State v Freesoul Real Estate Development (Fiji) Pte Ltd [2022] FJHC 38; HAM178.2021 (7 February 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL MISC NO. HAM 178 OF 2021

STATE

V

FREESOUL REAL ESTATE DEVELOPMENT (FIJI) PTE LIMITED

Counsel: Mr M Vosawale for the State

Mr D Toganivalu & Ms N Tikoisuva for the Respondent

Mr K Sinuturaga for the Intervenors

Date of Hearing: 27 January 2022
Date of Ruling: 07 February 2022

RULING

[1] This is an application by an aggrieved third party to intervene in criminal proceedings in order to seek compensation for loss or damage to their property.

[2] The application is made pursuant to section 47 (2) (a) of the Environment Management Act. Section 47 (2) (a) of the Environment Management Act states:

If a person is convicted of an offence under this Act, the court may, when sentencing the offender and on the application by a person aggrieved, order the convicted person to pay to the person aggrieved-

(a) compensation for losdamage mage to property or income proved to have been suffered by that person as a result of the commission of the offence

[3] The offender, Freesoul Real Estate Development (Fiji)Limited is a limited liabiliability company. The directors are Dick Peng and Ben Ma.

[4] The company was prosecuted for undertaking unauthorized developments contrary to section 43 of the Environment Management Act.

[5] Following a trial in the Magistrates’ Court, the company was found guilty of two counts of undertaking unauthorized developments. The first unauthorized development was that the company between 8 June 2017 and 6 December 2018 at Malolo in the Western Division dug up a channel along the foreshore facing and on the land at Wacia. The second unauthorized development was that the company during the same period destroyed mangroves on the dry land at Qalilawa and the foreshore facing Qalilawa.

[6] After the finding of guilt was made, the case was transferred to the High Court for sentence.

[7] The case is before me for sentence.

[8] The aggrieved persons are Woody Jack and Ratu Jona Joseva. They seek to intervene in the sentencing hearing to seek compensation for loss or damage to their property against the company and its directors. Their counsel have summarized the claim for compensation in paragraphs 6-10 of their written submissions:

The Applicants are the lessees of a piece of land on Malolo Island, legally described as Wacia (Part of) Lot 1 on SO 8162 Comprised in iTLTB Lease Number 34903 (“Applicants Land”). See Annexure 4 of RJJ’s Affidavit.

The Applicants had plans to build eco-friendly accommodation on their land from 2015 to cater for visiting surfers and other tourists. The Applicants land ends towards the edge of the foreshore facing Wacia. See agreement for Lease Diagram in Annexure 4 of RJJ’s Affidavit.

Prior to the illegal development by Freesoul, there was a small white sandy beach at the edge of the Applicants land towards the Wacia foreshore. The Applicants had right of use of that small white sandy beach as it was their access point to their land.

When Freesoul dredged the artificial channel at the Wacia foreshore, the debris from the dredging was dumped on the small white sandy beach at the edge of the Applicants land thus forming a reclaimed land section that extended out to sea.

The reclaimed land section prevented the Applicants from conveniently accessing their land to build their proposed eco-friendly accommodation. See images annexures 6, 7 and 8 of RJJ’s Affidavit.

[9] Both the State and the offender opposes this third party application for compensation. The objections are that the aggrieved party has no locus or standing to seek compensation as the foreshore belongs to the State and that there is no evidence of any direct or indirect damage or loss to their property. They also submit that this application for compensation is an abuse of court process as the applicants have lodged a separate civil action making the same claim against the offender and other government departments. The civil action is currently pending for hearing.

[10] It is clear that the applicants have no legal right over the property upon which they have based their claim for compensation. The foreshore subject of the claim was never leased to the applicants. The foreshore belongs to the State and the rightful aggrieved party to any damage done to the foreshore is the State and not the applicants.

[11] I accept that broad language is used in section 47 (2) (a) of the Environment Management Act to compensate an aggrieved party for loss or damage to property, but the claim for compensation for loss or damage to property in this case is too remote because the offender was not tried and convicted of causing any damage to the applicants’ property.

[12] For these reasons, I refuse to allow the applicants’ leave to intervene to seek compensation for loss or damage to their property.

[13] The application is dismissed. The parties are to bear their own costs.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Toganivalu Legal for the Respondent
Hanif Tuitoga for the Intervenors