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Rasoki No 2 v Fa [1998] FJHC 113; Hbc0103.98 (22 July 1998)

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Fiji Islands - Rasoki No. 2 v Fa - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL ACTION NO. HBC 103 OF 1998

BETWEEN:

:

ATUNAISA LACABUKA RASOKI NO. 2
Plainti>

AND:

ISIRELI FA Defendant

Adi Sivo Ganilau for the NLTB
S. Samuels for the Defendant

DECISION

On 11 February 1998 the Plaintiff commenced proceedings by way of Originating Summons seeking an injunction restraining the development of a hotel complex at Vunilau, Deuba Village Serua by the Defendant his servants or agents, a mandatory injunction according the right to the Plaintiff Company to build the complex and various other reliefs including damages for trespass.

On 2 March the Defendant filed a Motion to Strike Out the Action under the provision of RHC 018 r 18.

On 15 April the Plaintiff filed a document entitled "Statement filed pursuant to order 53 Rule 3 (2) of the High Court Rules 1988" together with a supporting affidavit. This lengthy affidavit was answered by a short affidavit by the Defendant seeking dismissal of the proceedings on the basis that they disclosed no reasonable cause of action.

On 26 May a further affidavit was filed by the Plaintiff together with a lengthy written submission and on 29 May I heard the Plaintiff and Ms Lutu for the Defendant.

I do not propose to attempt to summarise the Plaintiffs complaints as set out in the documents filed: they are difficult to understand and it would be unfair for me to attempt to do so. It appears however from the oral submissions that the Plaintiff who is the Managing Director of a construction company claims against the Defendant who is the legal adviser to another construction company on the ground that the company which the Defendant represents has breached the conditions upon which the right of access over native land was granted.

Having heard the Plaintiff and Ms Lutu I delivered a short interim ruling on 28 May requesting the intervention of the NLTB, the trustee of the land in question.

On 16 July the NLTB filed an affidavit the effect of which was that the Plaintiff did not represent his mataqali and that the developments which were taking place by Haven Development (Fiji) Ltd had the approval of the adjoining native owners.

At a resumed hearing on 20 July Adi Sivo Ganilau on behalf of the NLTB told me that there was some concern that there might have been unauthorised access over the adjoining land and that she wished to have this further investigated. Mr. Samuels contented himself with questioning both the locus standi of the Plaintiff and the propriety of bringing these proceedings against the developer's solicitor. The Plaintiff told me that the situation on the ground was very tense and asked me to "order a police report."

It is evident to me from the papers filed and from what I was told that this development has been the source of much disagreement. Unfortunately such disagreements and ancillary legal proceedings are all too familiar to the Courts and are probably the inevitable by-product of development. The role of the Court is however clear: it is not to act as a general ombudsman looking into all the alleged rights and wrongs placed before it, rather it is to determine whether there has been infringement of the Plaintiffs legal rights by the Defendant as alleged and if so to grant relief.

Although the whole scope of the Plaintiffs complaints is not entirely clear I am satisfied that he has not shown any cause of action against the Defendant, a mere legal adviser to the developer and that therefore the motion to strike out must succeed. As already pointed out this development affects native land. If another Monasavu-type confrontation is to be avoided then the NLTB may think it wise more fully to investigate and address the Plaintiff's complaints.

M. D. Scott
Judge

22 July 1998


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