Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Narawa v Native Land Trust Board [1998] FJHC 213; Hbc0232d.95s (16 December 1998)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0232 OF 1995

Between:

1. MESULAME NARAWA
2. RAITUBE MATANABUA
Plaintiffs

- and -

1. NATIVE LAND TRUST BOARD
2. THE CONSERVATOR OF FOREST
3. THE MINISTRY OF AGRICULTURE,
FISHERIES & FORESTS
4. TIMBERS (FIJI) LIMITED
5. THE ATTORNEY GENERAL OF FIJI
Defendants

Mr. I. Fa for the Plaintiffs
Mr. N. Nawaikula for the 1st Defendant
Ms. M. Sakiti for the 2nd, 3rd and 5th Defendants
Mr. A. Seru for the 4th Defendant

RULING

On the 10th of May 1995 the plaintiffs issued an Originating Summons in which they are described as 'suing jointly and on behalf of the members of the Yavusa Burenitu of Serua. They were plainly suing in their personal capacities and also in a representative capacity.

In the Originating Summons the plaintiffs seek various declaration and other orders against the defendants in relation to alleged breaches in the grant and performance of various duties and provisions of two timber concession agreements, namely, the Navutulevu Concession Agreement and the Navua Concession Agreement granted in January 1985 and November 1983 respectively, by the 1st and 2nd defendants to the 4th named defendant company.

At the outset I note that no reliefs are sought against the 3rd and 5th defendants nor, so far as I can ascertain, have any allegations of impropriety been made against either defendant in the primary affidavit filed in support of the Summons. Indeed the 3rd and 5th defendants appear to have been joined as a matter of caution and perhaps to comply with the provisions of the Crown Proceedings Act.

I am satisfied despite the absence of a formal application in that regard, that the 3rd and 5th defendants are unnecessary parties to this action and accordingly are formally struck out in exercise of the Courts power under Order 15 r.6(2)(a).

In opposing the plaintiff's Summons a director of a company which 'now owns the 5th defendant company' challenged the regularity of the plaintiff's claim to represent the members of the Yavusa Burenitu which comprises eleven (11) separate mataqali's with a total membership numbering in the hundred. He also questions the right of the plaintiffs (and indeed the Yavusa they claim to represent,) to sue for alleged breaches of timber concessions of which they are not parties albeit that the Yavusa may own the lands over which the timber concessions were granted.

The Deputy Conservator of Forests whilst denying any knowledge of alleged breaches of the timber concessions differs as to the composition of the mataqali's that comprise the Yavusa.

For his part, the Secretary of the 1st defendant Board denied that the plaintiffs 'have any locus or any authority instructions or approval by the people of the Yavusa Burenitu to bring this actions on their behalf' as evidenced by thirteen (13) annexure letters from individual members and various traditional leaders comprised within the Yavusa Burenitu 'denying they have either consented or agreed nor instructed the plaintiffs to bring this action on their behalf'.

He further deposed to settlement talks that had been pursued between the defendant Board and native owners relative to the concessionaire's breaches and non-performance of the timber concessions and he sets out the terms of settlement arising from the discussions which included compensation payments and the construction of a sawmill which have subsequently been performed.

The first plaintiff countered with his own series of annexure letters signed by the traditional heads of the eleven (11) mataqali's that comprised the Yavusa Burenitu and several affidavits from individual members explaining the suspicious circumstances under which they had appended their signatures to the Board's annexure letters. All reaffirmed their support for the plaintiffs continuing with the action.

Faced with what appeared to be conflicting 'authorities' which the 1st plaintiff conceded raised 'complex factual issues which cannot be fully resolved on affidavit evidence alone', counsel issued a motion on 13th September 1995 seeking an order to cross-examine the deponents of affidavits filed on behalf of the 1st, 2nd and 4th defendants.

By now it had become quite obvious that the plaintiffs 'locus standi' to bring the action was being vigorously opposed and counsels were ordered to file an appropriate application. This was done on 6th December 1995 by counsel for the defendant Board and after necessary affidavits were filed, was heard on 8th March 1996.

It is a matter of personal embarrassment to have to record that the relevant court file was misplaced in the interim and was only re-located on counsel's 3rd reminder letter. For this I must bear sole responsibility and I do apologise for any inconvenience caused by the inordinate length of time taken to deliver this ruling on a fairly straightforward interlocutory matter.

Counsel for the defendant Board in his written submission on the locus question states:

"It is now a well established principle of the laws of Fiji by substantive authority that a member of a mataqali cannot sue personally in respect of a collective right as in an action concerning or effecting (sic) common ownership of a mataqali land. The reason is because mataqali land is not owned by an individual but by the mataqali as a unit whose members are individuals in their life time and others yet to be born."

Counsel cites five (5) local judgments of the High Court in support of the above proposition and writes:

"The plaintiffs have no locus to institute these proceedings and further they have not provided sufficient evidence to establish a common interest, common grievance or the fact that the relief they are seeking will be beneficial to all the people of Yavusa Burenitu in accordance with the requirements of Or.15 r.14."

Counsel for the plaintiffs for his part equally forcefully submits that:

"Under Or.15 r.14 the plaintiffs are entitled to commence a representative action where the people whom they represent have a common interest, a common grievance and the relief they seek is beneficial to all whom they represent."

Furthermore counsel submits the plaintiffs are:

"not aware of any statutory provision which prohibits them from instituting this proceedings in a representative capacity or at all, the closest provision that may be applicable is Section 23 of the Native Lands Trust Board Act but this is not raised."

and counsel draws support from 2 unreported judgments of the High Court namely, Waisake Ratu and Another V. N.L.D.C. and N.L.T.B. Civil Action 580 of 1984 and Ratu Malakai Waqatabu v. N.L.T.B. and Josefata Davui Civil Action 323 of 1993.

I have carefully considered both judgments and although there is interesting dicta which tends to support counsels submissions, I am nevertheless satisfied that both judgments are easily distinguishable from the present case on their facts in so far as, in both cases the plaintiff was pursuing a personal right in the land and/or fixtures on it.

Suffice it to say I am satisfied from the evidence and submissions before me that the plaintiffs' action as constituted purports to be a representative one brought pursuant to Order 15 r.14 of the High Court Rules.

Further, the plaintiffs are not asserting a claim or right in their personal capacities or for which they have suffered any special damage, rather, they are asserting what has been conveniently described as 'collective rights' which belong to the respective mataqalis as owners of the lands over which the timber concessions were granted and of which, it is common ground, neither the plaintiffs nor the Yavusa Burenitu nor the eleven (11) mataqalis nor its individual members are either named parties or signatories.

There being no privity of contract existing between the plaintiffs or the Yavusa which they seek to represent, and the defendants how then, it is argued, can they seek to enforce or terminate the concession agreements?

The plaintiffs confront this 'problem' by alleging breaches by the defendant Board of its fiduciary duties as the statutory trustee of all native lands charged with the administration of such lands 'for the benefit of the native owners'. In particular, the plaintiffs specifically allege that to allow the 4th defendant company to continue to breach the concession agreements by its non-performance of various terms without enforcing or cancelling the concession agreements, is inimical to the interests of the landowners which the plaintiffs claim to represent, and a breach of the defendant Board's statutory duty and therefore they are entitled them to challenge or enforce the concession agreements. At best the argument is of doubtful merit.

Order 15 r.14(1) reads:

"Where numerous persons have the same interest in any proceedings, ... the proceedings may be begun, and, unless the Court otherwise orders, continued, by ... any one or more of them as representing all or as representing all except one or more of them."

In Smith and Others v. Cardiff Corporation (1954) 1 Q.B. 210 the English Court of Appeal in discussing the equivalent of the above Order:

"Held: That to bring a representative action under R.S.C. Ord.16 r.9 it must be shown: first, that all the members of the class had a common interest; secondly, that they all had a common grievance; and thirdly, that the relief was in its nature beneficial to them all."

In Timoci Bavadra v. N.L.T.B. Civil Action No. 421 of 1986 where the applicant sought leave under Or.15 r.13 to institute a representative action on behalf of a Tokatoka of which he was a member, Rooney J. whilst allowing for the possibility of a representative action in that case said, at p.4:

"Even if the plaintiff could show that he had the support of the majority of the adult members of the land holding unit this would not necessarily give him or the people he represents the right to sue. That depends on the nature of a Fijian land holding unit.

As I said in the Dikau case (Civil Action 801 of 1984):

'a mataqali cannot be equated with any institution known and recognised by common law or statute of general application. The composition, function and management of a mataqali and the regulation of the rights of members in relation to each other and to persons and things outside it are governed by a customary law separate from and independent of the general law administered in this Court.'"

and later at p.8 of Dikau's judgment his lordship said:

"It was established in Meli Kaliavu and Others (5 F.L.R. 17) that individual members of a mataqali have no locus standi to sue and recover damages in their own personal capacity or to obtain an injunction. Their right to obtain a declaration must similarly be circumscribed. Such rights as they may have as members of a mataqali are not founded on the common law or any statute."

As for the possibility of a representative action under Order 15 r.14 Rooney J. said at p.7 of Bavadra's judgment:

"The plaintiff and his associates may be permitted to proceed ... if they can establish 'a common interest and a common grievance' and 'if the relief sought is in its nature beneficial to all whom the plaintiff proposes to represent'. I take the view that the establishment of such a premise presents formidable difficulties, unless the plaintiff can show that the constitution, management and functions (of the native landholding unit) are such that it meets that requirement."

I agree entirely with those comments and would only add that on the affidavit evidence before me it is not at all clear or established that the various mataqalis comprised within the Yavusa Burenitu have either a 'common interest or purpose' in the proceedings or that the reliefs sought, especially the cancellation of the concession agreements, would be 'beneficial to all'.

In my view the plaintiffs have no 'locus standi' to bring or continue the present action and it is accordingly dismissed with costs to the defendants to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
16th December, 1998.

HBC0232D.95S