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Vuki v Qoro [2004] FJHC 503; HBC0294.2003L (8 November 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0294 OF 2003L

BETWEEN:

RATU TIMOCI VUKI
Plaintiff

AND:

VERO QORO
1st Defendant

AND:

APISAI NAWEILULU
2nd Defendant

AND:

KAVEKINI VARO
3rd Defendant

AND:

ANARE NAIVUTEVUTE
4th Defendant

AND:

TOMASI NAULUMATUA
5th Defendant

AND:

NATIVE LAND TRUST BOARD
6th Defendant

AND:

JORETI DAKUWAQA
7th Defendant

AND:

HOUSING AUTHORITY
8th Defendant

AND:

JOVECI TUINAMUANA
9th Defendant

AND:

ESEROMA TIVULU
10th Defendant

Counsel:
Mr. I. Fa for the plaintiff
Mr. G.P. Shankar for the 1st to 5th defendants
Mr. R. Gordon for the 6th defendant

Hearing & Ruling: 8 November 2004

EXTEMPORE RULING

This matter comes before the court by way of a Summons filed on behalf of the first to fifth defendants, wherein those defendants seek an order that an injunction granted by me on the 11^th December 2003, be varied by release of the sum of $40,000.00 to the applicant.

In support of the Summons, the applicants rely upon the affidavit of Apisai Naweilulu filed on 2^nd November 2004. In that affidavit, it is deposed that the monies are required or desired to pay for the funeral and other traditional ceremonies with respect to the death of Moses Namumu.

The application is opposed by the plaintiff and by the Native Land Trust Board, which makes up the 6^th, 7^th and 8^th defendants. There is no appearance on behalf of the 9^th and 10^th defendants.

The plaintiff relies on an affidavit of Ratu Timoci Vuki filed on the 8^th November 2004. In that affidavit, the deponent says the sum of $40,000.00 is excessive and detail particulars of the deaths of other significant members of the 3 Yavusa and suggest that the costs of the funeral and other traditional ceremonies is the responsibility of the family and relatives from within the village.

The Native Land Trust Board and by that phrase I mean, the 6^th, 7^th and 8^th defendants rely upon an affidavit of Tevita Bukarau filed on 8^th November 2004. That affidavit deals with issues that arise as I understand it, from the substantive matter in issue between the plaintiff and the defendants, that is, the entitlement of the first to fifth defendants to rental income from certain land near Nadi. The affidavit also seeks to highlight the dispute and the lack of entitlement to the monies by the applicant.

There is clearly a significant dispute between the parties as to the entitlement of the first to fifth defendants, the monies held by the Native Land Trust Board being lease monies. The first to fifth defendants may have an entitlement to those monies and that entitlement may be to an amount of $40,000.00 but it

equally may be that the first to fifth defendants when the ultimate proceedings are dealt with in fact have no entitlement or have an entitlement to an amount less than $40,000.00.

There is insufficient material before me on this application to enable a decision to be made on that issue, and that is as one would expect it to be because that in fact is, the substantive matter that has been before the court for the last 12 months.

I notes in passing in December of last year when I granted the injunction, I transferred the file from Suva to Lautoka to follow me so that it could have an early hearing date and the matter was in fact listed for hearing, I think in January 2004. Regrettably, the matter was not dealt with then and has not been dealt with, if it had and if all parties adhered to the timetable set then perhaps the issue would not be before the court because the substantive issue would have been resolved.

For the reasons that I have briefly outlined, I think there is insufficient certainly from the material before me that the applicants have an entitlement lest alone an entitlement to $40,000.00 and accordingly, I refused the orders sought and dismissed the Summons.

In the circumstances I think it appropriate that an order for costs follow the event, however I am not prepared to make an order for indemnity costs all be it that I might have some sympathy for that application in the circumstances, I order that the first to fifth defendant pay the plaintiff and 6^th, 7^th and 8^th defendants costs of this application.

I urge the parties to do all possible to have this matter in a state ready for trial at an early date to avoid issues and frustrations such as this coming before the court. Clearly, it is an emotional application and clearly at the end of the day, if it is, that the first to fifth defendant, the applicants on this Summons have an entitlement to money that exceeds $40,000.00 or is $30,000.00 then today’s decision would seem very harsh. But with the information that is before me I see no alternate but to refuse it but I urge the parties, that if the matter can’t be resolved, to have it in a state that it can be litigated at an early date.

Orders

1. Summons dismissed.

2. First to fifth defendants to pay the plaintiff and 6^th, 7^th and 8^th defendants costs of this application.
   

JOHN CONNORS

JUDGE

At Lautoka

8 November 2004