeting” on the proposed lease. The meeting was called by the “Turagani Koro”. The land owners were assured that each of the mataqalis would have monetary benefits, employment opportunities and small holder firms. The iTLTB did not consult his mataqali.
3.12 He was against the lease,but was traditionally obliged not to object. He gave his consent reluctantly. He is accountable to his chief. Ralagi was the eldest son of “Turaga Vutuvo” and his successor. He said that Ralagi came to the meeting as representative of the iTLTB, but they took him to be the chief of his clan. The subsequent village meetings were called by Ralagi as acting head, since his two elder brothers were not in the village at that time.PW2 said that he was duty bound not to question Ralagi. The members of the mataqali asked questions. The chief had the last say.He accepted that he was “told to lease” to GFL. They were assured of income and an improvement in their financial situation, as they had failed. PW2 said that he reluctantly accepted the agreement, although within him he was against the lease.
3.13 It was the responsibility of the iTLTB to obtain the views of the landowning unit. The Acting “Turagani Mataqali” requested them to accept the lease. He produced the consent form. He said that the name of the land was not given nor the NLC Lot number. His mataqali did not know what they were signing. They signed in blank. It was effected in a hurry. Informative meetings were held, prior to the signing.
3.14 As at July,2003, there were fifty-two registered members of his mataqali. Thirty-four members over the age of 21 were required to give consent to comprise the majority 51 %. The members knew of the improper consent only when they saw the consent form. Eight correctly signed the form.
3.15 In cross-examination, PW2 said that he had a diploma in Theology. He said that he was duty bound to humbly submit to the representative of the Board, as he was a son of the chief. The chief of Mataqali Namara is “Turaga Naluna”.Ralagi belonged to another Yasuva: the “Turaga Vutuvo”. He was the son of a chief of another Yavusa, not a total outsider.
3.16 It transpired that Mataqali Nabua had not accepted the lease.PW2 said members of that mataqali had exposure to the world and were governments secretaries and diplomats, unlike members of his mataqali. He resided in the village. The iTLTB should have convened a meeting of the mataqalis, instead of meetings at village level. The village is not the land owning unit. He said that he was aware of the MOU, before he signed the consent form.
3.17 In re-examination, he said that it is traditional to listen to a son of another Yavusa. They belonged to the same village of Vunivaivai. The people of Naluna come under Vutuvo. The son of the chief of Vutuvo is his chief too. The Mataqali Nabua objected to the lease and did not sign the agreement, as they are more educated and hold high office.
3.18 PW3,(Nacanieli Sikinairai, a school teacher and member of Mataqali Namara) said that he did not live in the village. He was not invited for the village meetings. He did not consent to the lease. Neither he nor his family members were asked to give their consent. He saw the consent document after it was executed. Timoci was asked to obtain the signatures and return the form on the same day.
3.19 Of the twenty-two who gave consent, only eight were eligible. The other fourteen were under age, while several others were not in the village. His mataqali did not agree to the lease.
3.20 It emerged in cross-examination that until 2011,(when these proceedings were filed)the members of his mataqali had not complained that their consent was irregular.PW3 said that he took up this matter with the “Turaga Mataqali” in 2003. He said he had been in Suva, all his life. He was not aware of the village meetings.
3.21 In re-examination, PW3 was asked whether his “Turaga Mataqali” complained verbally to the iTLTB. His answer was in the affirmative.
Evidence on behalf of the Mataqali Vico
3.22 PW4,(Amelia Matua, a member of Mataqali Vico), testified that her mataqali consented to the lease. She had not attended the village meetings. She came to know of the lease through her brother. Her brother told her that the land was being leased to build a chicken shed for GFL. The iTLTB did not inform her mataqali of the proposed lease. There was no discussions.
3.23 PW4 said that she filled the consent form with the name of the Koro, Tikina and Yavusa, while the iTLTB filled the other details. The form was given uncompleted. Eleven members are registered in the “Ai Vola ni KawaBula” (VKB). Seven were required to give their consent, but only two signed. Her father told her to sign the consent form by her father. She did not agree to the lease, but had to obey her father. There was no proper consent given for the lease. They were happy planting rice on the land.
3.24 In cross-examination,PW4 said that she had a diploma in Primary Education. The “Turaga Ni Mataqali” of her unit was her Aunt. The mataqali comprised of eleven members of the same family, effectively one family living within walking distance of each other. It transpired that at the time she was planting rice on their land,(of 8.0433 ha),it was leased hitherto to another party,
3.25 MsLal, clarified in re-examination that the consent should be in conformity with the VKB.PW4 said that she did not attend the village meetings, as traditionally only men attend these meetings.
3.26 PW5,(the second plaintiff, Nemani Draumasei, Acting Turaga Mataqali of Mataqali Vico) testified. He was blind. He said that Ralagi brought the MOU for his signature. He gave an affirmative answer to the question posed in evidence in chief as to whether this action was the culmination of his unanswered verbal complaints made to Ralagi, since 2003 .
3.27 His son informed him of the proposed lease. The iTLTB did not discuss the terms of the lease nor explain it to him. He was asked to place his thumb print. Ralagi and his brother Atunaisa were present. He said that his mataqali consented to the grant of the lease. But he did not. He requested his family members to consent. They could not disobey him. He brings these proceedings to have the land returned, as his mataqali did not give proper consent to the lease.
3.28 In cross-examination,PW5said that he made verbal complaints to iTLTB that the rent be raised. He said that his mataqali, including his family members received rent from GFL. They receive $ 2000 as lease rentals bi-annually. Initially, they received $1000. He was not happy with the payments received.
3.29 In re-examination, PW 5 said that his son who attended the village meetings was under 21 years of age.
Evidence on behalf of the Mataqali Vunikavika
3.30 PW6,(Nemai Waka, a member of Mataqali Vunikavika said that he attended the village meetings held at the village hall in Vunivaivai with Ralagi. Twenty villagers attended. They were informed that 100 acres were required to be leased. He took the consent form to the members of his mataqali. Seventeen members signed the document. There were one-hundred and twenty seven members in the mataqali. Fifty six were over the age of 21 years and eligible to vote.
3.31 In cross-examination, PW6 said that he was happy with the lease. Members of his mataqliare now not happy with the rentals received. In 2003, they were happy with the lease and agreed to lease their land.
3.32 In re-examination, the question was posed as to why a fuller complement of signatures of his mataqali was not obtained, if they were happy with the lease in 2003. He said that he had to obtain the signatures at the earliest. The consent of his mataqali was not duly obtained.
Evidence on behalf of the Mataqali Vunikavika
3.33 PW7, (IliaitiaTavua Siniairai, a member of the Mataqali Vunikavika said that he attended the village meetings. The meetings were called by the herald man. The lease to GFL was discussed . No questions were raised at these meetings.
3.34 The iTLTB did not meet his mataqali. His mataqali consented to the lease. PW7 said that he did not give his consent, as he did not receive a form. All the members of his mataqali did not consent. As such, the lease was not proper. It is the responsibility of the iTLTB, to obtain the signatures.
3.35 In cross-examination, PW7 said that two village meetings were held in December, 2002. They were informed that GFL wanted a lease of the land. The Mataqali Nabua raised questions as to the benefits the village will receive.
3.36 He did not exercise his right to object. Ms Komaitai asked him why he did not write to the iTLTB that he was not happy with the lease. His answer was that villagers respect their head and cannot go against him. It transpired that at the time the consent of the mataqli was obtained, he was in Nausori.
Evidence on behalf of the MataqaliNabua
3.37 PW 8 (Filimone Rokovada, member of Mataqali Nabua) said that he did not attend any village meetings. His mataqali did not sign the MOU. He said they forecasted the negative impact of the project. He agreed that several members of his mataqali were Permanent Secretaries and in the diplomatic service. The MOU was hurried and people were not allowed to get advice. The Chiefs of the village convinced the other mataqalis to go ahead with project. The iTLTB failed in its role as sole custodian of native land.
3.38 In cross-examination, he said that he did not attend any village meetings. His mataqali informed the iTLTB that they would agree to the lease, subject to conditions.
Evidence on behalf of the Mataqali Vutuvo
3.39 PW9,(Levani Matea, a representative of the Mataqali Vutuvo) said that his mataqali received $ 15000 per annum, as lease rentals. The iTLTB did not call any meeting with his mataqali.
Members of his mataqali attended village meetings with representatives of the Board and GFL. The villagers agreed to lease the land. The Board did not have the right to give land. The land belongs to the mataqali.
3.40 There were one hundred and forty members of his mataqali. Thirty-nine were required to sign. Only seventeen properly gave their consent. This did not meet the threshold of valid signatories. The land was not identified in the consent form.
3.41 In cross-examination, he said that before the land was leased, it was used for grazing cattle and obtaining firewood. When the question was posed whether he wanted GFL to lease the land, he said that he requires “time to think”. He said that the lease was not given properly, since the written consent was not given as required. He was not aware how much money was received as rentals.
B. Evidence for the defence
3.42 DW1(Savenaca Ralagi, Manager, iTLTB) said that he belonged to the MataqaliVutuvo.GFL applied for a lease of land. A formal application was made on 11th March, 2003. GFL approached the landowners, prior to making the application. DW1 said that he declared his interest to the iTLTB, since part of the leased land belonged to his mataqali.
3.43 He explained that the iTLTB does not require the consent of the mataqali, to lease land outside the native reserve. There is a specific consent form issued in respect of land outside the reserve. Majority consent is only required for land within the reserve. The Board, can at its discretion, lease land outside the reserve area without the consent of the mataqali, but it is proper that land owners are consulted. It can lease land, even if all the mataqalis objected, provided it was in the best interests of the landowners.
3.44 DW1 said that he represented the Board, at the village meetings. The meetings were held with the mataqalis at the Community Hall. They had six to seven meetings. The benefits of the lease were discussed. The mataqalis had the option to opt out of the MOU. No objections were raised to the lease by any of the six mataqalis. Their silence was considered as acceptance. They favoured the project, while Mataqali Nabua objected.
3.45 DW1 said that the plaintiff mataqalis never complained all this time. They enjoyed the money.
3.46 The land was leased to GFL, in the best interest of the landowning units. They never had such a rental income and employment opportunities. It was a blessing for them. The plaintiffs receive the biggest share of the lease monies.
3.47 The mataqalis accepted the lease and signed the MOU on 2 July,2003.DW1 said that he was present at the execution of the MOU.GFL presented a tabua to the village, as a token of appreciation for the grant of the lease.
3.48 Mataqali Namara owned 79 acres. 32 was within the project. The offer amount for the lease was a $ 60,000 upfront premium and a rental of $ 15000 per annum for the first year. Mataqali Namaraand Mataqali Vico own 59 % of total acreage leased. GFL paid $15000 to iTLTB from 2003 for the first five years, till 2008. From 2008 to 2013, a rental of $30000 per annum was paid. A sum of $ 285,000 has been paid, since 2003 to-date, of which $ 40,000 was paid to iTLTB and the balance $ 245000 to the landowners.
3.49 There was an abundance of unused land. The iTLTB found that the land was not developed. It was highly unlikely that it would be developed by the mataqalis. For the last 10 years, there was no plan nor development of the land by the plaintiffs. Now there are 4 big tunnel chicken sheds, with each producing 36000 broilers. There is still land available from expired leases for the mataqalis.
3.50 The mataqalis had not followed up on re clause 3 of MOU to organize funds for the set up cost on their individual leases for GFL’s offer of construction of 7 chicken rearing sheds.
3.51 In cross-examination, DW1 said that the mataqalis had never received such lease rentals. They had not established even a small holder chicken shed. It transpired that DW1’s family had started a chicken shed that was not in operation. It was repossessed by the mortgagee. It was put to him that it was not viable to operate a chicken shed.
3.52 The rental income received was $ 15000 per annum and $285000 for 10 years. Mataqali Namara received $ 3300 and Mataqali Vico received 6300 per annum. The investment by GFL was $ 2m. DW1 said that he was unaware of their gross income. It was put to him that $ 3300 per annum is an inadequate return for a $2 m project. DW1 said the rent was not stagnant. It was reviewed on a five year basis. He said that the land was assessed for its value, not the income upon the productivity of the tenant The rental was the highest reached in the village.
3.53 It was suggested to him that if the villagers planted dalo, they would earn more than $ 196 peracre each year. He said that depends on the market for dalo.
3.54 Ms Lal also said that there is no other land available for the mataqalis for cultivation. The rest of the land was not arable. DW1 said that rice could have been planted and dalo, in pockets. But the landowners neither had the correct attitude nor the skill to develop the land. They have benefitted financially from the lease and now own cars.
3.55 He was next questioned on the number of members of the mataqalis that live in the village. He was asked why consent forms were issued by the iTLTB, if the consent of the mataqalis was not necessary. He said it was necessary for their records.
3.56 Five landowners were employed by GFL. He denied that only one was employed. Many were terminated, because of their attitude.
3.57 It was put to DW1 that the lease was in his self interest and was not in the best interests of the landowners. It emerged that he had interest in two firms that provided wood shavings and security services to GFL.
3.58 In re-examination, he said the land was leased to a dairy farm and completely neglected. The iTLTB was in the verge of terminating that lease. The plaintiff mataqalis had not come up with any development plans. They were free to object to the lease, as the Mataqali Nabua did.
3.59 The lease offered to GFL was absolutely the best use. The land was a total failure. The earlier lease was a total failure. It was desirable that it be made productive. The criteria stipulated in section 9 was satisfied.
3.60 Initially more than ten employees were employed. They were laid off due to their attitude. Now five are employed.
3.61 DW1 said that the profits from the firms that provide security services and wood shavings, go to the village. Both firms were registered after the consultative process in March, 2004.
3.62 DW2, (Manasa Vakabua) described the de-reservation process of reserved land. He said that when land outside the reserve is leased, the iTLTB is required to conform with section 9, and ensure that the land is not beneficially occupied by the landowners and the proposed lease would not affect their future needs. The written consent of the mataqali is not necessary, but the iTLTB is required to consult the landowners. It is impossible to get a 100% turnover at village meetings.
3.63 From 2003 to 2007, the Mataqali Namara had received $ 53177.53 as rental, while Mataqali Vico had received $ 33000.
3.64 DW3,(Jemesa Lave, a farmer from Mataqali Vutuvo) said that his father, Niko Komiyase was the head of his mataqali. He signed the MOU. The GFL came to the village. This was followed by representatives from the iTLTB. His father had called a village meeting. Ms Komaitai begged the question whether it was appropriate for the Board to approach each mataqali separately, as its members are small. He replied in the negative.
3.65 There was no objection or disapproval from the plaintiff mataqalis at the village meetings. Only Mataqali Nabua objected.
3.66 DW4,(Mosese Ratubalavu, Reserve Commissioner, iTLTB) said that the land belonging to Mataqali Namara and Mataqali Vico was outside the native reserve. It was contained in the Garnett Dairy lease. The total area belonging to Mataqali Namara was 79 acres with 40 outside the reserve. The total area belonging to Mataqali Vico was 40 acres with 40 outside the reserve. He confirmed that the Board has the discretion to lease the land outside reserve area. It has only to have consultations with the landowners.
4.1 The case for the plaintiffs is that the iTLTB breached its duty as trustee, by granting a lease of their land to GFL. Two particulars of breach are pleaded in the statement of claim, namely, that the iTLTB failed to consult the plaintiffs and/or their mataqalis and obtain the requisite consent of its members before granting the lease.
4.2 The iTLTB, in its defence, states that it was “heavily involved” in consultation with the plaintiff mataqalis and its members, prior to the signing of the MOU. The plaintiffs consented to the issue of the lease to GFL.
4.3 It is convenient to set out the regime of the Native Land Trust Act,(cap 134), the Act relating to the “control and administration of native land”.
4.4 Section 4 vests all native land in the iTLTB and is to be administered “for the benefit of the Fijian owners”.
4.5 Section 8 empowers the ITLTB to grant leases or licenses of “portions of native lands not included in a native reserve”, subject to section 9.It is common ground that the subject matter of the impugned lease is native land, outside the reserve area.
4.6 Section 9 has two limbs. It states that no native land shall be leased or licensed unless the iTLTB is satisfied that the land (i) isnot being beneficially occupied by the Fijian owners and (ii)isnot likely during the currency of such lease or license tobe required by the Fijian owners for their use, maintenance or support”.(emphasis added)
4.7 MsLal, in her closing submissions, quite correctly submits that the consent of the landowners is not required by the iTLTB to lease native land outside the reserve area. Consent forms an element of the consultation process which the iTLTB must comply with. But she goes on to argue that the consent must be obtained “properly”, in order to ascertain if the land is beneficially occupied or needed for the benefit of the landowning unit. The evidence led on behalf of the plaintiffs was befogged with the contention that the consent of the majority of the members of the respective mataqali was not obtained.
4.8 In my judgment, the contention that the proper course would have been to obtain the majority consent of all eligible members of the mataqali for the grant of a lease outside the reserved area is totally misconceived, as exemplified in the following cases.
4.9 I would start first with the passage of Williams J in Radreu v Gold Mining Co Ltd, (1978) FJSC 84. He said:
Section 9 merely enacts that the Board has to be satisfied that the grant of a lease or license is not adverse to the interests of the Fijian owners. It does not set out the special procedure to be adopted by the Board in order to ensure that the interests of Fijian owners shall not be adversely affected. (emphasis added)
4.10 Ms Lal in her closing submissions has referred to an instructive judgment of Cullinan J in Waisake Ratu No 2 v Native Land Development Corp and NLTB, (1987) 37 FLR 146. In that case, the Court said that the “satisfaction” referred to in the section must be “viewed objectively, that is, as with the exercise of all statutory powers such satisfaction must be formed on reasonable grounds.”Cullinan J declared further at page 163:
The section quite clearly imposes a duty upon the Board of at least consultation in the matter certainly with respect to the second limb of the section. Indeed, it seems to me that even with the first limb, in order to ensure that the land is not being beneficially occupied, the Board would need to consult with the native owners in the matter.(emphasis added)
Cullinan J referred to Serupepeli Dakai No1 &Ors v NLDC,(1983)29 FLR 92at page 99 where the Court of Appeal (in an appeal against a judgment of Mr Justice Kermode) jettisoned the argument that individuals are entitled to be consulted by the Board, before it exercises its statutory powers of granting leases of native land as follows:
This is clearly not so – the Board alone has the power, and any consultations prior to authorizing leases may have been merely a public relations exercise and have lead, as Kermode, J believes, to a mistaken belief by individual members that they are entitled to be consulted.(emphasis added)
4.11 Cullinan J agreed with the following passage from the judgment of Kermode J(as he then was):
The consent of any mataqali as a unit is not legally required to any Act that the Board can legally do under the Act unless the Act specifies that consent of the native owners i.e. the land owning mataqali is required. Individual members are not owners and their consent is not required.(emphasis added)
4.12 A fortiori, regulation 2 of the Native Land (Mianeous Forms) Regulationations,(cap134)enacts that the “consent(of)a majority of the adult native owni>is to be given in n in “such form as the Board may consider appropriate&#/i>” when it is required to be givenr thecipal Act. I note that the iTLTB issues a separate form when land outside the rese reserve erve is leased.
4.13 Ms Lal referred to the obiter dicta of Inoke J in Ramode v iTaueki Land Trust Board,(HBC 177 of 2011L) where he stated that it “does not seem logical that consent is required for the reserve land but not the lease land” and “to say that the landowners consent is not required, seems to me to suggest that Board always knows best”.
4.14 The comments of Inoke J are in the best sense argumentative. It was made in a different context altogether, when the Court had to consider whether there was an issue to be tried, in an application for the extension of an interim injunction. The second dictum relied on overlooks the statutory criteria the iTLTB is required to meet when granting a lease, as expounded by the same judge in Volavola v AG, Director of Lands and NLTB, (HBC 88 of 2005L).
4.15 In my judgment, the iTLTB has the discretion to lease native land, in the best interests of the landowners. The Board needs to consult the mataqalis, to satisfy itself, if the land is “beneficially occupied by the .owners” and “is not likely (to)be required by (them)”,as provided in section 9 of the relevant law. Clearly, there is no requirement to obtain the consent of the majority of the landowners.
4.16 In the present case, it is an agreed fact that the iTLTB “was heavily involved in consultation with the Plaintiff Mataqalis and GF(L), resulting in the MOU”, as transpired in evidence and documented in the minutes of the village meetings of 8th and 26th December 2002, and 1stFebruary,2003.
4.17 I am satisfied that the iTLTB held informative meetings with the landowners. PW1, the first plaintiff admitted in cross-examination that prior to signing the MOU, he informed members of his mataqali of the lease. He accepted that it was not practical to call each mataqali separately.PW1 and PW5, the second plaintiff testified that their mataqalis consented to the lease.
4.18 The next matter of importance in this regard, was the ultimate acceptance by the village of the tabua presented by the GFL.
4.19 In my judgment, the lease entered into between the iTLTB and GFL on 20th June,2005,is valid.
4.20 Significantly, PW6,(a member of the Mataqali Vunikavika) said that his mataqali was happy with the lease and the plaintiffs stood by accepting rentals for six years after the lease was executed .
4.21 In my view, it is apparent that these proceedings are a manifestation of the plaintiffs subsequent disenchantment with the lease rentals, as candidly stated by PW5, the second plaintiff. He said that he wanted the rent raised.
4.22 Inow proceed to consider the whether the iTLTB leased the land in the best interest of the landowners.
4.23 Ms Lal, in her closing submissions, has referred to the case of Volavola v AG, Director of Lands and NLTB,(supra) which provides a useful exposition of the law on the duties of trustees . In that case Inoke J stated :
under section 4 (1) of the Native Land TAct "the "the NLTB's duty to act "for the benefit of thian o" /b>" is as foas follows:
4.24 Inoke J cited Sir Robert Megarry V-C in Cowan>Scar<985) Ch 270, 286 to 287 as follows:
:
The starting point is t is the duty of trustees to exe thsir powe powers in the best interests of the present and future bciaficiaries of the trust,he duty160; rust rustees towards their beneficiaries is paramount. .. When the purpose ofof the is t is to provide fide financial benefor tnefics, as is usus usually the case, the best interests s of60;of the benefies are normally tlly their best financial interests. e cas60;of a power &#er of  investmas in the present cent case, the power must be exercised so as to yield the best n forbenefies, jus, judged dged in relation to the risks of the investments intques aon; aon; and the prospects of; the yield of  incom capital appreciationation both have to be considered in judging the return from the investment.
4.25 The evidence of DW1, the principal witness for the defence was that the landowning units never had such a rental income and employment opportunities, with the plaintiffs receiving the biggest share of the lease monies.
4.26 DW1 said that the there was no plan nor development of the land by the plaintiffs, for the last ten years and it was most unlikely that the Mataqali Namara or Mataqali Vico would develop the land.The land belonging to the Mataqali Namara was completely neglected.
4.27 DW1's testimony on these points was not controverted. I accept his evidence.
4.28 It transpired in the evidence of PW1 that the Mataqali Namara has use of their land for raising animals and planting vegetation. As regards the land of Mataqali Vico, rice was planted during an earlier lease. PW1said that the land belonging to Mataqali Namarawas leased to one Ayub. He was in arrears of rental. The minutes of the village meetings provides that the arrears were paid by GFL. That lease had expired.
4.29 Ms Lal, in the cross-examination of DW1 contended that the land could yield $ 196 per acre, if dalo was planted. She also said that rice could be planted.
4.30 The material circumstance is that the land had not been developed and the plaintiffs did not have any plan or proposal to develop the land. Moreover, the six mataqalis had not raised any objections to the proposed lease at the several consultations held before they entered into the MOU with GFL, whereas Mataqali Nabua declined to accept the lease.
4.31 On a review of the evidence in its entirety, I am of the view that the iTLTB acted in the best interests of the landowners, in granting the lease to GFL.
4.32 Before I part with this judgment, I would mention two allegations of breach of trust raised by Ms Lalagainst DW1 (SavenacaRalagi), in his cross-examination. The first allegation is that the iTLTB allowed him to represent the Board in this matter, albeit he was the son of the Turagani Mataqali of the Mataqali Vutuvo. Secondly that that he played a key role in granting the lease to GFL, as he was the owner of two firms: Vunivaivai Village Enterprise and Vunivaivai Security Service that provided wood shavings and security services to GFL.
4.33 I find that these allegations are not pleaded in the statement of claim. There was a necessity to plead the alleged breaches: Belmont Finance Ltd v Williams Furniture Ltd, 1979(1) All ER 118.
4.34 In any event, the plaintiffs have not proved that they have suffered loss, as a result of the alleged breach.
4.35 In my judgment, this action fails. The plaintiffs have not established that they suffered damages, as a result of the lease of their land nor that it was not leased in the best interests of the landowners.
- Orders
- (a) I dismiss the action of the plaintiffs.
- (b) The plaintiffs shall pay the defendant costs summarily assessed in a sum of $ 6500.
9th January,2015
A.L.B.Brito-Mutunayagam
JUDGE
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