In so far as the second and
third defendare concerned, it has not been alleged that they were in
n
breach of any obligation
under Clause 30. The alleged breaches were directed
at the first defendant. Again when one turn to the Statement of Claim,
no
cause of action has ever been pleaded against the second and third
defendants even after they were joined as defendants.
There was no amendment
to the Writ and Statement of Claim to include them as defendants. The matter
proceeds on the understanding
that they were joined as defendants. Even if
it were so, the plaintiff has not pleaded any cause of action against the
two defendants at all.
Thus at the close of the
pleadings no cause of action whatsoever was pleaded against the second and
third defendants and
as such there is presently no cause of action against
them.
As to the first defendane
claim against it was in respect of alleged breaches of the TRA relying on
Cla Clause 30 of
that Agreement. The reports made following the alleged breaches
of the TRA confirmed that there were breaches committed by
the first
defendant. See the Reports by David Nagu, Forestry Officer (TCU) made
on 22nd September 1992 and 4th November 1992, by the
AFO (Ag) (TC) made on 26th October 1993 also from the Forestry
Division and by one Brent Tegler made on 15th August 1995 who was
the Environment Officer for the Western Province.
Ins of Clause 30, the
breaches having been identified were brought to the notice of thef the company.
Once the breaches
were confirmed, the Commissioner of Forests acted upon
them, ordering suspension of the first defendant’s operation effective
from
12th November 1992. It would appear from the Report by the AFO
(Ag) that the company has taken steps to remedy the breaches. That
AFO’s
Report made following the Order of the Court, recommended that the company
must continue to take steps to improve
its operations.
The plaintiff's action was
based on breaches of the TRA.e are materials on the file file, sufficiently
capable, in my
view to show a cause of action against the first defendant in
this case, based on the alleged breaches of the TRA alone. Whether
they can
succeed or not is not for the court to say at this stage, suffice, of
course, to say that if the action is one
which is “obviously unsustainable”
then the court would not allow the case to proceed. I think, however, it
would only
be obviously unsustainable if there was no material to support
that alleged breaches at all. Attorney General of Duchy of Lancaster v L
& NW Rly [1892] 3 Ch. 278. In this case, the Reports do contain
materials, which give the plaintiff a good ground to continue the action
against,
at least, the first defendant.
Should the plaintiff as a
trustee bring this action<
[1988-89] SILR 78 and Luke v South Kensington Hotel
Co. [1879] UKLawRpCh 96; [1879] 11 Ch D 121, that is to say that one or some only of the
trustees cannot act without the agreement of the remainder of the trustees.
However I accept Mr. Watts argument, that like in those cases the question
as to the position of the trustees ought to
be fully considered at the trial
and there is good reasons for that. The position of the plaintiff as a
representative
of his tribe in a land related dispute as in this case is
closely link with his Customary rights in the land. Thus, the regime
under
which the plaintiff draws his authority in such a situation cannot simply be
meted out against the provisions of
the Trustee Act, 1925 of
the United Kingdom, lest we may be placing one source of law, i.e. an Act of
UK Parliament of general application,
above another source, i.e. customary
law which is an equal source of law in this country. Allied to that
consideration
would be the argument raised by Mr. Watt regarding the terms
of the trusteeship or representation placed upon the plaintiff
so as to
project the interests if those whom he represents. That can only be fully
appreciated at the trial and not in
an application such as the present one.
Conclusion
Thus on the material before the
Court I am satisfied that thintiff has a cause of actioaction to pursue
against the first
defendant. There is no cause of action against the 2nd
& 3rd defendants and the order joining them as parties to this action
must be discharged.
p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Order
The action to proceed to trial
against the first defendant.
Costs of 2nd and 3rd
(GJB Muria)
CHIEF JUSTICE
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