Silverlining Investments Pte Ltd v Volau [2022] FJHC 203; HBC269.2021 (14 April 2022)

IN THE HIGH COURT OF FIJI
AT SUVA

CIVIL JURISDICTION

Civil Action No. 269 of 2021

BETWEEN: SILVERLINING INVESTMENTS PTE LIMITED having its registered office at Level 1, 11 Renwick Road, Suva, Fiji.

First Applicant

A N D: QUALITY DEVELOPMENT CONSULTANTS PTE LTD having its registered office at Tamavua-i-wai Road, Walu Bay, Suva, Fiji.

Second Applicant

A N D: KAMINIELI VOLAU of Mataqali Navurevure, Tamavua,

Naitasiri.

First Respondent

A N D: NAIBUKA TOKALIMA of Mataqali Matasau, Tamavua,

Naitasiri.

Second Respondent

A N D: PAILATO RADIBI of Mataqali Matanikutu, Tamavua,

Naitasiri.

Third Respondent

A N D: i'TAUKEI LAND TRUST BOARD a body corporate established under section 3 of the i'Taukei Land Trust Act 1940.

Nominal Respondent

Counsel : Applicant: Mr Solanki B
: Respondent: Mr Tuifangalele. N
Nominal Respondent: Ms. Vokamauawa Q
Date of Hearing : 18.03.2022
Date of Judgment : 14.04.2022

JUDGMENT

INTRODUCTION

1. Plaintiff (Applicant) filed amended originating summons on 5.1.2022 after an application to add i'Taukei Land Trust Board (TLTB) was made by Defendants. Amended originating summons included TLTB as nominal party and it had filed an affidavit explaining the facts regarding release of Reserve land to Plaintiff for development. Plaintiff had obtained an Agreement for Lease TLTB No 4/3/41729 in terms of Regulation 12 of iTaukei Land Trust (Leases and Licences) Regulations 1984. Plaintiff is seeking permanent injunction not to interfere with the land under Agreement to Lease. Defendants (Respondents) are objecting to the Agreement to Lease granted to Plaintiff. They state that land under said Agreement of Lease comprised of Reserve Land, and the de reservation process was fraudulently done Plaintiff with the help of nominal Party. Agreement to Lease was executed on 24.9.2021. In terms of Section 17(1) of iTaukei Land Trust Act 1940 the ‘Board may, upon good cause being shown and with the consent of the iTaukei owners of the land, exclude...’any portion of iTaukei Reserve. This happened after institution of this action. Regulation 9 of iTaukei Land Trust (Leases and Licences) Regulation 1984, makes ‘Agreement to lease’ on a iTaukei Reserve ‘null and void’. In terms of said Regulation 9 of iTaukei Land Trust (Leases and Licences) Regulation 1984, the Agreement to Lease of 24.9.2021 became null and void hence legally unenforceable. So Plaintiff’s originating summons based on said Agreement to Lease dated 24.9.2021 is struck off.

FACTS

2. Plaintiffs by way of originating summons seeks, an injunction against the first, second and third Defendants, their servants and or agents from interfering with the land described as Agreement for Lease no. 1034 [TLTB No. 4/3/41729] (the Agreement to Lease) known as Matanikutu (Part Of) in the Tikina of Naitasiri and Province of Naitasiri having an area of 2.6740 hectares (subject to survey) (The Land).
   
3. The application is supported by the affidavit of Ronald Chan sworn on 13.12. 2021, who is a director of both the First and Second Plaintiffs.
   
4. First Plaintiff is the lessee of the Agreement to Lease.
   
5. Second Plaintiff is the company engaged to survey the Land and was obstructed by Defendants.
   
6. Frist Plaintiff, sought to lease a land from TLTB and on 24.09.2021, first Plaintiff, obtained the Agreement for Lease for a period of 10 years commencing from 1.1.2021, with a yearly rental of $2000 subject to reassessment.
   
7. On 17.09.2021, the TLTB issued “Survey Instructions” to Ronal Chand of second Plaintiff, authorizing to survey the Land under the Agreement to Lease.
   
8. The "Survey Instructions" issued to the Second Applicant requires it to carry out all survey works, including preparation of plans and other documents, on the said property within 6 months from the 17^th of September 2021. The TLTB also instructed the Second Applicant to submit to it, all survey plans or surveys within 2 months from the date of completion of the survey. The last day to carry out the survey would have been 17 March 2022 which had expired.
   
9. According to letter of solicitors for Plaintiffs annexed RC 10, Second Plaintiff had attempted to carry out survey works on the Land, without success. The main obstruction to survey was from Defendants.
   
10. Plaintiffs’ solicitors issue "Notices of Cease and Desist" on 10.11.2021 to Defendants and or their legal representative.
    
11. Despite the efforts by Plaintiffs to survey Defendants had obstructed it. Defendants in the affidavit in reply filed on 13.1.2022 challenge the nominal party TLTB’s actions in de-reservation of a Reserve Land without consent of Yavusa Matanikutu and Nayavumata.
    
12. Defendant also state that subject land was already being used by land owners.
    
13. Defendants allege forgery in relation to alleged consent which is mandatory to de reserve land in terms of iTaukei Land Trust Act 1940.
    
14. Nominal Party had denied any wrongful doing on the part of TLTB and sate that Defendants are objecting any kind of development in the area.
    
15. Both parties have submitted written submissions. Plaintiffs submitted cases but they are not relevant to this as the Land in this action is iTaukei Reserve.

ANALYSIS

16. The Agreement to Lease dated 24.9.2021, issued in favour of first Plaintiff, stated that it was issued in terms of Regulation 12 of iTaukei Land Trust (Leases and Licences) Regulation 1984, which reads:

“12(1) Where the Board has approved that grant of a lease of iTaukei land to any person subject to this regulation, the Board shall cause to be served on that person for execution by him or her an agreement for the lease of that land, in duplicate, together with a notice in writing stating 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” (emphasis added)

17. The above is general provision regarding iTaukei Land, for leases but Agreement to Lease issued to first Plaintiff was also issued under said Regulation. Board approval is precondition for grant in terms of aforesaid Regulation 12.
    
18. There was no notice in writing issued that ‘Board’ had approved grant of agreement to lease given along with it on or around 24.9.2021.
    
19. Be that as it may, the main hurdle for Plaintiff was not non-compliance of Regulation 12 of iTaukei Land Trust (Leases and Licences) Regulation 1984 but Regulation 9 which will be discussed later in this judgment.
    
20. Agreement to Lease granted Plaintiffs’ rights over iTaukei Reserve prior to dereservation. This is against law.
    
21. Clause 3 of the Agreement to Lease stated

“The Lessor herby covenants with the lessee that the lessee, paying the rent hereby reserved and performing and observing the covenants on the lessee’s part herein contained, may peaceably hold and enjoy the land during the said term without any interruption by the lessor or any person or persons lawfully claiming through under or in trust for the lessor except as otherwise provided herein”(emphasis added)

22. So it is clear that Agreement to Lease, had granted first Plaintiff a right to ‘hold and enjoy’ the Land, which was a Reserve Land at that time. This clearly conflict with the concept of declaration of area as iTaukei Reserve.
    
23. There is no dispute Agreement to Lease is governed by iTaukei Land Trust (Leases and Licences) Regulation 1984 and the Land was part of iTaukei Reserve.
    
24. When the Land relates to a Reserve land there is a precondition to de reserve the land in terms of section 17 of iTaukei Land Trust Act 1940 which reads;
    

"Exclusion of land from native reserve with consent of iTaukei owners

17.(1) The Board may, upon good cause being shown and with the consent of the iTaukei 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. (emphasis mine)

....”

25. There is no dispute that the Land comprised in the Agreement to Lease dated 24.9.2021 was a Reserved land, and it was not de reserved prior to grant of the Agreement of Lease on 24.9.2021.
    
26. So the Land needs to be de reserved prior to the said Agreement to Lease, and this required two mandatory requirements and they are
    
    1. A good cause to de reserve.
    2. Consent of iTaukei owners for de reservation.
       
27. So consent of iTaukei owners is not the sole requirement for de reservation and there should be a ‘good cause’ to de reserve. The requirement to show ‘good cause’ is also an obligation legislatively entrusted upon TLTB as trustee.
    
28. This land was not de-reserved at the time of the Agreement to Lease executed on 24.9.2021. This cannot be done on the face of provisions contained in it, which granted right to enjoy a iTaukei Reserve.
    
29. Regulation 9 of iTaukei Land Trust(Leases and Licences ) Regulation 1984 stated;

“9(1) Land in an iTaukei reserve held under or by virtue of a lease, agreement for a lease or tenancy at will , or any part of such land, shall not be transferred, mortgaged, assigned, sublet, licenced or in any other manner whatsoever dealt with or passed to any person other than an iTaukei : and any purported or attempted transfer, mortgage, assignment, sublease, licence or other dealing which is in contravention of this paragraph shall be null and void”(emphasis added)

30. From the above regulation 9 read with Section 17(1) of iTaukei Land Trust Act 1940 makes the Agreement to Lease null and void as there was no exclusion of the Land from iTaukei Reserve on 24.9.2021. By operation of law the Agreement to Lease dated 24.9.2021 had become null and void and it was fait accompli.
    
31. De reservation cannot be done subsequent to Agreement to Lease by operation law and also due to clause 3 which granted first Plaintiff right to enjoy an iTaukei Reserve, which was null and void.
    
32. There is no further elaboration needed to state that Plaintiffs cannot enjoy iTaukei Reserve irrespective of purported consent, contested by Defendants.
    
33. This action was filed by originating summons on 13.12.2021. Even at the point of institution of this action, there was no de reservation of the Land. So it is obvious Plaintiff could not have obtained an injunctive relief sought, on the Agreement to Lease which was null and void, by operation of law.
    
34. After institution of this action on 11.2.2022 the reservation of the Land had been gazette but this cannot legalize retrospectively an instrument that is in law null and void in terms of Regulation 9 of iTaukei Land Trust (Leases and Licences) Regulation 1984.
    
35. Accordingly in my mind Agreement to Lease executed on 24.9.2021 is specifically prohibited in terms aforesaid Regulation 9 hence cannot be the basis of injunctive relief and originating summons, is struck off in liminne.
    
36. Defendants had counter claimed in the originating summons, but their claims as stated in the affidavit evidence vary from claims based on fraud, forgery, against Plaintiffs.
    
37. Order 28 rule 3 of High Court Rules 1988 states

“(3) If it appears on the application of a plaintiff against whom a counterclaim is made under this rule that the subject-matter of the counterclaim ought for any reason to be disposed of by a separate action, the Court may order the counterclaim to be struck out or may order it to be tried separately or make such other order as may be expedient.”(emphasis added)

38. The claims against Plaintiffs cannot be dealt by originating summons in terms of Order 28 rule 3 of High Court Rules read with Order 5 rule 2 of High Court Rules 1988, considering nature and circumstances of this case. Fraud and forgery cannot be dealt in originating summons due to nature of the claims and obvious dispute as to the facts, read with Order 5 rule 2 of the High Court Rules 1988.
    
39. Defendants had also counter claimed against nominal defendant and their allegations are mainly in the nature of procedural irregularity in the process of obtaining consent, and or de reservation of land these are not the scope of originating summons to seek the relief they had sought.
    
40. Apart from that Defendants are claiming breaches of fiduciary duty by nominal party. This needs to proved through a suitable civil action. Considering circumstances this is counter claims against nominal parties are also struck off in terms of Order 28 rule 3 of High Court Rules 1988.
    
41. Defendants are free to raise these issues in a suitable manner in suitable action.

CONCLUSION

42. Plaintiffs’ originating summons based on Agreement to Lease issued on 24.9.2021. The Land area of said Agreement to Lease was not de reserved at that time though by clause 3 of the agreement granted first Plaintiff a right to enjoy a reserved land. This Agreement to Lease was issued is subjected to iTaukei Land Trust (Leases and Licences) Regulation 1984. Regulation 9 expressly makes Agreement to Lease granted over a iTaukei Reserve null and void. Hence Plaintiff’s originating summons based on Agreement to Lease dated 24.9.2021 cannot be enforced in law. Once it became null and void it cannot be revived subsequently. Application for injunction is refused in limine. Defendants’ counter claims are struck off due to nature of them and circumstances of this action. They are at liberty to seek appropriate relief in a proper action, other than originating summons. Defendants are granted a cost of $2,000 assessed summarily, to be paid by Plaintiffs jointly or severally within 30 days.

FINAL ORDERS

1. Plaintiffs’ originating summons for injunctive relief is struck off.
2. Defendant’s counter claims against Plaintiffs and nominal parties are struck off.

100. Defendants are granted a cost of $2,000 assessed summarily, to be paid within 30 days, by Plaintiffs jointly or severally.
     

Dated at Suva this 14^th day of April, 2022.

....................................

Justice Deepthi Amaratunga

High Court, Suva