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iTaukei Land Trust Board v Kerekerelevu [2016] FJHC 518; HBC108.2015 (7 June 2016)

THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 108 of 2015


BETWEEN : ITAUKEI LAND TRUST BOARD a body corporate duly constituted under the iTauki Land Trust Act [Cap 134].


PLAINTIFF

AND : URAIA KEREKERELEVU of Mataqali Vatuwaqa Kaunikuila (part of).

FIRST DEFENDANT


AND : MATAQALI VATUWAQA of Yavusa Vatuwaqa of Suva.

SECOND DEFENDANT


AND : PERIA SEVENTH DAY ADVENTIST CHURCH of Nacovu (Kaunikuila (part of).

THIRD DEFENDANT


AND : THE PRESIDENT, SEVENTH DAY ADVENTIST CHURCH OF FIJI of Lami, Suva.

FOURTH DEFENDANT


BEFORE: Master Vishwa Datt Sharma


COUNSELS: Ms. Komaiti - for the Plaintiff

Ms. L. Tabuakoro - for 1st & 2nd Defendants

Ms. T. Leweni - for 3rd Defendant


Date of Hearing: 23rd February, 2015

Date of Ruling: 07th June, 2016 @ 11.30 am.


RULING


(Application to Strike out and Dismiss the Plaintiffs Writ of Summons & Statement of Claim
by the First, Second and Third Defendants pursuant to Order 18 Rule 18 (1) (b) & (d)
of the High Court Rules, 1988 and the inherent jurisdiction of the Honourable Court.)


INTRODUCTION


  1. On the outset, it is pertinent that I draw to the attention of the Plaintiff to the fact that when counsel for the Plaintiff Ms Raitamata appeared in Court on 10th September 2015, she informed court that the Plaintiff will withdraw the claim against the 4th Defendant and file a Notice of Discontinuance. Court Record reveals to date no notice of discontinuance has been filed.
  2. The First, Second and Third Defendants filed and served a Summons to Strike out and Dismiss the Plaintiff’s Writ of Summons and the Statement of Claim filed on 07th April, 2015 and sought for the following orders-
  3. This application was made pursuant to Order 18 Rule 18 (1) (b) and of the High Court Rules 1988 and the Inherent Jurisdiction of the Honourable Court.
  4. The application was filed in support of an Affidavit deposed by Uraia Kerekerelevu.
  5. The Plaintiff filed its Affidavit in Opposition to the Defendant’s application.

Plaintiff’s Case


  1. The Plaintiff commenced proceedings against the Defendants on 26th February, 2015 and sought for the following Orders-
  2. The subject land is known as Nacovu Park registered under the Register of iTaukei Lands Folio 1249 (Volume 7). The land is excluded from itaukei reserve and therefore the consent is legally required or necessary for the Board to deal with the land. The land belongs to the members of Yavusa Vatuwaqa (Clan).
  3. The 1st Defendant is a member of the Peria Seventh Day Adventist Church and also a member of Tokatoka Namalaivo belonging to Mataqali Vatuwaqa and Yavusa Vatuwaqa.
  4. The 2nd Defendant is one of the Mataqali that owns the subject land.
  5. The 3rd Defendant, Peria Seventh Day Adventist Church is the church branching from the 4th Defendant which has allegedly unlawfully erected a substantial structure or a church building on the subject land without the consent of the Board.
  6. The 4th Defendant, President of the Seventh Day Adventist Church of Fiji is a religious organization registered under the Religious Bodies Registration Act Cap 68. The 4th Defendant is the parent body of the 3rd Defendant.
  7. The subject land has been earmarked by the Board for development purposes that will yield benefits to the members of the land owning units.
  8. The Board has engaged with a prospective developer to develop the subject land and the current illegal occupation and construction of the church structure by the 1st and 3rd Defendants have prevented the Board from conducting further dealings with regards to the subject land.
  9. The 3rd Defendant has unlawfully built the improvement or a church structure without consent of the Board or obtained a proper lease and therefore has no right to occupation of the subject land.
  10. The Plaintiff stated that the Claims and the orders sought against the Defendants is not scandalous, vexatious and frivolous and therefore not an abuse of the Court process.

Defendant’s Case

  1. The 1st names Defendant deposed an affidavit on behalf of the 1st, 2nd and 3rd Defendants in his capacity as a Trustee of Mataqali Vatuwaqa in its Deed of Trust.
  2. The 1st Defendant has been residing at Nacovu Park with his family since 1997, constructed a dwelling home together with several other members of the Mataqali Vatuwaqa, the 2nd named Defendant.
  3. The 1st Defendant is the registered member of the 2nd Defendant in the ‘Vola ni Kawa Bula’ of Mataqali Vatuwaqa of Yavusa Vatuwaqa of Suvavou Village.
  4. Nacovu Park is the ancestral site or ‘yavutu’ of Mataqali Vatuwaqa of Yavusa Vatuwaqa of Suvavou Village. That prior to the resettlement of the Vatuwaqa people to the current location of Thurston garden and the President’s residence in Suva, members of the Yavusa Vatuwaqa were the original inhabitants of Nacovu Park.
  5. That the said land was acquired by the State for public utility pre-Cession and sometimes in 1989, the 2nd Defendant became aware that the public use of the said land ceased and the Lands Department was intending to develop the said land for civic purposes.
  6. The 2nd Defendant subsequently made an application to the Lands Department for the reversion of the said land to it and there was a cabinet decision in 2003 for the reversion of the said land to the Yavusa Vatuwaqa, of which Mataqali Vatuwaqa is part of.
  7. The 2nd Defendant is still actively engaged with the Office of the Prime Minister and Attorney General in amending the proclamation gazetted on 11th April, 2011 in which the current ownership of the land rests with the Yavusa Vatuwaqa. Reference is made to annexure ‘UK2”- Proclamation No. 1 of 2007. That the Plaintiff is aware of this.
  8. That the Chairman of iTaukei Lands and Fisheries Commission on 17th June, 2014 registered the said land under folio 1250 to the Yavusa Vatuwaqa of Suvavou Village.
  9. The striking out of Plaintiff’s Statement of Claim is made because it is unlawful and the Plaintiff is in breach of its duty.
  10. That no consultation or consent has been sought from the Defendants regarding any development plans as alleged by the Plaintiff.
  11. The Writ issued by the Plaintiff tantamount to an abuse of process because the Plaintiff intends to alienate land which is our home without any due regard to our right, as the landowner(s) or our welfare.
  12. The construction of the Church by the 3rd Defendant is for the benefit of the Seventh Adventist Church.
  13. The actions of the Plaintiff is also unconstitutional because it is affecting my right to religion as well as other members of the 2nd Defendant in exercising its freedom of religion by constructing a Church.
  14. The Plaintiff doesn’t have any consent from the 2nd Defendant and its members to commercially develop Nacovu Park because it is our ancestral site.
  15. The action of the Plaintiff is is culturally insensitive and offensive and we have raised this serious issue with the Office of the Prime Minister as Chairman of the Plaintiff.
  16. That the registered land owner for Nacovu Park is Yavusa Vatuwaqa and discussions are ongoing for further amendment with other government bodies of the current position and that is, that the land is owned by the Yavusa Vatuwaqa.
  17. Seeking the striking out of the Plaintiff’s Statement of Claim with costs.

ISSUES


  1. There are Two (2) main issues which require determination by this honourable court:
  2. In order to address the above issues at (a) and (b), it is necessary to visit the relevant principles regarding the striking out of application, and then determine the issues at (a) & (d) - whether the Plaintiff’s Writ and the Statement of Claim be struck off and Dismissed and that the Defendants be at liberty to enter judgment for his costs including the costs of this application.

LAW ON STRIKING OUT OF APPLICATION


  1. The Application to strike out has been made pursuant to Order 18 Rule 18 (1) (b) & (d) of the High Court Rules 1988 and the Inherent Jurisdiction of the Honorable Court.
  2. 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, on the ground that:

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


(2) No evidence shall be admissible on an application under paragraph 1(a).

(Since this application is filed pursuant to Order 18 Rule 18 (1) (d) only, this court will therefore confine its determination to Rule 18 (1) (d) only)

(Underline is mine for emphasis)


  1. In dealing with the issue of striking out of application, I bear in mind the following passage from Halsbury’s 4th Ed. Vol. 3 at para 435:

“The power to strike out, stay or dismiss under the inherent jurisdiction is discrery. It is a jurisdiction, which will be exercised with great circumspection and only where here it is perfectly clear that the plea cannot succeed, it ought to be exercised sparingly and only in exceptional cases. However, for this purpose the court is entitled to inquire into all the circumstances of the case, and to this end affidavit evidence is admissible.


  1. In the case of Khan v Begum (2004) FJHC 430; HBC0153.2003L (30 June 2004) Justice Connors discussed 18 (1) (a) and (d) where he held that;

“It is said that the fact the court has this inherent jurisdiction is one of the characteristic which distinguishes the court from other institutions of the government. It is a jurisdiction, to be exercised summarily and as I have said, is in addition to the jurisdiction conferred by the rules. It is not in issue that if a party relies solely upon Order 18 rule 18 there no evidence may be considered by the court in making its determination but that limitation does not apply where the applicant relies upon the inherent jurisdiction of the court.”


  1. In National MBF Finance (Fiji) Ltd v. Buli Civil Appeal No. 57 of 1998 (6 July 2000) the Court stated as follows:-

"The Law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the Courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention. It follows that an application of this kind must be determined on the pleadings as they appear before the Court...."


Analysis and Determination


  1. The Defendants did not file any Defence rather thought fit in the circumstances to file a Summons with an Affidavit in Support seeking for the Plaintiff’s Writ of Summons and the Statement of Claim be struck out on the grounds that it is scandalous, frivolous or vexatious and that it is otherwise an abuse of the process of the Court.
    1. Whether the Plaintiff’s Claim is scandalous, frivolous or vexatious- (Order 18 Rule 18 (1) (b)-

Scandalous


  1. The Supreme Court Practice 1993 (White Book) Vol. 1, at paragraph 18/19/14, it is states as follows:-

"The Court has a general jurisdiction to expunge scandalous matter in any record or proceeding (even in bills of costs, Re Miller (1884) 54 L.J.Ch. 205). As to scandal in affidavits, see O.41, r.6.


Allegations of dishonesty and outrageous conduct, etc., are not scandalous, if relevant to the issue (Everett v. Prythergch (1841) 12 Sim. 363; Rubery v. Grant (1872) L.R. 13 Eq.443).

“The mere fact that these paragraphs state a scandalous fact does not make them scandalous" (per Brett L.J. in Millington v. Loring (1881) 6 Q.B.D. 190, p.196). But if degrading charges be made which are irrelevant, or if, though the charge be relevant, unnecessary details are given, the pleading becomes scandalous (Blake v. Albion Assurance Society (1876) 45 L.J.C.P. 663)."


  1. The Defendants contention is that the Plaintiff has chosen to bring this substantive claim by a Writ action instead of an Originating Summons as per Order 5 Rule 3 of the High Court Rules, 1988 and therefore has caused injustice to the Defendants.
  2. Section 15 of the Native Land Trust Act Cap 134 deals with native reserve and the Native Land Register confirms the said land is a Native Land.
  3. TLTB is trying to remove the Landowners and develop the said land by alienating this Native Land. Adding that the intention of the Legislature in terms of section 9 of the Native Land Trust Act Cap 134 is that this land is put aside for the iTaukei.
  4. The Defendants have not been able to specifically show and or establish the fact that any particular part of the Writ or the Statement of Claim is/are scandalous in nature.
  5. At this stage of the interlocutory proceedings which is a summary proceedings, it is too early in the stage to ascertain whether there are irrelevant facts pleaded together with unnecessary details given within the Plaintiff’s Statement of Claim that would tantamount to the pleadings becoming scandalous.

Frivolous or Vexatious


  1. Reference is made to the Supreme Court Practicec1993, Vol. 1 (White Book) at paragraph 18/19/15 it is stated:-

"By these words are meant cases which are obviously frivolous or vexatious or obviously unsustainable per Lindley LJ in Attorney General of Duchy of Lancaster v. L. & N.W.Ry [1892] UKLawRpCh 134; [1892] 3 Ch. 274, 277’ ... The Pleading must be "so clearly frivolous that to put it forward would be an abuse of the Court" (per Juene P. in Young v. Halloway [1894] UKLawRpPro 42; [1895] P 87, p.90; ...."


  1. The Oxford Advanced Learners Dictionary of Current English 7th Edition defines "frivolous" and "vexatious" as:-

Frivolous: "having no useful or serious purpose"

Vexatious: "upsetting" or "annoying".


  1. It has been said that the Court will not permit a plaintiff to be "driven from the judgment seat" except where the cause of action is obviously bad and almost incontestably bad (per Fletcher Moulton L.J. in Dyson v. Att.-Gen. [1910] UKLawRpKQB 203; [1911] 1 K.B. 410, p.419). On the other hand, a stay or even dismissal of proceedings may "often be required by the very essence of justice to be done" (per Lord Blackburn in Metropolitan Bank v. Pooley (1885) 10 App. Cas. 210, p.22) so as to prevent parties being harassed and put to expense by frivolous, vexatious or hopeless litigation (cited with approval by Lawton L.J. in Riches v. Director of Public Prosecutions [1973] 1 W.L.R. 1019, p.1027; [1973] 2 All E.R. 935, p.942).

Thus the Court has a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances known relating to the offending plea: Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 3) [1970] Ch. 506.


  1. Therefore, bearing in mind the above, for the claim to be frivolous or vexatious the Applicant/Defendant(s) in this case must establish that the claim lacks merit (i.e. has no useful purpose) and is only to upset or annoy the Applicants/Defendant(s).
  2. The Plaintiff by their substantive action are seeking for an order that the Defendants to immediately dismantle the improvement or structure built on Nacovu Park registered under the Register of iTaukei Lands Folio 1249 (Volume 7), and vacate the said land forthwith within 30 days.
  3. Further the Plaintiff states that Defendants do not hold any lease. Licence or authority from the iTLTB Board, and despite being served with notices, the Defendants continued with the illegal occupation and possession of the said land and further hindered the development on the subject land and therefore jeoparding the benefits and the returns to the landowners as a whole.
  4. The Plaintiffs Statement of Claim reveals a mixture of basic and comprehensive facts on the impending issues that are relevant for Court’s determination. Therefore, the claim cannot be said to be frivolous and vexatious.

Abuse of Court Process


  1. Order 18 Rule 18 (1) (d) – Whether the Plaintiffs Claim is otherwise an abuse of process of the court-

It is well settled that this Court has inherent jurisdiction to strike out the claim or pleadings for abuse of Court process and reference is made to paragraph 18/19/18 of the Supreme Court Practice 1993 Vol. 1.

At paragraphs 18/19/17 and 18/19/18 of Supreme Court Practice 1993 (White Book) Vol 1 it is stated as follows:-

"Abuse of Process of the Court"- Para. (1) (d) confers upon the Court in express terms powers which the Court has hitherto exercised under its inherent jurisdiction where there appeared to be "an abuse of the process of the Court." This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation (see Castro v. Murray (1875) 10 P. 59, per Bowen L.J. p.63). See also "Inherent jurisdiction," para.18/19/18."

"It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the issue of fraud after the self-same issue has been tried and decided by the Irish Court (House of Spring Gardens Ltd. v. Waite [1990] 2 E.R. 990, C.A)."

"Inherent Jurisdiction - Apart from all rules and Orders and notwithstanding the addition of para.(1)(d) the Court has an inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or an abuse of its process (see Reichel v. Magrath [1889] UKLawRpAC 20; (1889) 14 App.Cas. 665). (para 18/19/18).


  1. Further reference is made to the case of Timoci Uluivuda Bavadra v The Attorney GeneralRooney J said:

“I am not required to try any issues at this hearing. All I have to decide whether the an issue to be tried. It i It is not enough for the defendant to show on this application that the plaintiff’s case is weak and unlikely to succeed”.

  1. The following passage from the judgment of Court of Appeal in National MBf Finance (Fiji) Limited v Nemani Buli<(Civil Appeal peal No. ABU 0057 of 1998) very clearly enunciated and determined the principles of striking out. At page 0;

“The law with regarregard to d to striking out pleadings is not in dispApart from truly exceptional cases the approach to such applications is to assume that the the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention...”


  1. In Halsbury's Laws of England Vol 37 page 322 the phrase "abuse of process" is described as follows:

"An abuse of process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or endorsement does not offend any of the other specified grounds for striking out, the facts may show it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or endorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court."


  1. The phrase "abuse of process" is summarized in Walton v Gardiner (1993) 177 CLR 378 as follows:

"Abuse of process includes instituting or maintaining proceedings that will clearly fail proceedings unjustifiably oppressive or vexatious in relation to the defendant, and generally any process that gives rise to unfairness"


  1. In this case, the Counsel representing the Defendants to the proceedings raised legal issues as well as disputed facts. Further, the Counsel submitted that TLTB is trying to alienate the Native Land and that the real intention of the Legislation is that the Native land including the current land in question of this proceedings should be put aside for the iTaukei. She also labored on sections 9 and 15 of the Native Land Trust Act Cap 134.
  2. The Plaintiff’s Counsel on the other hand submitted that the allotment of the subject land to Yavusa Vatuwaqa has been gazette as per ‘EM6’. Proclamation No. 2 of 2007 stating the allotment of the subject land is made pursuant to Section 18 of the Native Land Trust Act Cap 134. The Land owning unit identified is Yavusa Vatuwaqa, not Mataqali Vatuwaqa therefore the subject land belongs to all Mataqali and not exclusively to Mataqali Vatuwaqa.
  3. The issue in this case is the building of the church belonging to the 3rd Defendant, Peria Seventh Day Adventist Church which was not consented to by the Plaintiff. According to the Plaintiff if any consent was given by the 1st and 2nd Defendants to the 3rd Defendant, then it would be void in the circumstances.
  4. Bearing in mind the above, the legal issues and disputed facts being raised on the facts as pleaded, then the courts will not strike out the pleadings or claim of the Plaintiff as sought for herein by the Defendants.
  5. It is appropriate in this circumstances to make reference to the case of Naco –v- Colonial Mutual Life Assurance Society Ltd [2004] FJHC 357; HBC 0413.2003 (11 March 2004), the High Court had cited the case of Reid –v New Zealand Trotting Conference [1984] 1 NZLR 8 on the abuse of process:

“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 inferent jurisdiction of the High Court, and on appeal; this Court, to take such stelps as are considered necessary in a particular case to protect the processes of the court from abuse. (See particularly Moevao v Department of Labour [1980] 1 NZLr 464 and Taylor v 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’ processes are fairly used and that they do not lead themselves to oppression and injustice. The jurisdiction 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.”


  1. The Plaintiff submits that the Plaintiff has not abused the Court’s process as this is the only action it has filed against the Defendants and seeking orders that the Defendant to dismantle the improvement on the land built on the portion of the land earmarked for development.
  2. The summary procedure should not be used to determine the “abuse of process of the court’, rather the matter to be heard to determine the issue within the writ making a claim whether it is groundless and unfounded in the sense that the plaintiff does not know of any facts to support it.
  3. For the aforesaid rational, I make the following orders:-

ORDERS


(a) That the Defendants application filed on 07th April, 2015, seeking to strike out the Plaintiff’s Writ of Summons and the Statement of Claim is hereby Dismissed.

(b) The matter is now adjourned for court’s further directions on the substantive application on a date to be assigned.

(c) The Defendants to pay costs summarily assessed at $1,000.

Dated at Suva this 07th Day of JUNE, 2016


...............................................................
MR VISHWA DATT SHARMA

Master of High Court, Suva


cc: Ms .Komaiti of TLTB, Suva-for the Plaintiff.

Ms. L. Tabuakoro of K. Law- for 1st & 2nd Defendants.
Ms. T. Leweni of TL Lawyers, Suva- for the 3rd Defendant


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