Kaliavu v Native Land Trust Board [1956] FJLawRp 16; [1956-57] 5 FLR 17 (27 August 1956)

[1956-57] 5 FLR 17

IN THE SUPREME COURT OF FIJI
CIVIL JURISDICTION

[No. 107 of 1954]

BETWEEN:

MELI KALIAVU
VITALE VOKAVOKA
VILIAME ROGICA
LEONARE BIU
KOSETATINA TAGOVIKI
All of Lawaki, Sawakasa, Tailevu North, Members of the Mataqali
"MATANIVUGA"
Plaintiffs

AND:

THE NATIVE LAND TRUST BOAD
Defendant

Mataqali land - members suing in personal capacity - no right of action.

The plaintiffs, five of a mataqali of some 150 members, instituted this action against the Native Land Trust Board. They claimed damages and all injunction restraining the defendant Board from granting a lease to one Yee Cheng Foo of a portion of the land owned by their mataqali. The plaintiffs sued in their personal capacity as members of the mataqali and not in a representative capacity on behalf of the mataqali.

Held. - If any damage has been suffered by the mataqali as a result of any action by the Native Land Trust Board for which the Board is liable in lam to pay damages, the mataqali could undoubtedly recover them. It was not however open to individual members to sue and recover damages in their own personal capacity. Nor could the plaintiffs succeed in their personal claim to the equitable remedy of an injunction.

Judgment for the defendant Board.

F.M.K. Sherani for the plaintiffs.
D.M.N. McFarlane for the defendant.

HAMMETT, J. [27th August, 1956]-

In this case the plaintiffs are five members of the Matanivuga Mataqali. They claim damages and all injunction restraining the Native Land Trust Board from granting a lease of a portion of the land owned by their Mataqali to one Yee Cheng Foo. The plaintiffs sue in their personal capacity as members of this Mataqali and not in a representative capacity on behalf of the Mataqali.

The facts relied on by the plaintiffs as given in evidence by them and their witnesses, coupled with the admissions made by the defendant Board may be summarized briefly as follows:-

The Matanivuga Mataqali in the tikina of Sawakasa in Tailevu Province, consists of some 150 members, including women and children. Apart from those few members living or working elsewhere, the Mataqali live at Lawaki village, which is built on flat land alongside Lawaki Creek.

The Mataqali own a total of about 230 acres of land of which over 100 acres are either almost barren land or else can only be cultivated with difficulty. Lawaki village is sited on flat land and is subjected to periodic flooding. In 1951 there was serious flooding and the villagers then met and decided to move the site of their village to higher ground adjoining the nearby Government road.

The proposed new site for tile village is on land owned by the Mataqali and called Natova. The process of moving the village will take several years, since it is only when the bures in Lawaki need reconstruction, that they will be re-erected in the new village area. Plaintiffs say that the Roko Tui Tailevu was acquainted with this decision at the time, but that was not admitted by the defendant Board. Two bures were built on the new area in 1952, and three more have been built there since 1952. For many years past, the Mataqali have used an undefined area of this land for purposes of cultivation.

On 19th July, 1952, Yee Cheng Foo applied to the Native Land Trust Board for the lease of about half an acre of the land called Natova for the purpose of erecting there a retail store and bakery.

The section applied for is adjacent to the Government road and is alleged by the plaintiffs to be within the area under cultivation and within the area to be developed as the site of the new village and only a few chains away from tile bures built there in and since 1952.

In July, 1952, there was a. special meeting of the Sawakasa Tikina Council called to consider this application, which it must be assumed had been referred to the Council through the Department of Fijian Affairs by the Native Land Trust Board.

There is no permanent representative of the Matanivuga Mataqali on the Sawakasa Tikina Council. When, however, the affairs of the Matanivuga Mataqali are under discussion, it is the practice for them to be represented on the Council by the Turaga-ni-Mataqali. It is the contention of the plaintiffs that at this meeting they had no representative present as a result of which the other members of the Council declined to discuss the matter relating to Matanivuga Mataqali land. If this was so, it certainly would appear to be a prudent decision. From the cross-examination of the witnesses for the plaintiffs, it is clear, however, that the Native Land Trust Board contend that the Matanivuga Mataqali were represented at this Council meeting by their head, i.e. Meli Koliyavu. The Board maintain that according to the Buli Sawakasa who presided at the meeting, it was decided that the lease applied for by Yee Cheng Foo should be approved and that Meli Koliyavu on behalf of the Matanivuga Mataqali concurred in this decision.

On 29th April, 1953, the Native Land Trust Board gave provisional approval to the grant to Yee Cheng Foo of a lease of the half acre of land at Natova applied for.

On 7th May, 1953, a surveyor went to the land at Natova. As a result the plaintiffs and others sent to the Native Land Trust Board their letter dated 12th May, 1953, objecting to the grant of any lease of their Mataqali's land to Yee Cheng Foo. The grounds of their objection did not, however, include their intention to remove their village to the vicinity of tile land surveyed. Their objection was solely on the ground that they required the land themselves for the purpose of erecting a village store, for which purpose they said they had already raised the necessary funds.

This objection was overruled by the Native Land Trust Board in their letter dated 27th May, 1953, in which it was stated that the owners of the land having previously agreed a lease of the land to Yee Cheng Foo for a period of 25 years had now been approved by the Board.

There were then conversations about the precise position of the site to be leased to Yee Cheng Foo. Senior officers of the Native Land Trust Board visited the area and they understood that the wishes of the Mataqali had been meet by giving Yee Cheng Foo a different section of land. That the Mataqali members were still not agreeable is, however, made quite evident by the fact that immediately afterwards, they proceeded to erect their own store on the precise site which the senior officers of the Native Land Trust Board understood they were willing to be occupied by Yee Cheng Foo.

The Native Land Trust Board then indicated a third section which they would lease to Yee Cheng Foo. Eventually, the plaintiffs issued the writ in this case on 6th October, 1954, claiming:-

(1) An order setting aside the lease to Yee Cheng Foo; and

(2) £2,500 damages.

Yee Cheng Foo has not yet entered into possession of the land and this claim has since been modified to:-

(1) An injunction restraining the Native Land Trust Board from granting a lease to Yee Cheng Foo; and

(2) £500 damages.

This claim is based on the provisions of the Native Land Trust Ordinance Cap. 86, section 10(b) which read as follows:-

"No native land shall be dealt with by way of lease or licence under the provisions of this Ordinance unless the Board is satisfied that the land proposed to be made the subject of such lease or licence is not being beneficially occupied by the native owners, and is not likely during the currency of such lease or licence to be required by the native owners for their use, maintenance or support."

It is the contention of the plaintiffs that the land is being beneficially occupied by the native owners for purposes of cultivation and is required for their use as the site of their new village.

Counsel for the plaintiffs concedes that there is no other evidence that the Board was not satisfied on this matter before arriving at its decision, and there is no suggestion and no evidence that the Board has acted in bad faith in this matter.

It would appear that the Native Land Trust Board have been acting on the report of the Buli Sawakasa, that the native owners in this case had agreed to the lease of this part of their land to Yee Cheng Foo. It is clear that it is one of the Board's contentions that the dispute in this case has arisen because the Mataqali have, since 1952, changed their minds about the matter and not that they (the Board) have been misinformed. This the plaintiffs deny.

At the close of the case for the plaintiffs, learned counsel for the defence submitted that the defendant Board had no case to answer on several grounds, all of which have considerable weight. It is not necessary for me to deal with all of these grounds.

The plaintiffs have claimed damages and an injunction. I will deal first with the claim for damages.

The plaintiffs are not the owners of the land in question. They are merely five members out of some 150 members of the Matanivuga Mataqali who own the land. If any damage has been suffered by the Mataqali as a result of any action by the Native Land Trust Board for which they are liable in law to pay damages, the Mataqali could undoubtedly recover them.

It is not, however, open to this member or that member to sue and recover such damages in their own personal capacity. It would be quite out of the question for this Court to award damages personally to these five plaintiffs in respect of a cause of action (if there is one) open to the Mataqali of which they are members. Their claim to damages, therefore, cannot possibly succeed.

As regards the clam to an injunction, this is an equitable remedy. As a general rule, equitable remedies are only granted to a plaintiff who has established a right at law, where the legal remedy of damages is not an adequate remedy. In this case the plaintiffs have failed to establish their personal claim in law to damages. They cannot, therefore, succeed in their personal claim to the equitable remedy of an injunction.

I must uphold the contention of the defence that the defence has no case to answer and I therefore must give judgment for the defendant Board.

This action may not, however, have been in vain. It has at this hearing, lasting over three days, been made abundantly clear that there are a number of elderly, responsible, male members of the Matanivuga Mataqali who have chosen a decent and orderly manner (albeit a mistaken manner) in which to lodge their strong and solemn protest at the proposed leasing of a portion of their Mataqali's land by the Native Land Trust Board to a Chinese store-keeper. The grounds of their objection are:-

(a) That they wish to run their own store in their own village on their own land; and

(b) that over the years to come they wish to re-establish their village on a new and better site on and in the vicinity of the land in question.

I am quite sure that every effort will be made by the Native Land Trust Board to meet the reasonable wishes of these gentlemen.

In these circumstances, therefore, although the Native Land Trust Board have undoubtedly acted in all good faith in this matter throughout and had no option but to defend this action, I shall reserve the question of costs until the parties have had the opportunity of taking their clients' further instructions on the matter.

There will be judgment on the claim for the defendant Board.

Hammett, J.
Judge