Naiduki v Native Land Trust Board [2000] FJLawRp 29; [2000] 1 FLR 58 (25 April 2000)

[2000] 1 FLR 58

IN THE HIGH COURT OF FIJI

SOLOMONI CAVUNISAUTU NAIDUKI

v

NATIVE LAND TRUST BOARD
AND
FIJI ADVENTIST FARMERS CO-OPERATIVE SOCIETY LIMITED

High Court Civil Jurisdiction
Byrne, J
Civil Jurisdiction
25 April 2000
HBC 0065/98

Striking out - no reasonable cause of action - observations on drafting of pleading - observations on the traditional approaches plaintiffs may make if they believe their rights have been denied by the First defendant - Native Lands Trust Act s4; Native Land Trust Ordinance 1905 s8; Orders of Executive Council 20 January, 1930 & 5 February, 1932; Limitation Act s4;

The plaintiffs filed a Writ seeking declarations claiming breach of fiduciary duty by the first defendant, breach of duty by the second defendant in permitting its sub-lessees to conduct commercial business on an agricultural sub-lease and an order for 70% of rent received. The first defendant filed an application to strike out the Statement of Claim as disclosing no reasonable cause of action.

Held - (1) where all sub-leases granted by the First Defendant have been authorised by law, the Statement of Claim discloses no cause of action against either defendant.

(2) Statement of Claim is a conglomeration of allegations of fact, unnecessary verbiage, opinion and legal arguments and bad pleadings and amendment to comply with basic rules of pleadings could not cure it.

(3) In the absence of particulars of dates of alleged breaches of contract, in view of the impossibility of ascertaining when the cause of action had begun to run under the Limitation Act, and the difficulty it would allow the Second Defendant to reply in a defence, paragraph 9 of the Statement of Claim is struck out but the action as a whole is struck out.

Obiter Dicta: If the Plaintiffs believe their rights have been denied by the First Defendant then they should approach the Board and make their complaints in the traditional Fijian way.

Claim against the defendants is misconceived. Action struck out.

Cases referred to in judgment
appr Neumi Naquira v Native Land Trust Board and Ors HBC 375/91
appr Serupepeli Dakai No. 1 & 11 Ors v Native Land Development Corporation & Ors [1977] FamCA 15; (1983) 29 FLR 92 & HBC 543/79
appr Mosese Radreu v Emperor Gold Mining Company Limited (1978) 24 FLR 107

[note: the Plaintiff acted with authority as a representative for an on behalf of the Yavusa Nawaibuta of 9 Mataqalis namely Navunikavika, Nakilitoka, Nataubale, Nakorovou, Naduruvesi, Nakabi, Navunisinu, Naveikilaisautu and Matakalokalo all of the District of Namalata in the Province of Tailevu and who are the native owners of NL 28/158 called "Levukana" as contained in the Register of Native Land Section 6.]

Tui Savu for the plaintiffs
Grahame E. Leung for the First defendant
Tevita Fa for the Second defendant

25 April 2000.

JUDGMENT

Byrne, J

Were it not for the conclusion I have reached that the Statement of Claim in this case discloses no cause of action against either of the Defendants I would have ordered it to be amended so as to show some compliance with at least the basic rules of pleading. As it stands it is a conglomeration of allegations of fact, unnecessary verbiage, opinion and legal arguments. All too frequently I have had to complain about the quality of pleadings prepared by a small number of practitioners appearing before this Court. My comments in what I hoped in each case would be helpful to the practitioners concerned have unfortunately generally speaking been ignored, true to the maxim that bad habits are hard to break.

When pleadings are badly drawn it makes the task of the Court considering them and the pleader's opponents difficult either to understand them or to draft satisfactory responses and I am surprised that more complaints are not made by practitioners whose pleadings comply with the rules in respect of pleadings which do not. With those preliminary remarks I turn to the present action.

The Writ herein was issued on the 23rd of January 1998 and basically asserts that the Plaintiff is a representative of nine Mataqalis in the District of Namalata in the Province of Tailevu who are the native owners of Native Lease 28/158 called "Levukana" contained in the Register of Native Land Section 6.

The Statement of Claim alleges that the Head Lease for "Levukana" was originally between the native owners, presumably the Plaintiffs' predecessors, as Lessors and John Cronin and Alfred Kienge as Lessees which was registered on or about the 15th of September 1912 for a period of 99 years beginning on the 13th of May 1910 and due to expire on the 13th of May 2011 for a yearly rental of Twenty-Eight Pounds and Eleven Pence.

The original Lessees were granted an agricultural lease over "Levukana" and over the years it was transferred to various people until on or about the 11th of December 1967 when it was transferred to the Australian Conference Association Limited, a Company registered in the State of New South Wales, Australia, for the consideration of the sum of Twenty-Three Thousand Two Hundred Ninety-Two Pounds Ten Shillings and Ten Pence with the consent of the First Defendant.

On the 7th of June 1940, the First Defendant was established by the Native Land Trust Ordinance which, in Section 4, vested control of all native leases throughout Fiji in the Board. The provisions of the Native Land Trust Ordinance were incorporated in the Native Land Trust Act Cap. 134 in the Legislative Revision of 1985.

The Plaintiffs then allege that the First Defendant was negligent in not carrying out a review of rental periodically as required, alternatively that if the First Defendant considered there was no need to review rentals for any given period then it should have consulted the Plaintiffs and informed them of its reasons for so not reviewing.

Over the years sub-leases were granted to various persons engaged in commercial businesses and the Plaintiffs allege that as the tenancy was agricultural in the first place any sub-leasing to commercial businesses was and is a breach of the terms of the original lease.

The Plaintiffs allege that some time in 1988 all the Defendants met to regularise the breaches allegedly committed in the past but the Plaintiffs were not officially informed of the decision reached in this meeting to divide the rent in such a way as to exclude altogether the Plaintiffs from a share in any such rents.

The Plaintiffs then seek various declarations claiming breach of a fiduciary duty by the First Defendant, a breach of duty by Second Defendant in permitting its sub-lessees to conduct commercial business on an agricultural sub-lease and an order that the Plaintiffs receive 70% of the total amount received in rent over the period concerned.

Both Defendants have applied to have the Statement of Claim struck out on the ground that it discloses no reasonable cause of action.

On behalf of the First Defendant it is claimed that the Native Land Trust Board has no duty to consult native land owners in dealings with their land because Section 4 of the Native Land Trust Act makes the Board a trustee of such land for the benefit of the Fijian owners.

Section 4(1) reads as follows:

"The control of all native land shall be vested in the Board and all such land shall be administered by the Board for the benefit of the Fijian owners."

In his unreported judgment of the 1st of October 1991 in Civil Action 375 of 1991 Neumi Naquira v. Native Land Trust Board and Others Fatiaki J. so held affirming what Kermode J. had earlier said in Civil Action No. 543 of 1979 Serupepeli Dakai No. 1 and 11 Others v. Native Land Development Corporation and Others. This was confirmed when Dakai went to the Court of Appeal. This is reported in [1977] FamCA 15; 29 FLR 92. At p. 99 the Court said:

"Ground 3 raises the plea that the appellants were entitled to have a say in the terms of the trust. No argument was advanced in support of this ground but we take it to mean that individuals are entitled to be consulted by the Board before it exercises its statutory powers of control, particularly in granting leases of native land. This is clearly not so - the Board alone has the power, and any consultations prior to authorising leases may have been merely a public relations exercise and have led, as Kermode J. believes, to a mistaken belief by individual members that they are entitled to be consulted." (emphasis added)

In Mosese Radreu v. Emperor Gold Mining Company Limited (1978) 24 FLR 107 Williams J. confirmed the meaning of Section 4(1) of the Native Land Trust Act when he said at p.108:

"In other words it makes the Board legal owners of all native land as trustees for the Fijian owners."

I therefore conclude from these authorities that the First Defendant has no duty in law to consult with land owners before it makes any decisions affecting native land held in trust for them.

The First Defendant does not deny that commercial leases over the land concerned have been granted over the years but says that all these have been authorised by law.

Section 8 of the Native Land Trust Ordinance 1905 allowed native owners with the consent of the Governor-in-Council to lease portions of their native lands. Annexed to an affidavit of Viliame Kadi sworn on the 1st of July 1998 on behalf of the First Defendant are copies of two orders made by the Executive Council on the 20th of January 1930 and 5th of February 1932 approving the sub-leasing by the lessees of "Levukana" to Europeans and other persons for business and agricultural purposes respectively.

In the ensuing years sub-leasing arrangements were approved by the Acting Director of Lands pursuant to Orders by the Governor-in-Council and copies of these approvals are also annexed to the affidavit of Viliame Kadi. With the establishment of the First Defendant sub-leasing was given from one person to another in like manner over the years until the 8th of August 1986 when the land was transferred to the Second Defendant.

I am satisfied even at this stage that all sub-leases granted by the First Defendant have been authorised by law and accordingly the Statement of Claim discloses no cause of action against the First Defendant.

The position of the Second Defendant is much simpler. It submits that paragraphs 1 to 8 of the Statement of Claim allege no cause of action against the Second Defendant. These paragraphs recite the history of the land and its transfers and it is only when we come to paragraph 9 that the Plaintiffs allege the sub-leases were in breach of the head lease conditions in that they were for commercial businesses. No dates are given by the Plaintiffs as to when the alleged breach or breaches occurred so that the Second Defendant claims, in my view correctly, that it is impossible for it to ascertain when the cause of action against it might have begun to run. Under Section 4 of the Limitation Act a cause of action based on a breach of contract must be brought within six years. In the absence of particulars of the dates on which these alleged breaches occurred I consider that paragraph 9 as it stands must be struck out. In my judgment also paragraph 9 is very badly drafted and in its present form makes it difficult for the Second Defendant to reply to it in a Defence. On the material so far before me I am satisfied that the sub-leases granted to the Second Defendant are valid and that the action against it must also be dismissed. I therefore order that the Statement of Claim be struck out as disclosing no cause of action against either the First or Second Defendant.

If the Plaintiffs believe their rights have been denied by the First Defendant then there is no reason in my view why they should not approach the Board and make their complaints in the traditional Fijian way. As a matter of law however in my judgment their claim against the Board and the Second Defendant is misconceived. In the circumstances I shall make no order for costs against the Plaintiffs.

Application granted.

Marie Chan