Nasalo v Native Lands Trust Board [2001] FJLawRp 58; [2001] 1 FLR 235 (27 July 2001)

JOSEFA NASALO v NATIVE LANDS TRUST BOARD
& TANIELA & KELERA

High Court Civil Jurisdiction

23 February, 27 July 2001

HBC 0425/00L

Injunction – dissolution – lease in favour of a third party – locus standi in representative actions

Striking out – whether any cause of action - locus standi in representative actions - title of D2 is impeachable Native Land Trust Act ss5(c), 9; Land Transfer Act ss39, 40.

The Court earlier granted an ex parte order restraining the Defendants from interfering with the quiet enjoyment of a lease. The Plaintiff subsequently filed a Statement of Claim seeking permanent injunction and rectification by D1 of a lease in favour of a named third party. D2 sought to strike out the action against them as having no cause of action, and to dissolve the injunction. The Court discussed the law on representative actions, and the standing of the Plaintiff to take a personal action where his personal rights are not complained of. The Court also discussed the nature of an action where the title of D2 is impeachable.

Held–(1) NLTB, as Trustee, must ascertain what is required of the members of the landowning unit in fulfilling its obligations under the Native Lands Trust Act. It is not for the Court to resolve the dispute or enquire whether NLTB has fulfilled its statutory obligations. Where there is no allegation of fraud against the registered lessee, the Second Defendants' title is indefeasible.

(2) The Plaintiff bringing an action in a personal capacity cannot succeed where no personal right is alleged to be infringed. He has no reasonable cause of action against both Defendants.

The ex parte injunction is dissolved. The action against the Defendants is struck out.

Cases referred to in Ruling

Hari Prasad v NLTB HBC 0377/98L
Napolioni Kurucake Ratumaiyale v NLTB and Pacific Octopus Limited (2000) 1 FLR 284
Meli Kaliavu & Ors v NLTB (1956) 5 FLR 17
Neumi Naquira v NLTB, Native Lands Commission & Lakomai Island Resort Ltd. [1991] HBC0375D/91S Ruling 1 October 1991
Serupepeli Dakai No. 1 & 11 Ors v Native Lands Development Corporation and Ors. [1977] FamCA 15; (1983) 29 FLR 92
Waisake Ratu No.2 & Anor v Native Lands Development Commission & Native Lands Trust Board (1987) 27 February 1987

27 July 2001

RULING

Prakash, J

On 29th December 2000 this Court granted an Ex parts Order to the Plaintiff to restrain the Defendant from interfering with the peaceful and quiet enjoyment by one Mohammed Sadiq f/n Abdul Rasheed, a farmer of Native Lease No 14306 the dispute in this case. Subsequently, on 16 January 2001 the Plaintiff filed a Statement of Claim seeking the following:

1. An Order for permanent injunction restraining the Defendant their servants agents or howsoever from threatening to forcefully evict the said MOHAMMED SAD1Q f/n Abdul Rasheed of Saweni, Lautoka.

2. An Order that the 1st Defendant rectify the 2nd Defendants leasehold area so as to reflect the Plaintiff's correct instructions.

3. An Order that the 1st Defendant do issue one MOHAMMED SADIQ f/n Abdullah Rasheed with a residential lease for a term of fifty (50) years over an area of 1537m2.

4. General damages both the Defendants.

5. Any other relief which in the opinion of this Honourable Court may seem just and proper.

6. Costs.

This writ was subsequently acknowledged by the Defendant. On 7th February 2001 the Second Defendant filed a Motion seeking following orders:-

(i) That the Plaintiff's Statement of Claim against the 2nd Defendant be wholly struck-out with cost on the grounds that it either does not does not disclose a reasonable cause of action against the 2nd Defendants or alternatively that this action is frivolous and vexatious or an abuse of the process of the Court.

(ii) As an alternative to (i) above the 2nd Defendants pray that the Ex Parte Order for injunction granted on 29 December 2000 be discharged.

(iii) That the Plaintiff do pay cost of his application on a solicitor/client basis.

Affidavits were filed in support and opposition. It is admitted by the parties that the Plaintiffs is suing in his personal capacity and as Head of the Tokatoka Wadigi. This is not a representative action on behalf of the landowning unit. In response to Defene Counsels submissions regarding indefeasibility of the 2nd Defendants title to the subject Native Lease the Plaintiff admits that he is not alleging fraud against the 2nd Defendants. Learned Defense Counsel stated that his argument "goes beyond fraud. The very root of the title is defective." It is not clear, what is the basis of this submission. Apparent1y this is based on the fact that the 1st Defendant acts on the instructions of the Plaintiff. Is it the Head of the Tokatoka on its personal capacity or representative of the land owing unit - the Tokotoka Waidigi?

As regards the issue of dissolving the ex parte injunction learned Counsel for the 2nd Defendants argue that there was misrepresentation by Plaintiff in his Affidavit seeking an injunction. On the basis of material non-disclosure the ex-parte injunction should be dissolved. Counsel for the P1aintiff argues that there was no mala fides non disclosure. It is not clear to the Court from a perusal of the various affidavits what was agreed amongst the members of the Tokotoka. It is up to the NLTB as trustee, to ascertain what is required by the members of landowning unit in fulfilling its obligations under the Native Lands Trust Act. The Court does not need to resolve this in disposing the summons.

In the case Napolioni Kurucake Ratumaivale v NLTB and Pacific Octopus Ltd (Civil Action HBC 0174 of 2000L, ruling of 17/11/00) this Court had dealt with a similar situation. In that case the registered sub-lessee was also made a party to an on action against the NLTB. In that case also there was no allegation of fraud against the registered lessee. As this Court had stated "Under section 5(c) of the Land Transfer Act (Cap 131) all leases of native land granted pursuant to the Native Land Trust Act are subject to it... As such under Sections 39 and 40 of the Land Transfer Act the 2nd Defendants title is indefeasible. It was not required to enquire whether the NLTB fulfilled its obligations under Section 9 or any other of its statutory obligations." (p3)

In this case no direct allegation is being made that NLTB has breached its trust obligations. The Plaintiff alleges that NLTB has not complied with his instructions. Learned Defense counsel has submitted that NLTB has statutory duty to comply with instructions of the Mataqali. The problem here is what is the instructions of the Mataqali? There apparently is a dispute amongst the members of the Mataqali. As the Court has stated that is a matter for the NLTB, breaches its statutory duties then the Plaintiff could sue the Board for breach of statutory duties and claim damages. (See also the following cases - Meli Kaliavu & Others v NLTB Civil Action 107 of 1954; Neumi Naqura v NLTB NLC and Lakomai Island Resort Ltd Civil Action 375 of 1991; and Waisake Ratu No. 2 & Another v NLDC and NLTB, Supreme Court 1987, 27 February, Cullinan J.) As was stated in Neumi Naqura's case there was no legal duty on the NLTB to consult the native owners on the exercise of their powers under section 8 and 9 of the Native Lands Trust Act. In this case there has been consultation but a dispute apparently exists within the members of the mataqali. In the case of Napolioni Kurucake Ratumaiyale this court had also considered the principles applicable in a striking out application. These need not be reiterated in full for the purpose of this ruling.

In supporting the 2nd Defendants' submissions learned Counsel for the NLTB has further questioned the locus of the Plaintiff to bring this action against the Defendants. It is clear that the Plaintiff is bringing this action in his personal capacity and not on behalf of the Tokatoka as a whole. It is quite clear from the authorities that such an action cannot succeed. As was stated in Meli Kaliavu cited earlier. "If any damage had 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. Nor could the Plaintiffs succeed in their personal claim to the equitable remedy of an injunction (5 FLR 17 at p20; emphasis added).

In Serupepeli Dakai & others v NLDC & others (Civil Action 547/79) Kermode J had stated "No member of a land owning mataqali can legally object to any other person coming onto his mataqali's land with the authority or permission of the Native Land Trust Board. He cannot personally bring an action for trespass to the land or claim damages for a trespass which does not directly infringe his personal rights .... If there is any trespass to native land it is the Board which is entitled to maintain an action." (emphasis added). The Court of Appeal upheld this judgment and did not disagree with Kermode J's interpretation of the Native Lands Trust Act. However, in commenting on the issue of whether individuals are entitled to be consulted by the NLTB before it exercises its statutory powers of control, particularly in granting leases of native land, the court of appeal stated that "This is clearly not so.... The Board alone has the power and any consultations prior to authorizing leases my have been merely a public relation exercise... (FLR 92 at p.99).

The court is mindful that an individual may bring an action if his personal right was infringed (see Ratu Malakai Waqatabu v NLTB High Court 1995 (Byrne J) 28 February). In this case there is no personal right of the Plaintiff which is being infringed. The affidavits suggest that the land in question was to be allocated to his younger brother Alipate Ciba who agreed to transfer his portion to the Second Defendants for certain considerations. There is conflict in the affidavits as to whether there was to be a subdivision of the said lease to cater for a residential site for the sitting tenant Mohammed Sadiq.

Mohammed Sadiq is not a party to these proceedings. His ALTA lease expired in December 1999. According to the letter from the NLTB dated 9th August 1999, attached as Annexure 'B' of the Plaintiffs affidavit 29/12/00, Mohammed Sadiq was given a grace period of 12 months to cultivate and reap any standing crops on his agricultural holding. As such he has no legal right to remain on the land since 1st January 2001. In the NLTB letter there is no mention of a residential lease being issued to him. He may be entitled to compensation, as was mentioned in the NLTB letter of 09/08/99 (see also Ved Prakash v NLTB and Filipe Kubuyawa Civil action HBC 0409D/1996L). Any entitlement to compensation does not justify a party remaining on the subject property (Hari Prasad v NLTB Civil Action HBC 0377/1998L).

In considering the applicable principles and the authorities cited earlier the Court rules that the Plaintiff has no reasonable course of action against the Defendants. It follows that the ex parte injunction granted on 29/12/00 is dissolved. The Court so orders. The Plaintiff is to pay costs of Defendants, to be taxed if not agreed.
Application succeeds.

Marie Chan