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Naisilisili v iTaukei Land Trust Board [2022] FJHC 139; HBC314.2019 (18 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA

CIVIL JURISDICTION


Civil Action No. HBC 314 of 2019


BETWEEN:


SEVECI NAISILISILI and JOAPE TUKITOGA No. 4 Turaga ni Mataqali & Retired and Security Officer both of Muaivuso Village, Suva for and on behalf of themselves and as representatives of the members of MATAQALI NATABUIVALU (TK 564)


PLAINTIFF


AND:


I TAUKEI LAND TRUST BOARD a statutory body established under the I-Taukei Land Trust Act of 431 Victoria Parade, Suva.


DEFENDANT


BEFORE:
Hon. Mr. Justice Vishwa Datt Sharma


COUNSELS:
Mr Nawaikula for the Applicant
Ms Vokanavanua for the Respondent


DATE OF DECISION:
Friday, 18th March 2022 @ 9.00 am.


DECISION

[Summons to Enter Judgment pursuant to Order 13 Rule 6 and Summary Judgment
Order 14 Rule 1 of the High Court Rules 1988]


A. INTRODUCTION


  1. The Plaintiffs in their capacity as the representatives of the members of Mataqali Natabuivalu of Yavusa Navakavu of Muaivuso Village filed a Writ of Summons coupled with a Statement of Claim against the Defendant and sought for the following Declarations:-

B. AFFIDAVITS FILED

  1. The following Affidavits were filed:-

C. BACKGROUND

  1. The subject matter of this action is ITaukei Land that is owned by the Plaintiff’s Mataqali Natabuivalu and is known as RNL Volume 7 folio 1179, being Lot 2 on Map No. M7, 2 & M2, 4 (part of) where the Respondent has issued 2 leases namely Lease ITLTB Ref. No. 4/16/10377 in favor of Hung Kee Investment Limited and a Lease issued to one Jason Jeteendra Raj.
  2. The Plaintiff’s Mataqali is claiming that the Defendant acted unlawfully and in breach of the ITaukei Land Act when issuing such leases to Hung Kee Investment Limited and Jason Jeteendra Raj and that therefore the leases are null and void and of no effect.
  3. The Defendant was served with the Writ of Summons on 24th September 2019 and failed to file any ‘acknowledgement’ and or ‘Statement of Defence’.
  4. The Plaintiffs subsequently filed a Summons and an Affidavit In Support on 05th November 2019 and sought for dual orders as follows-
  5. The provision of Order 13 Rule 6 of the High Court Rules 1988 deals with “failure to give Notice of Intention to defend” in respect of other claims. Whereas Order 14 Rule 1 deals with Summary Judgment on the ground that the Defendant has no defence to the Plaintiff’s claim.
  6. Upon the perusal of the Court file, it reveals that the Defendant had failed to file an Acknowledgement of Service and the Statement of Defence after the service of the Writ of Summons and the Statement of Claim.
  7. The Plaintiffs could then have proceeded to file a Praecipe together with Search for ‘Acknowledgement’ and ‘Statement of Defence’ and sought for ‘Interlocutory Judgment’ to be entered for the substantive claim.
  8. However, the Plaintiffs failed to take the above cause of action and in turn pursued ‘Summons to Enter Judgment’ pursuant to Order 13 Rule 6 and Order 14 Rule 1 of the High Court Rules 1988.
  9. The Defendants subsequently filed an ‘Affidavit In Opposition’ annexing its Draft and proposed ‘Statement of Defence’ denying acting in breach of its statutory powers in issuing leases within the land owned by Mataqali Natabuivalu and maintain that the said land is non-reserve.
  10. The Plaintiff in its ‘Summons to Enter Judgment’ also sought for ‘Summary Judgment’ against the Defendant pursuant to Order 14 Rule 1 of the High Court Rules 1988.

Plaintiff’s Case

  1. The Plaintiffs are the Turaga ni Mataqali and a member of of Mataqali Natabuivalu (TK 564) of Yavusa Navukavu of Muaivuso Village.
  2. The Plaintiffs bring this action on their own behalf and as Representatives of members of Mataqali Natabuivalu of Yavusa Navakavu Muaivuso Village.
  3. The subject matter of this Action is Native Land that is owned by the Plaintiff Mataqali Natabuivalu and is known as RNL Volume 7 folio 1179 being Lot 2 on Map No. M7,2 & M2,4 (part of) where the Defendant has issued 2 Leases namely Lease ITLTB Ref. No. 4/16/10377 in favour of Hung Kee Investment Limited and a Lease issued to one Jason Jeteendra Raj.
  4. By this Action the Plaintiff Mataqali is claiming that the Defendant acted unlawfully and in Breach of the ITaukei Land Trust Act when issuing such Leases to Hung Kee Investment Limited and Jason Jeteendra Raj and therefore the Leases are null and void and of no effect.
  5. The Plaintiff says that the Defendant has issued the Leases over a Native Reserve without the written, prior and informed consent of the Plaintiff.

Defendant’s Case

  1. This Action is based on the Plaintiffs claim on their Land recorded on RNL Volume 7 folio 1179 Lot 2 owned by Landowning unit or Mataqali Natabuivalu of Muaivuso Village, Suva, Rewa Province. Within the Land, 2 Leases were issued by the Defendant after carrying out consultations and its due compliance.
  2. The Plaintiffs are claiming that Land in issue is within Reserve Land and was set aside as their village reserve published in the Gazette Volume 16 No. 48 dated 10th July 2015. The plaintiffs are alleging that the Defendant is breaching its statutory duty for issuing Leases within their iTaukei Reserve Land.
  3. That prior to the Gazette date, the land in issue status was outside Reserve. Thus, lawful for the Board to grant Leases if not beneficially occupied by the Landowners. However, prior consultations with the Landowners needs to be carried out before Land is leased.
  4. That the Defendant received two separate Lease applications from Jason Raj and Hung Kee Investments Limited before the said Gazette date. The Defendant then carried out consultations with members of Plaintiff’s Mataqali on 27th January 2015 and 19th April 2015 who fully supported the applications.
  5. That after the consultation meetings, inspection was carried out on 18th March 2015 which included the Demarcation of boundaries. It was then agreed mostly by the Landowning Unit members for the 2 Lease applicants to Lease their Mataqali Lane.
  6. The Defendant’s position is prior to the Gazette date, land status was outside reserve. Thus, de-reservation process is not required. De-reservation process includes obtaining majority consent for de-reserving only the area identified for Leasing and also de-reservation Notice to be published in the Gazette. The defendant can only grant Leases on I-taukei land not included in an ITaukei reserve.
  7. The Defendant believes that they have a Defence on merits with high prospect of success and should be allowed to defend this Action.

D. THE LAW

  1. Order 14 of the High Court Rules, 1988 deals with Summary Judgment applications which states-

1.-(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.

(2) Subject to paragraph (3), this rule applies to every action begun by writ other than-

(a) an action which includes a claim by the plaintiff for libel, slander, malicious prosecution or false imprisonment,

(b) an action which includes a claim by the plaintiff based on an allegation of fraud.

(3) This Order shall not apply to an action to which Order 86 applies.


  1. Order 86 Rule 1 of the High Court Rules,1988 provides as follows-

Application by plaintiff for summary judgment (O.86, r.1)

1.-(1) In any action begun by writ indorsed with a claim –

(a) for specific performance of an agreement (whether in writing or not) for the sale, purchase, exchange, mortgage or charge of any property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages, or

(b) for rescission of such an agreement, or

(c) for the forfeiture or return of any deposit made under such an agreement, the plaintiff may, on the ground that the defendant has no defence to the action, apply to the Court for judgment.


E. ANALYSIS AND DETERMINATION

  1. The issue for this Court to determine now is “whether the Plaintiff is entitled to Summary Judgment of the claim against the Defendant”.
  2. According to the principles of summary judgment, the Defendant is required to file an affidavit that deals specifically with the Plaintiff’s claim and state clearly the defence and facts it relies upon to support it. If there is no affidavit filed at least the Statement of Defence must clearly set out the Defence.

In Coral Surf Resort Ltd v Yam Civil Action No. 66 of 2008, Master Tuilevuka (as he was then) stated as follows-

‘Once a claim is established, the evidential and persuasive burden shifts to the Defendant (see Thomas J in Hibiscus Shopping Town Pty Ltd v Woolworths Ltd [1993] FLR 106 at 109) who must adduce affidavit claim and affidavit and also state clearly and precisely what the defence is and what facts he relies on to resist the entry of summary judgment: Magan Lal Brothers Ltd v L.B.Masters & Company Civil Appeal No. 31/84.’

  1. The Defendant resisting the summary judgment must establish that there is an issue or question in dispute with respect to the claim or the part of the claim which ought to be tried or there ought for some reasons to be a trial of that claim or part. If the defendant fails to do so, then the court will enter summary judgment against the defendant on that claim or part pursuant to Ord. 14, r.3 of the HCR. 1988.
  2. Pursuant to Ord. 14, r. 1 (1) of the HCR, 1988, where in an action to which this applies, a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or particular part of such a claim, apply to the court for summary judgment against that defendant.
  3. Further, pursuant to Ord. 14, r.1 (2), subject to paragraph (3), this rule applies to every action begun by Writ other than an action which includes a claim by the Plaintiff for libel, slander, malicious prosecution or false imprisonment, and an action which includes a claim by the Plaintiff based on an allegation of fraud.

Sub paragraph (3) stipulates that this order shall not apply to an action to which Order 86 applies.

  1. Bearing in mind the above provisions of the law, it is therefore important that I must decide whether summary judgment is available to the plaintiff in this case with regards to the nature of the claim.
  2. In this case, the writ of summons together with the Statement of Claim was served and the defendant failed to file an acknowledgement of service giving notice of intention to defend the action. Thereafter, the Defendant was required to file and serve a Statement of Defence, which he to date has failed to do so. The plaintiff therefore is entitled, pursuant to Ord.14, to apply for summary judgment against the defendant. Further, the filing of a Statement of Defence before an application for summary judgment does not preclude an application being made, nor does it prevent summary judgment being granted if the court is of the view that there is no defence to the claim.
  3. Subsequent to the filing of the Defendant’s Notice of Intention to Defend, the Plaintiff thought fit and proper to file and serve a Summons and also seek an order for Summary Judgment instead.
  4. The Fiji Court Appeal in Carpenters Fiji Ltd v Joes Farm Produce Ltd [2006] FJCA 60; ABU 0019U of 2006S (10 November 2006), Case dealing with summary judgment application, laid down the well-established principles in relation to the entry of summary judgment under paragraph 21 as follows:

(a) "The purpose of 0.14 is to enable a plaintiff to obtain summary judgment without trial if he can prove his claim clearly and if the defendant is unable to set up, a bona fide defence or raise an issue against the claim which ought to be tried.

(b) The defendant may show cause against a plaintiff's claim on the merits e.g. that he has a good defence to the claim on the merits or there is a dispute as to the facts which ought to be tried or there is a difficult point of law involved.

(c) It is generally incumbent on a defendant resisting summary judgment, to file an affidavit which deals specifically with the plaintiff's claim and affidavit and states clearly and precisely what the defence is and what facts are relied on to support it

(d) Set off, which is a monetary cross claim for a debt due from the plaintiff, is a defence. A defendant is entitled to unconditional leave to defend up to the amount of the set off claimed. If there is a set off at all, each claim goes against the other and either extinguishes or reduces it Hanak v Green (1958) 2 QB 9 at page 29 per Sellers LJ.

(e) Likewise where a defendant sets up a bona fide counter claim arising out of the same subject matter of the action, and connected with the grounds of defence, the order should not be for judgment on the claim subject to a stay of execution pending the trial of the counter claim but should be for unconditional leave to defend even if the defendant admits whole or part of the claim. Morgan and Son Ltd – v - Martin Johnson Co (1949) I K 107(CA).

See 1991 The Supreme Practice Vol 1 especially at pages 146, 147,152 and 322."

  1. Reference is also made to the Halsbury’s Law of England (4th Ed) Volume 37 para 413-415, which states as follows:-

“413: Defendant showing cause:

Where the Plaintiffs application for summary judgment under Order 14 is presented in proper form and order, the burden shifts to the defendant, and it is for him to satisfy the court and there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial. Unless the defendant does so, the court may give such judgment for the plaintiff against the defendant as may be just having regard to the nature of the remedy or relief claims.

The defendant may show cause by affidavit or otherwise to the satisfaction of the court. He must “condescend upon particular”, and, in all cases, sufficient facts and particulars must be given to show that there is a genuine defence. The defendant must serve his affidavit on the plaintiff or his solicitor at least three days before the return day. The affidavit may contain matters of hearsay provided the sources of information and grounds of belief are disclosed. The court has power to order a defendant showing cause or an officer of a body corporate to produce any document, and to attend and be examined on oath if there are special circumstances making it desirable to do so. By necessary implication, the obligation on the defendant to dhow cause allows the plaintiff to answer the defendant’s case.

414: Unconditional leave to defend:

The power to give summary judgment under Order 14 is intended to apply only in clear cases, where there is no reasonable doubt that the plaintiff is entitled to judgment and where it is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purposes to delay. Leave to defend will therefore be given where the defendant shows that he has a fair case, that there is an issue or question which ought to be tried, or that there are reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence.

However, the defendant does not have to show a complete defence, but only a fair probability of a defence, or that there is a real substantial issue or question to be tried, or that there is a dispute as to facts or law which raises a reasonable doubt whether the plaintiff is entitled to judgment. The procedure under order 14 was not intended to shut out a defendant who could show that there was an issue or question that ought to be tried or that for some other reason there ought to be a trial.

Leave to defend will be given where the amount recoverable to be clearly subject to a reasonable inquiry or to an account being taken.

415: Conditional leave to defend:

The court may give a defendant against whom an application for summary judgment is made under Order 14 leave to defend the action with respect to the claim, or the part of the claim, to which the application relates either unconditionally or conditionally, that is, on such terms as to giving security or time or mode of trial or otherwise as the court thinks fit. Conditional leave to defend will be granted where the court forms the view, on the material before it, that the defence set up is a sham defence or it is shadowy, or that there is little or no substance in it or that there is something suspicious in the defendant’s mode of presenting his case or the master is very nearly prepared to give judgment for the plaintiff. However, if there is no sign of bad faith nor anything to show that the defence is a sham nor any suspicious circumstances as to the mode of presenting the case, leave to defend should not be conditional, nor should it be conditional where the practical result would be likely to deprive the defendant unjustly to his defence. The usual form of conditional leave to defend requires the payment of the whole or part of the claim into court.

  1. Reference is also made to the case of Metal Works & Joinery Limited v. Fiji Islands Revenue & Customs Authority, Justice Pathik applying the Court of Appeal decision delivered by Greig J in Australia Guarantee Corporation (NZ) Ltd v. Mc Beth [1992] 3 NZLR 54 at 58 held in determining the issue before him on the facts and circumstances of this case:-

‘The summary judgment procedure is a simple expeditious way to enable a plaintiff to obtain judgment where there is no real defence to the claim made see Pemberton v Chappell [1986] NZCA 112; [1987] 1 NZLR 1 at 2. The essence of the procedure is the plaintiffs own verification by affidavit of his own statement of claim and the allegation made in it: Harry Smith Car Sales Ltd v Clay com Vegetable Supply Co Pty Ltd [1978] 29 ACTR 21. There has to be balancing between the right of the defendant to have his day in court and to have his proper defences explored and the appropriate robust and realistic approach called for by the particular facts of the case: see Bilby Dimock Corporation Ltd v Patel {1987] [1987] NZCA 193; 1 PRNZ 84 and Cegami Investment Ltd v AMP Financial Corporation [NZ] [1990] 2 NZLR 308 at p. 313. Although the onus is upon the plaintiff there is upon the defendant a need to provide some evidential foundation for the defences which are raised. If not the plaintiffs verification stands unchallenged and ought to be accepted unless it is patently wrong.’

  1. The Plaintiff’s application for summary judgment under Order 14 is presented to court in proper form and order. The burden now shifts to the defendant, and it is for him to satisfy the court and there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial.
  2. It is not in dispute that there is no Statement of Defence filed by the Defendant after service of the Plaintiff’s Writ of Summons. However, the Defendant has resisted to the Plaintiff’s Summary Judgment Summons. The Defendant has subsequent to the filing of its Affidavit in Opposition annexed a Proposed Draft Statement of Defence dealing specifically with the Plaintiff's statement of claim filed herein.
  3. In the Affidavit in Opposition to the Summary Judgment Summons, it states clearly and precisely what the Defence is and what facts are relied on to support it. It stated the following-

“The Plaintiffs are claiming that Land in issue is within Reserve Land and was set aside as their village reserve published in the Gazette Volume 16 No. 48 dated 10th July 2015. The plaintiffs are alleging that the Defendant is breaching its statutory duty for issuing Leases within their iTaukei Reserve Land. That prior to the Gazette date, the land in issue status was outside Reserve. Thus, lawful for the Board to grant Leases if not beneficially occupied by the Landowners. However, prior consultations with the Landowners needs to be carried out before Land is leased.

That the Defendant received two separate Lease applications from Jason Raj and Hung Kee Investments Limited before the said Gazette date. The Defendant then carried out consultations with members of Plaintiff’s Mataqali on 27th January 2015 and 19th April 2015 who fully supported the applications.

That after the consultation meetings, inspection was carried out on 18th March 2015 which included the Demarcation of boundaries. It was then agreed mostly by the Landowning Unit members for the 2 Lease applicants to Lease their Mataqali Lane.

The Defendant’s position is prior to the Gazette date, land status was outside reserve. Thus, de-reservation process is not required. De-reservation process includes obtaining majority consent for de-reserving only the area identified for Leasing and also de-reservation Notice to be published in the Gazette. The defendant can only grant Leases on iTaukei land not included in an iTaukei reserve.

The Defendant believes that they have a Defence on merits with high prospect of success and should be allowed to defend this Action.”

  1. It is clear from the Defendant’s Affidavit in Opposition and the documents filed as annexures within his Affidavit that the Defendant has established that there are questions in dispute and triable issues which ought to be tried and determined at a hearing rather than via summary application.
  2. The central triable issues that have been raised by the Plaintiffs Originating Summons and the Defendant’s proposed Draft Statement of Defence needs to be heard and determined in terms of the oral and documentary evidence. The issues are the following:-

(i) To determine the status of the two leases issued to Hung Kee Investment Limited and Jason Jeteendra Raj allegedly owned by the landowning unit or mataqali Natabuivalu of Muaivuso Village, Suva, Rewa Province within the Native Land.

(ii) Whether the Plaintiff’s bridged its statutory rights and duties in issuing those two leases to the abovenamed.

(iii) Whether the two leases were issued prior to the publication of the same in the Gazette.

(iv) Whether the Plaintiffs have a cause of action or not.

(v) Whether the said land on RNL Volume 7 folio 1179 Lot 2 is within the reserved land and whether the two leases should not have been issued.

  1. In this case, I find that the Defendant has raised triable issues together with some questions in dispute as discussed hereinabove. Therefore, these triable issues and questions in dispute ought to be tried in a proper trial and determined accordingly.
  2. The Plaintiff’s application in this particular case is related to summary judgment under Order 14 of the High Court Rules, 1988. Reference is made to the following Notes to Or.14 or 5 in the Supreme Court Annual Practice 1958 p263 which is very much appropriate and ought to be taken into consideration:-

“The power to give summary judgment under Order 14 is ‘intended only to apply to cases where there is no reasonable doubt that a plaintiff is entitled to judgment, and where therefore it is inexpedient to allow a defendant to defend for mere purposes of delay’ (Jones v Stone [1894] UKLawRpAC 2; [1894] A.C. 122). As a general principle, where a defendant shows that he has a fair case for defence, or reasonable grounds for setting up a defence, or even a fair probability that he has a bona fide defence, he ought to have leave to defend (Ward v Plumbley, (6 T.L.R. 198).”

  1. Taking into consideration all above and in exercise of this Court’s discretion whilst applying the appropriate applicable principles to the nature of the Plaintiff’s application, the Defendant ought to be allowed to defend this action at a proper hearing.

COSTS

  1. The Defendant failed to file and serve Acknowledgement of Service and Statement of Defence. It was only after the Defendant was served with the subsequent Summons to Enter Judgment against the Defendant together with Summary Judgment by the Plaintiffs that the Defendant had filed its submissions and draft proposed Statement of Defence.
  2. In the circumstances at Court’s discretion there will be no order as to costs made against the Defendant.
  3. I make the following orders-

FINAL ORDERS


(i) The Plaintiff’s application seeking an order to enter judgment and an order for summary judgment against the Defendant is hereby refused and accordingly dismissed.

(ii) The Defendant to file and serve its Statement of Defence within 14 days timeframe.

(iii) The Plaintiff is at liberty to file and serve a Reply within 14 days thereafter.

(iv) The Substantive Action to takes its normal cause.

(v) There will be no order as to costs at the discretion of this Court.

(vi) Orders accordingly.

DATED at SUVA this 18th day of March, 2022.


VISHWA DATT SHARMA
JUDGE


  1. Nawaikula Esquire, Suva.

ITaukei Land Trust Board Legal Department, Suva.

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