Gulf Seafood (Fiji) Ltd v Itaukei Land Trust Board [2016] FJHC 263; HBC472.2007 (13 April 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 472 OF 2007

BETWEEN:

GULF SEAFOOD (FIJI) LIMITED, a duly registered company having its registered office at KPMG, Level 5, ANZ Building, Victoria Parade, Suva.

PLAINTIFF

AND:

ITAUKEI LAND TRUST BOARD a body corporate duly constituted under the iTaukei Land Trust Act (Cap. 134)

DEFENDANT

Counsel : Mr. S. Inoke & Mr. E. Maopa for the Plaintiff
Ms. L. Komaitai for the Defendant
Date of Hearing : 1st, 2nd, 3rd June, 2015
Date of Judgment : 13th April, 2016

JUDGMENT

INTRODUCTION

1. The Plaintiff commenced this action on the 3 October 2007 against the Defendant allegedly claiming that the Defendant was negligent in issuing an Agreement to Lease (AL) over iTaukei (native) reserve land as Culanuku (part of) in the Tikina of Batiwai in the Province of Serua (containing an area of 3.7511 hectares) without the consent of the landowners. The Plaintiff claimed that due to the negligence of the Plaintiff it had suffered loss in the sum of $28,974,540.00. The Defendant while denying the said claim had also counter claimed for a sum of $103,530.22 for rental arrears under AL. The Plaintiff had approached the land owners directly and had discussions about their project and had promised certain conditions that would be included in their prospective agreement with the Defendant. These conditions included issues relating to the employment of the villagers, the development of the play grounds and also sharing of the income depending on the harvest.
   

FACTS

2. The Defendant is a statutory creature created under the iTaukei Land Trust Act (Cap 134;) it is mandated with the control and administration of itaukei land for the benefit of the itaukei landowning unit.
   
3. The Defendant had filed its Statement of Defence and Counter-Claim on 16 October 2008.
   
4. The Plaintiff had filed its Amended Statement of Claim on 10 February 2012 with the amended claim of $28,974.540, Damages and Interest at the rate of 12% per from 2002.
   
5. The Defendant has filed its Amendment Statement of Defence on 25 July 2012.
   
6. The Pre-Trial Minutes Conference was filed on 26 September 2014. The following facts were agreed (see the pre trial conference minutes contained in the copy pleadings)
   
   1. The Plaintiff was a limited liability company and was mainly involved in the pawn farming.
      
   2. The Defendant was the trustees in terms of Section 3(1) of the Native Land Trust Act (Cap134) and control of the native lands in terms of Section 4 of the said Act was with the Defendant.
      
   3. On 2nd May,2002 the Defendant's Board issued an Agreement to Lease in favour of the Plaintiff Company for 50 years commencing from the 1st April, 2002 over native land known as Calunuku (part of in the Tikina of Batiwai Province of Serua containing an area of 3.7511 ha of native land (subject to survey).
      
   4. Mataqali Lawavolo instituted proceedings against the Defendant Board and the Plaintiff Company's CEO Mr. Roger Black in Civil Action No 174 of 2006 in the High Court of Suva, claiming among other reliefs a sum of about $22,000, being alleged outstanding arrears of rental by the Plaintiff Company to Mataqali Lawavolo.
      
7. The Plaintiff had called one witness, the Company Director of the Plaintiff, Mr. Roger Black. He was the Director of the Gulf Seafood and Chief Executive Office. Mr. Black in his evidence told that the idea of prawn farming in Fiji was put to him by one Ishwar Narayan. Initially he was to take over of non-functioning prawn farm at Dreketi, Vanua Levu belonged to the Ministry of Fisheries. He had visited that place but was not happy with one aspect of the project, namely the water supply to the prawn farm, and the proposal for taking over did not eventuate.
   
8. Later, a person he had met a person by the name of Gun, in Pacific Harbour, he indicated that there was a land suitable for prawn farming and showed him that piece of land in Culanuku. Mr. Black in his evidence had stated that the site at Culanuku was a good site for prawn farming and it was close proximity to a prawn hatchery. But later he had found that said prawn hatchery was not functioning.
   
9. The Culanuku site was a good location and the person who took him to the land also had contacts with the chief or elders of area and they were more than happy and willing to allow him to build prawn farm in that location.
   
10. There was a meeting with the landowners and he had explained to them the plans for that site and after discussions with the said group a document was signed between him and the land owners setting out the requirements of the landowners, to be included in any future lease with Defendant and the Plaintiff. This document was marked as D4 with the heading 'Conditions to Attach to a Lease Agreement.' This document was part of D2 as well. D2 was a letter dated 21st February 2002, from Mr. Roger Black, the only witness for the Plaintiff to Mr. Maika Qarikau, the General Manger of Defendant. To the said letter annexed a study and feasibility of the Shrimp Project and also said 'Conditions to Attach to a Lease Agreement' signed by both parties.
    
11. That the Defendant had issued an AL to the Plaintiff. (Tab 15 of Defendant's Bundle of Documents) Mr. Black had accepted this document in his evidence and marked as P1.
    
12. In late 2001 and early 2002, he had met with the former General Manager of the Defendant and that he was to get the consent form and have it signed by the Mataqali members. He was unable to state how many consented and no copy of the said signed document with the Plaintiff's witness. The document produced by the Defendant and marked D8 had only signatories to the said consent form, but Mr. Black said there was another consent form he was shown by official of Defendant. The person who had written names in the said document gave evidence for the Defendant and he admitted this document as the document where the villagers signed, consenting to the lease.
    
13. In his evidence Mr. Black had stated that in the second (2nd Meeting) Qarikau stated that the Consent Form needed to be signed by the Mataqali. He also stated that Qarikau was the General Manager at the time and he had attended that meeting with a staff from the Board, but later he was employed by the Plaintiff and he had attended meetings on that basis.
    
14. An AL was issued, but there was a delay in this and the Plaintiff was eager to sign it as the Plaintiff started to clear the land and start construction before AL.
    
15. According to Mr. Black in 2003, a staff from the Defendant, by the name of Rota Lalabalavu had approached him and asked him to obtain signatures for consent again as the original consent has been lost, but he informed her that the Defendant should obtain the consents from the land owners for the lease. This position was denied by the Defendant.
    
16. Mr. Black was shown the 'Consent Form' signed by the Mataqali Members marked as D 8 but, he had stated that was not the original consent form that was signed in the village. He later stated that after the first consent was obtained, the lease was issued and there was only one instance where consent form was signed. After the draft AL was given to him by the Defendant he had consulted a legal firm about the said AL.
    
17. When asked if the operation commence after the issuance of the lease, Mr. Black informed the court that the equipment had been moved into the site and clearing had already begun. This fact was confirmed by the Defendants witnesses and also documents
    
18. Mr. Black referring to the Plaintiff "Exhibit P2" gave a description of how prawn farming was done. Initial stage the Plaintiff expected to build 10 ponds, but only 4 were completed. Mr. Black also submitted that the 1st crop was in 20003 and it took 5 months to grow and harvest was made on the same year. He had further stated that the Government Hatchery at Galoa which was situated near to the prawn farm could not cater to their requirements as the adult prawns did not breed and the reason for the infertility could not be established though they have sent a sample to Hawai (USA). Mr. Black gave evidence that they had bought Black Tiger prawns from Brunei, as it was considered decease free for the said larvae. In 2003, there was close to 9000kg from the first harvest and the second crop in 2004 which weighed over 9000kg.
    
19. Mr. Black stated that after the visit from Rota Lalabalavu, there was lots of interference from the landowners that affected the operation.
    
20. He stated that he would not pay any lease rental, until the lease was issued. He further stated that the shed and his home were burnt down and as a result all company records were all burnt down including company receipts.
    
21. When he was asked about the land tenure in Fiji stating that he did not know of the land tenure but he had engaged a law firm to find out the legality of the draft AL. He had also engaged some consultants for the work and he had wide experience in this field in various countries. Before he went to Defendant he had met one Ratu Gun, who took him to the land and did initial meeting with the elders of the land owners. The Plaintiff also had the assistance of another person by the name of Ishwar, who was instrumental in bringing him to Fiji.
22. Mr. Black had stated that the land tenure was not mentioned to him at any-time during the meeting. Evidence in Chief by the two landowners, Saviri and Sikeli was that the reserve status of the land was part of the discussion, from the beginning.
    
23. In the evidence in chief by the Board Deputy General Manager Operations, Research and Development, Mr. Solomoni Nata, he had stated that application can be made first to the Board (Defendant) and where the Board will consult the landowners and obtain the consent for the leasing of their land. The process also allows for applicants to approach the landowners first, seek their approval, obtain their consent and then later apply to the Board. In this instance the second method was employed and a AL was issued. He blamed the Defendant for the failure of the project.
    
24. Mr. Black has stated that the Kuwait Company had stopped funding in 2004 due to his advise, but there was no such documentary evidence presented. For lack of any documentary proof, Mr. Black made the arson, the scapegoat. It should be noted if he informed the financiers not to fund it would have been recorded in the documents of investor, who presumably in another country and he could have retrieved from them. These documents cannot be subject to arson.
    
25. The Board's witness, Estate Officer Mr. Autiko Qasevakatini and Mr. Nata both confirmed that the AL was a legal document and the lease was lawful. The Agreement for Lease was issued subject to de-reservation and was issued for administrative and commercial purposes prior to the issue of a lease in terms of the Native Land Trust Act (Cap 134). There was no provision in the said Act that deals with agreements to lease, but this aspect is covered in the Regulations issued in terms of Section 33 of the Act (Cap 134).
    

26. They called 6 witnesses, their names were as follows:

• Mr. Saviri Vunikailevu - Member of Mataqali Lawavolo
• Mr. Isikeli Tabailagi - Member of the Mataqali Lawavolo
• Mr. Sowane Sauturaga - Mataqali Lawavolo Reps
• Ratu Emori - Officer of the Galoa Fisheries
• Mr. Autiko Qasevakatini - Estate Officer of the Defendant
• Mr. Solomoni Nata - Deputy General Manager Operations Research and Development
  

27. Saviri Vunikailevu was a landowner belonging to Mataqali Lawavolo. Mr. Roger Black and Dr. Alex Forbes came to the village and he met them. They had come to have talks with the Mataqali to give a piece of land. Other Mataqali members were present in that meeting and that there was not TLTB staff present during that meeting.
    
28. He further stated that during the proposal by the Company, part of the agreement with the company was that they were to be given the 5% of the gross income, the company was also to help level a playground and provide employment for the landowners. They also discussed that the prawn project will bring a lot of money. The villagers were happy with the proposal due to the economic benefits that will attach with the leasing of the subject land.
    

29. Saviri further stated that when the consent was given, Mr. Roger Black was present and that Qarikau was also present during that meeting. The witness identified D8. He was shown a letter dated 24 June 2005 (D3) address to the Chief and elders of Culanuku village and he confirmed that the letter was received from Roger Black and that he was interested in continuing with the lease even as late as 2005.

30. Isikeli Tubailagi, stated he knew of Roger Black and that he came to Culanuku talking of the development that will be done in Culanuku, and the land owners were happy because it was a big development to their village as there was no development in the village. The villagers have their verbal consent and then later on in another meeting they signed their written consent. Sikeli also verified that Mr. Qarikau was present in the meeting when their consent was obtained. However, he further stated that a lot of things promised to them in the meeting were not delivered by Roger Black or the Company.
31. According to him the land owners had a good relationship with Roger Black because he was going to do a lot of good things for the village but lot of things that were promised to them were not done.
    
32. The things that were not done included the packing facility to be located in the leased area within the farm. This will create employment for the villagers and also an idea about the harvest. The Packing Facility was important to the land owners as their promised 5% Gross Receipts were relied on to be paid by the Plaintiff.
    
33. The Defendant had transported the prawns to a weighing facility in Suva for the prawns to be weighed without any representative from the land owners. Isikeli had stated that the problems that they had faced were mainly due to the false promises by the Plaintiff.
    
34. Sikeli was asked whether the villagers had stopped Roger Black or the Company from operating and he had stated that the villagers did not stop Roger Black or the Company from operating the prawn farming until they were told that the company was bankrupt.
    
35. Sowane Sauturaga was the 3rd witness for the Board and he had witnessed the consent form and confirmed his signature and that was the only form that was signed. Sowane was a representative of the Mataqali members at the meeting. He also stated that at the time when the signatures were obtained he saw Qarikau present at that meeting. Mr. Qarikau in that meeting had disclosed that the proposed land was under reserve land and if the owners approve, the land to be placed outside reserve and during this meeting Sowane had witnessed their approval. Exhibit D6 was shown to Mr. Sowane and he recognizes the document as the document that he had witnessed.
    
36. He also confirmed that he had written to the Defendant on several occasions. He confirmed the letters dated 7 February 2002(D8), where he was seeking the assistance of the Defendant to formalize the lease process. The letter had also indicated that consent has been given for the land to be placed outside reserves. In his evidence he had also confirmed that the landowners had given their approval for the leasing of their land. He further added that the social economic standard of living in the village was very poor and therefore they welcome the idea of having prawn farming as the benefits associated with the farm would improve their socio economic status.
    
37. Again a letter dated 15th February 2002 (D9), he had represented the Mataqali requesting that the effecting dated for the leasing their native land to be effective from 11th November 2002. He was later asked whether he meant 11th November 2001 as his letter is dated 15th February 2002. He confirmed that the actual work had begun by that time.
    
38. This also confirmed the position that the actual project had commenced even before the signing of the AL. Within 5 days another letter was written and this letter dated 20th February 2002 referring to their earlier requests.
    
39. Mr. Sowane confirmed receiving a letter from the Defendant, dated March 4 2002 (D10), the information received from the Defendant was relayed to the Mataqali members. The reply to D10 put the blame on Plaintiff for the delay and also informed that they were unaware of project work commencing on the site.
    
40. Another letter dated 10th March 2002 (D 11) by Sowane, insisting that the Board issues the lease as soon as possible. The letter had also indicated that even prior to the issuance of the offer in April 2002, the Gulf Seafood Company had already commenced work and also employed landowners on their project farm.
    
41. Sowane was referred to "D7" the inspection reported compiled by the Board. He recalls seeing the officer from the Board at the meeting on 9th April 2002. On the relationship with Mr. Black he had stated that the relationship with Mr. Black was good at the initial stages. However after some time he had not received favourable comments of the project and he said he was sad about it. So he wrote to the Defendant, requesting a copy of the AL (D12).
    
42. Sowane also gave evidence that the land owners had approached Mr. Black regarding their complaints. Sowane had also written a letter on 8th June, 2004 (D13) regarding 4 specific issues. The letter had indicated their dissatisfaction on how the Plaintiff Company had treated them regarding FNPF, lease rentals, failure to fence the burial grounds and Mr. Black's false promises.
    
43. Ratu Emori of the Galoa Fisheries Department confirmed that he had taken the representative of the Plaintiff to the site. He also stated in his evidence that the Plaintiff did not provide any data regarding the production it was making from the harvest. He also confirmed that the Galoa Fisheries had supplied the Plaintiff Company the baby prawns to the Defendant in 2003 and 2004 without any payment.
    
44. He was cross-examined on whether the Plaintiff company could have obtained overseas supply, he agreed but stated that Bio Security needed to approve that first.
    
45. The Estate Officer of the Defendant, Autiko Qasevakatini, he gave evidence that he was tasked to conduct an inspection and consultation on the 9th April 2002. The AL was subject to de-reservation and according to him, the Plaintiff was aware of the reserve status of the land and that he was reminded to obtain additional consent.
    
46. The Deputy General Manager Operations of the Defendant, Solomoni Nata gave evidence and stated that the Plaintiff Company was in financial difficulty and this was the reason for non payment of rentals in terms of AL.
    

ANALYSIS

47. The Plaintiff's contention was that the Defendant had failed to fulfil its obligations in terms of the Section 17(1) of the iTaukei Land Trust Act (The Act)(Cap 134). It reads as follows
    

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.

(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.

(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.(emphasis added)

48. It was an admitted fact the land contained in AL was a reserved land in terms of the Act. This fact was realised very early in the negotiations and was revealed to Mr. Black by the officials of the Defendant.
    
49. The Inspection Report marked D7 indicate that 9th April, 2002 when the project inspection was carried out by the Defendant not only Plaintiff's witness Roger Black, but also Ishwar and former General Manager of the Defendant, Maika Qarikau were representing the Plaintiff. Maika Qarikau was at that time an advisor to the Plaintiff. He ought to have explained the Native Reserve to Black and Ishwar. The said report indicates that the de-reservation of the land was discussed during the inspection.
    
50. Sowane in his evidence specifically stated that Maika Qarikau discussed about de-reservation at that meeting held on or around 9th April, 2002. This was long time before entraining in to AL.
    
51. If Mr. Black was unaware of the status of the reserve land in Fiji, he could get legal opinion from a competent person. If he did not do so he cannot plead his ignorance as an excuse. He was a person who had set up such prawn farms in several countries and ought to have known the complexities in the land ownership in different countries. He should have taken due diligence before the initiation of the project and failure to do so cannot be used as a negligent act of the Defendant, when the project failed.
    
52. The Plaintiff's argument was that since the land was not de-reserve before the issue of AL and it was a negligent act of the Defendant. He had not explained why he did not request for de-reservation before AL, and why he did not sought legal advice on this issue. He said that he had already sought legal advice from a law firm regarding the said AL.
    
53. The Plaintiff's contention that there should be a de-reservation prior to AL, was not supported by statutory provision or any case law. In contrary Section 15 the Act states that a lease for a native reserve in terms of Regulation 33 of the Act can be issued.
    
54. The said provision states as follows
    

'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.

(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.(emphasis is mine)

55. For the Plaintiff's said contention, it had quoted sections 16(3)(3) of the Act and it reads as follows;
    

'(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.'(emphasis is mine)

56. In the submissions the parties were unable to show any Regulation issued under the section 33 of the Act, that deals with the 'consent of Fijian owners'. So in default of specific regulation the 'Board may consider appropriate'. In this case the Defendant had not gone to the Fijian owners first, but the Plaintiff had met them and discussed about their project, and had come to an understanding about the specific clauses the Fijian owners desired to be included in the instrument of title. With that the Plaintiff had approached the Defendant and then consent was obtained from about 16 of the Fijian owners. If this was considered 'appropriate' by the board to issue AL, it cannot be considered as negligent act of the Defendant. The Plaintiff had in fact insisted on the issue of the AL, and had even started employing more than 8 people in the project even before the issue of the AL.
    
57. The AL was issued, in terms of Regulations made under Section 33. So AL was issued before the issuance of a lease in terms of the Act, this was a prelude to a formal lease or licence. So, some of the requirements for a lease could be relaxed in terms of the sections 16(1)(c) of the Act by the 'Board'.
    
58. Agreement to lease was issued in terms of the Regulations issued under the Section 33 of the Act. Regulation 12 specifically deals with the Agreement to Lease and states as follows.
    

'Agreements for Leases granted subjected to this regulation

12(1) Where the Board has approved that grant of a lease of native land to any person subject to this regulation, the Board shall cause to be served on that person for execution by him an agreement for the lease of that land, in duplicate, together with a notice in writing stating that the Board has approved the grant of the lease subject to this regulation and requiring that person, before the date specified in the notice in that behalf-

(a) To execute both copies of the agreement and to return one copy thereof to the Board, duly executed; and

(b) To pay to the Board all monies due and payable by that person on or before that date under and in respect of the agreement, whether by way of premium, rent, fees, stamp duty or otherwise.

(2) No tenancy of native land shall be taken to subsist by virtue of any notice served in pursuance of paragraph (1) unless and until all the requirement of the notice as are mentioned in paragraphs (a) and (b) of that paragraph have been complied with, notwithstanding that any person has entered into possession of that land, with or without the consent of the Board and notwithstanding that any rent shall have been received by the Board in respect of that land.

(3) Any agreement for a lease of native land served on any person in pursuance of paragraph (1) shall set out in full the terms, conditions and covenants subject to which the land it to be demised and shall contain-

(a) a description of the land, whether by reference to a plan or otherwise;

(b) a condition to the effect that if that person shall not, within three months of being required to do so by notice in writing served on him by the Board-

(i) engage the services of a surveyor registered under the Surveyors Act to carry out a survey of that land and to prepare a survey in accordance with the regulations made under that Act; and

(ii) produce to the Board evidence satisfactory to the Board that the services of such a surveyor have been so engaged by him;

(c) A condition to the effect that if that person fails or refuses to execute the lease which he has agreed to take pursuant to the agreement within three months of being required to do so by notice in writing served on him by the Board, the agreement shall cease to have effect.

(4) Without prejudice of any right of action or other remedy which the Board may have against any person on whom a notice has been served in pursuance of paragraph (1) in respect of any native land, where that person has failed or refused to comply with all the requirements of the notice as are mentioned in sub-paragraphs (a) and (b) of that paragraph or has failed to comply with any of the conditions of the related agreement for the lease of that land as are mentioned in sub-paragraphs (b) and (c) of paragraph (3), then

(a) if that person or any other person claiming through him has entered into possession of that land, the Board may re-enter into possession, and that person or that other person, as the case may be, shall be liable to pay compensation to the Board in respect of any loss suffered by the Board arising out of the possession of the land by him and in respect of any damage caused by his act or default or the act of default of his servants or agents in connection with such possession; and

(b) any monies paid to the Board by that person or any other person claiming through him in respect of that land by way of rent, premium, fees, stamp duty or otherwise shall be forfeited.

59. The agreement to lease in terms of the said regulation was different from the formal lease or licence, in terms of the Act. Hence, pending a survey and determination of the exact area under an agreement to lease, some kind of exclusive possession was needed to commence the development.
    
60. After a survey and determination of the exact area it could be applied for de-reservation. In the interim an agreement to sale was entered in terms of the Regulation 12 of the Regulations issued in terms of Section 33 of the Act, and in my judgment it was not an illegal document.
    
61. The contention that the requirements in Section 17(1) was a prerequisite for agreement to lease cannot be accepted. If all the requirements for a lease under the Act needed to be fulfilled for an agreement to lease in terms of Regulation 12, there would not be any practical usage of agreement to lease under said Regulation 12. It would be a superfluous exercise.
62. The de-reservation needed to be done after the survey and 'Agreement to Lease' in terms of the Regulation 12 of the Act, was issued 'subject to survey'. The said regulations were made to facilitate issue of agreement to lease for unsurveyed land till a proper survey was done. To de-reserve a survey needed to be done and specific area needed to be excluded. So de-reservation cannot be a prerequisite for an agreement to lease issued in terms of Regulation 12 of the Act, as it was 'subject to survey'.
    
63. Without prejudice to what was stated earlier, the Plaintiff's claim cannot be maintained from the analysis of evidence produced at the hearing. The land owners and specially Sowane, who had represented the villagers were disappointed due to the conduct of the Plaintiff. He said that initially he was very happy about the Plaintiff's project as the village was underdeveloped and villagers were very poor. He also said he had very cordial relationship with Roger Black, but after the project started the Plaintiff and specially Roger Black had failed to keep the promises and the villagers were complaining about them. He had written several letters to the Defendant. The document D13 was specific about following issues and they were
    
    1. Non-payment of rentals for 6 months.
    2. Non fencing of burial ground
    100. Non deduction of FNPF for 2 years.
    4. False promises by Manager Roger Black.
       
64. The said letter was dated 8th June, 2004 and was addressed to the Manager Central Eastern Region, of the Defendant by Sowane and he explained the circumstances under which he wrote this letter. By this time the villagers were not happy with the way the project implementation.
    
65. So, the breakdown of the trust and good relationship between the villagers and the Plaintiff had already started to appear not due to the conduct of Defendant but due to the conduct of Plaintiff. So the Defendant was not responsible for the loss to the Plaintiff.
    
66. The villagers and Defendant were keen to see this project get off the ground, but due to the manner in which it had conducted its activities, specially taking the stock of prawns to another location, without weighing it at the site would deprive the land owners knowing the exact quantity of harvest. No explanation was given for this conduct.
    
67. If there was any impediment for weighing at the farm, at least a representative of the land owner, should have been taken at Plaintiff's expense when the harvest is weighed. The villagers were promised 5% of the gross receipts subject to a minimum of $10,000 for first 10 years. So, weight of the harvest was an important factor that should not have been left only with the Plaintiff.
    
68. The non fencing of burial grounds which could also be a sensitive issue for the villagers considering the local culture and respect for the dead.
    
69. The failure of the project was due to one or more things contained in letter D13 and also break down of trust between villagers and the Plaintiff.
    

CONCLUSION

70. In my judgment the agreement to lease entered between the Plaintiff and Defendant was not contrary Section 15 and 16 and Regulation 12 in terms of the Section 33 of the Act. The Defendant was not negligent in the process of granting the P1 (AL) to the Plaintiff. The Plaintiff's project had failed due to the conduct of the Plaintiff and the villagers have lost trust in the project and according to the evidence of the Plaintiff they had set fire to the store and the residential quarters of the Plaintiff. This had stopped the project.
    
71. The Defendant is counter claiming for arrears of rent. There was no Defence to counterclaim in the copy pleadings. So the counterclaim for $103,530.22 was granted in favour of the Defence.
    

FINAL ORDERS

1. The Plaintiff's statement of claim is dismissed and struck off.
   
2. The Defendant's counter claim for $103,530.22 granted.
   

100. The cost of this action is summarily assessed at $3,500 to be paid by the Plaintiff to the Defendant.
     

Dated at Suva this 13th day of April, 2016

Justice Deepthi Amaratunga
High Court, Suva