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Liangui Wang v China Gezhouba Group (Fiji Branch) Co Ltd [2021] FJHC 360; HBC158.2012 (8 December 2021)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No: HBC 158 of 2012


BETWEEN:


LIANGUI WANG of Simla, Lautoka trading as Fresh Green having its registered office at Valley Road, Sigatoka.
1ST PLAINTIFF


RUIGE TIAN of Lautoka trading as Tian’s Harvest, having its registered office at Kavanagasau Settlement, Sigatoka.
2ND PLAINTIFF


JIE LIU of Nadi trading as Lily Garden, having its registered office at Valley Road, Naduri Village, Sigatoka.
3RD PLAINTIFF


AND:


CHINA GEZHOUBA GROUP (FIJI BRANCH) COMPANY LIMITED
DEFENDANT


Before:
Hon. Chief Justice Kamal Kumar


Counsel:
Ms N. Karan for the Plaintiffs
Mr R. Singh for the Defendant


Date of Judgment: 8 December 2021


JUDGMENT


Introduction

  1. On 8 June 2012, the Plaintiffs caused Writ to be issued with Statement of Claim claiming for special and general damages with interest and costs allegedly arising out of flooding of their farms at Valley Road, Sigatoka on 14 October 2011.
  2. On 17 July 2012, the Defendant filed their Statement of Defence.
  3. On 18 July 2012, Plaintiffs filed Reply to Statement of Defence.
  4. On 21 August 2012, Plaintiffs filed Summons for Directions and on 12 September 2012, being the returnable date of the Summons, Order in terms of the Summons was made.
  5. On 1 August 2012 and 23 October 2012, the Plaintiffs and the Defendant filed Affidavit Verifying List of Documents respectively.
  6. On 12 July 2013, the Plaintiffs filed Application to Amend the Statement of Claim on 1 August 2013, being the returnable date of the Application, by consent Order in terms of the Application was granted and parties were directed to file amended pleadings.
  7. On 6 August 2013, the Plaintiffs filed the Amended Statement of Claim.
  8. On 4 September 2013, the Defendant filed Defence to the Amended Statement of Claim.
  9. On 12 September 2013, the Plaintiffs filed Reply to Defence to the Amended Statement of Claim.
  10. On 23 January 2014, the Defendant filed Summons for Specific Discovery which was heard on 21 may 2014, and adjourned for Ruling.
  11. The Ruling on Application for Specific Discovery was delivered on 12 September 2014, when the Application was refused and dismissed with costs.
  12. On 7 August 2015, Plaintiffs filed Minutes of Pre-Trial Conference between all the parties.
  13. On 19 August 2015, Plaintiffs filed Copy Pleadings and Order 34 Summons.
  14. This matter was listed for trial from 16 to 19 August 2016, which date was vacated and trial dates re-fixed for 21 to 24 March 2017, for Plaintiff’s Counsel to arrange for another Counsel to conduct the trial.
  15. On the same, the Plaintiffs were granted Leave to file and serve Supplementary Affidavit Verifying List of Documents.
  16. On 24 August 2016, the Plaintiffs filed Supplementary Affidavit Verifying List of Documents.
  17. Trial concluded on 23 March 2017.

Background/Undisputed Facts

  1. Background/Undisputed facts are as follows:-

Documentary Evidence

  1. Following documents were tendered in evidence:-
Exhibit No.
Date
Document
P1
15/10/2011
Certificate from Sigatoka Police Station
P2
2/11/2011
Certificate from Sigatoka Police Station
P3
15/10/2011
Photographs
P4
26/6/2008
Certified True Copy of Instrument of Tenancy No. 10819
P5
12/5/2008
Certified True Copy of Instrument of Tenancy No. 10817
P6
6/10/2009
Certified True Copy of Instrument of Tenancy No. 11160
P8
17/8/2011
Photocopy of Certificate of Registration – Lily Garden
P9
3/5/2010
Photocopy of Certificate of Registration – Fresh Green
P10
31/3/2011
Photocopy of Crop Damage Assessment – Ministry of Primary Industries
D1
-
Photocopy of Sigatoka Valley Road Culvert Schedule
D2
21/10/2011
Photocopy of Fiji Road Upgrading Project – Department of National Roads
D3
Photocopy of Google map – Valley Road Sigatoka
D4
-
Photocopy of Sigatoka Valley Road Rainfall Form (Defendant)

Plaintiff’s Case

  1. All the Plaintiffs gave evidence and called four (4) witnesses namely:-
  2. PW1 during examination in chief gave evidence that:-
  3. During cross-examination PW1:-
  4. During re-examination PW1 stated that when he visited farm on 15 October 2011, the culvert was not broken and it (culvert) was new.
  5. PW2 during examination in chief gave evidence that:-
  6. During cross-examination PW2:-
  7. PW3 during examination in chief gave evidence that:-
  8. During cross-examination PW3:-
  9. PW4 during examination in chief gave evidence that:-
  10. During cross-examination PW4:-
  11. During re-examination PW4 confirmed that she had done farm visitation for assessment of damages.
  12. PW5 during examination in chief gave evidence that:-
  13. During cross-examination PW5:-
  14. During re-examination PW5 stated that Statement was given to clarify that Ratu Jone Uluinibau was head of clan and Provincial Council can deal with the Company.
  15. Second Plaintiff during examination in chief gave evidence that:-

Photo No.1: Top Part shows about 50kg of pawpaw valued at $1.25 per kg whilst bottom part shows English cabbage.

Photo No.2: Shows lettuce with loss assessed at $6,000.00 to $7,000.00.

Photo No.3: Shows cucumber with loss assessed at approximately $4,000.00.

Photo No.4: Shows young English cabbage with loss assessed at approximately $1,500 to $2,000.

Photo No.5: Shows matured English cabbage with loss assessed at approximately $4,000.

Photo No.6: Shows tomatoes with loss assessed at approximately $5,000.00.

(xxi) Agriculture Department carried out assessment and valued total loss for all farm at about $95,000.00.
(xxii) He informed the Company about the amount of total loss.
(xxiii) It took about two weeks to one month to clear farm and prepare for next season for English cabbage and two to three months for
tomatoes and cucumber.
(xxiv) He took photo No. 7 at around 7.00am on 15 October 2011, which shows blocked side of the culvert.
(xxv) From his experience if culvert was not blocked, water would have gone through the drain.
(xxvi) Rain water flows through culvert, through drain around Indian Farm and then goes across the road into the river.
(xxvii) This is the second time his farm was flooded and the first time was in January 2009, when there was heavy rain and Sigatoka River burst its banks.
(xxviii) Farm subject to Instrument of Tenancy No. 10819 (Exhibit P4) being the middle farm is owned by his sister Rui Fen Tian trading as Lily’s Garden.
(xxix) At first he said he is the owner of Tian’s Harvest but when shown Instrument of Tenancy No. 10817 (Exhibit P5) he stated owner is Liangui Wang and he (Second Plaintiff) is trading as Tian’s Harvest.
(xxx) Farm subject to Instrument of Tenancy No. 11160 (Exhibit P6) is owned by Liangui Wang trading as Fresh Green.
(xxxi) For Tian’s Harvest, land belongs to Liangui Wang but farm belongs to him.
(xxxii) He has not changed the name on the document and he manages the farm.
(xxxiii) He invests on Tian’s Harvest, Liangui Wang invests on Fresh Green and Rui Fen Tian invests on Lily’s Garden.
(xxxiv) Labour wages are paid as follows:-

Tian’s Harvest - he pays

Fresh Green - Wang pays

Lily Garden - Jie Liu pays

(xxxv) Profit from each farm belongs to the owners of the farm.
(xxxvi) Losses from each farm are borne by owners of each farm.
(xxxvii) As to arrangement about Tian’s Harvest, harvest belongs to him but he has not changed the name.
  1. During cross-examination Second Plaintiff:-
  2. Third Plaintiff during examination in chief gave evidence that:-
  3. During cross-examination Third Plaintiff:-
  4. First Plaintiff during examination in chief gave evidence that:-
  5. During cross-examination First Plaintiff:-

Defendant’s Case

  1. Defendant called two witnesses namely:-
  2. DW1 during examination in chief gave evidence that:-
  3. During cross-examination DW1:-
  4. During re-examination DW1:-
  5. DW2 during examination in chief gave evidence that:-
  6. During cross-examination DW2:-

Issues for Determination


  1. Issue for determination are as follows:-

Whether Plaintiffs are owners of subject vegetable farms in Valley Road, Sigatoka


  1. It is appropriate to look at the ownership issue for each Plaintiff separately.

Liangui Wang trading as Fresh Green - 1st Plaintiff

  1. 1st Plaintiff is the proprietor of business known as Fresh Green (Exhibit P9) (hereinafter referred to as “Fresh Green Farm”).
  2. Fresh Green is in the business of planting and selling vegetables from Fresh Green Farm situated at Valley Road, Sigatoka.
  3. Fresh Green Farm is located on land known as Vakaviwa Lot 6 Tikina of Nokonoko Province of Nadroga/Navosa containing an area of 8.0938 hectares described in Instrument of Tenancy No. 11160 dated 6 October 2009 (hereinafter referred to as “IT 11160”).
  4. 1st Plaintiff being the proprietor of Fresh Green is the lessee of IT 11160.
  5. This Court has no hesitation in making a finding that Fresh Green Farm is owned by the 1st Plaintiff.

Ruige Tian trading as Tian’s Harvest - 2nd Plaintiff

  1. 2nd Plaintiff is the proprietor of business known as Tian’s Harvest (hereinafter referred to as “Tian’s Harvest Farm”).
  2. Tian’s Harvest Farm is in the business of planting and selling vegetables from farm situated at Valley Road, Sigatoka.
  3. Tian’s Harvest Farm is located on land known as Vakaviwa Lot 5 Tikina of Nokonoko Province of Nadroga/Navosa containing an area of 6.0750 hectares described in Instrument of Tenancy No. 10817 dated 12 May 2008 (hereinafter referred to as “IT 10817”).
  4. During examination in chief 2nd Plaintiff admitted that IT 10817 was owned by Lingui Wang and that Tian Harvest Farm is his and he manages.
  5. This Court finds that on 14 October 2011, land on which Tian Harvest Farm (IT 10817) was owned by 1st Plaintiff and not 2nd Plaintiff.

Jie Liu trading as Lily Garden - 3rd Plaintiff

  1. 3rd Plaintiff is the proprietor of business known as Lily Garden (hereinafter known as “Lily Garden Farm”).
  2. Lily Garden Farm is in the business of planting and selling vegetables from farm situated at Valley Road, Sigatoka.
  3. Lily Garden Farm is located on land known as Naduri (part of) Tikina of Nokonoko Province of Nadroga/Navosa containing 3.43636 hectares described in Instrument of Tenancy No. 10819 dated 26 June 2008 (hereinafter referred to as “IT 10819”).
  4. During cross-examination Third Plaintiff agreed when it was put to her that:-
  5. This Court therefore has no hesitation in holding that on 14 October 2011, land subject to IT 10819 was owned by Rui Fen Tian and not 3rd Plaintiff.

Whether Plaintiffs have locus standi to bring this action


  1. Defendant’s main contention is that the dealing between owner of IT 10817, 10819 and 11160 and 2nd Plaintiff and 3rd Plaintiff are illegal for want of iTaukei Land Trust Board’s consent. Section 12 of iTaukei Land Trust Act provides as follows:-

“s12(1) Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his or her lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void, provided that nothing in this section shall make it unlawful for the lessee of a residential or commercial lease granted before 29 September 1948 to mortgage such lease.

(2) For the purposes of this section “lease” includes a sublease and “lessee” includes a sublessee.”


  1. This Court will now consider dealings (if any) owners of IT 11160, IT 10817, IT 10819 had to see if it is illegal for want of ITLTB’s consent.

IT 11160 - owned by First Plaintiff (Fresh Green Farm)

  1. From the evidence led by 1st and 2nd Plaintiffs this Court makes following finding:-
  2. In view of what is stated at preceding paragraph this Court holds that the arrangement between 1st and 2nd Plaintiff in respect to Fresh Green Farm subject to IT 11160 is not a dealing being alienation by way of transfer or sublease or creates any interest in the subject let that calls for TLTB’s consent pursuant to section 12 of ITLTA.
  3. This Court therefore holds that 1st Plaintiff has standing to bring this proceeding.

IT 10817 - Owned by 1st Plaintiff

  1. From the evidence of 1st and 2nd Plaintiffs this Court finds that:-
  2. Even though no evidence has been led this Court is of the view that the arrangement mentioned in the preceding paragraph was in return for the 2nd Plaintiff to cultivate and manage the Fresh Green Farm.
  3. This Court finds that the arrangement between the 1st and 2nd Plaintiffs in respect to land subject to IT 10817 is a dealing and creates an interest in the subject land which required consent of iTLTB pursuant to s12 of iTLTA.
  4. This Court therefore holds that since the arrangement between the 1st and 2nd Plaintiffs in respect to land subject to IT 10819 is illegal, the 2nd Plaintiff has no locus standi to bring this action.

IT 10819 - owned by Rui Fen Tian

  1. From the 3rd Plaintiff’s evidence it is clear that:-
  2. This Court has not hesitation in holding that the arrangement between Rui Fen Tian and the 2nd Plaintiff amounted to a dealing.
  3. This Court therefore holds that since the arrangement between the 2nd and 3rd Plaintiffs in respect to land subject to IT 10819 is illegal, 2nd Plaintiff has no locus standi to bring this action.
  4. Having held that only the 1st Plaintiff has standing to bring this action, this Court will now deal with other issues in respect to 1st Plaintiff only.

Whether Defendant owed a duty of care to the 1st Plaintiff


  1. This Court accepts Plaintiff’s submission that test for determining whether a person owes duty of care to another is that in Caparo Industries P/c v. Dickman [1990] UKHL 2; [1990] 1 ALLER 568 and adopted in Wartaj Seafood Products Ltd v. Ministry of Home Affairs [2000] 1 FLR 2000. Three criteria identified in Caparo (ante) are:-
  2. There is no dispute that:-
  3. This Court also takes judicial notice of the fact that Barara Flat has been subject to flooding due to heavy rainfall or bursting of Sigatoka River.
  4. This Court finds that it was reasonably foreseeable, that if the Defendant acted negligently then it would cause damage to properties adjacent to and in close proximity to the part of Valley Road where work was being carried out. Therefore it is not unreasonable to hold that at the material time the Defendant owed duty of care to 1st Plaintiff who owned Fresh Green Farm.

Whether Defendant breached the duty of care owed to the 1st Plaintiff


  1. After careful analysis of the evidence and demeanour of the witnesses this Court makes following finding of facts:-
  2. This Court accepts 2nd Plaintiff’s evidence as to what happened on 14 October 2011, as credible.
  3. In contrast DW1’s evidence was mostly technical and based on hearsay evidence as he was not directly involved with this incident.
  4. No weight is given to Exhibit D4 which shows that level of rainfall on 14 October 2011, was 94mm, for the following reasons:-
  5. From this it is apparent that the Form was completed on one particular day and not filled on each day as shown on the Form.
  6. Defendant could have easily and without much expense created a temporary fence around the gravel/soil or covered the gravel/soil with fine mesh which of course Defendant failed and/or neglected to do.

Whether Plaintiffs suffered loss and damage arising out of the breach


  1. This Court has no hesitation in making a finding that 1st Plaintiff’s Farm was subject to flooding which caused loss and damage to the 1st Plaintiff due to the Defendant’s negligence.

Loss of Income


  1. 1st Plaintiff in his evidence claims that his loss would be about $70,000.00.
  2. In the Amended Statement of Claim the 1st Plaintiff claims loss in the sum of $76,320.50 with particulars provided.
  3. No tangible evidence in the form of Bank Statements or Financial Accounts
    have been produced in Court to substantiate the claim.
  4. Only tangible and independent assessment of loss of crop was that of Unaisi Ramudu (PW4) which this Court has no reason to doubt.
  5. Apart from certain technical glitches as to date, this Court accepts what is stated in Exhibit P10 as credible evidence, which is based on investigation carried out by her and comparative schedule.
  6. In terms of PW4’s evidence:-
  7. In terms of PW4’s evidence this Court has no hesitation in holding that the amount of loss suffered by 1st Plaintiff due to loss of crop was $39,850.68.
  8. 1st Plaintiff would have incurred harvesting costs which would obviously affect his nett loss.
  9. However, since the loss assessed by PW4 does not include planting cost, it is not just and fair to deduct harvesting expenses from the amount so assessed.

Soil Erosion/Clean Up Costs

  1. No particulars of any such loss have been provided in the Amended Statement of Claim filed almost twenty-two months after the incident.
  2. Also no evidence was led to establish as to what was the cost of soil erosion and/or clean up costs.

Interest

  1. 1st Plaintiff is entitled to interest on the judgment sum at close to commercial bank rate on deposits. Interest is awarded at 3% per annum.

Cost

  1. Court takes into consideration that Plaintiffs called five witnesses, trial lasted for three days, both parties filed Submissions.
  2. It goes without saying that the facts of the case does not call for indemnity cost or costs on higher scale.

Conclusion


  1. Dealing between 2nd Plaintiff, 3rd Plaintiff and 1st Plaintiff as owner of IT 11160 as at 14 October 2011, were illegal for want of iTLTB consent and as such 2nd and 3rd Plaintiffs did not have any standing to bring this action.
  2. 1st Plaintiff being owner of IT 11160 and Fresh Green Farm had standing to bring this action.
  3. Defendant owed duty of care to the 1st Plaintiff.
  4. Defendant breached its duty of care owed to the 1st Plaintiff which caused loss to the 1st Plaintiff.
  5. The Defendant is liable to pay the 1st Plaintiff $45,577.22 (Forty-five thousand five hundred seventy-seven dollars twenty-two cents) which sum is made up as follows:-

Amount of loss (Crops) $39,850.68

Interest 3% from 8/6/2012

(date of Writ of Summons) to

23/3/2017 (date of Trial) 5,726.54

$45,577.22


Orders


  1. This Court orders that:-

Kamal Kumar
Chief Justice


At Suva
8 December 2021


Solicitors:

JAMNADAS & ASSOCIATES for the Plaintiffs

MUNRO LEYS for the Defendant


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