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Varo v Varo [2010] FJHC 408; HBC234.2008L (5 August 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 234 of 2008L

BETWEEN:

KAVEKINI VARO and APISAI SEQATURA
Plaintiffs

AND:

ILIASERI VARO, ANARE NAVUTEVUTE and LIVINAI SOKIDRAU
1st Defendants

AND:

NATIVE LAND TRUST BOARD
2nd Defendant

AND:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
3rd Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr D Naidu for the Plaintiffs
Mr K Vuataki for the 1st Defendants
Ms I Fifita for the 2nd Defendant

Solicitors: Pillai Naidu & Assocs for the Plaintiffs
Vuataki Law for the 1st Defendants
In-house solicitors for the 2nd Defendant

Date of Hearing: 24 June 2010 and 30 July 2010
Date of Judgment: 5 August 2010

INTRODUCTION

[1] This is a dispute between Fijian landowners over their rights contained in a trust deed. The trust deed created a trust for the 14 Tokatokas for the purposes of collection of monies from the lease of their lands and for the social and economic development of their people.

[2] The two Plaintiffs were two of the first appointed trustees. The First Defendants are the Chair, Secretary and Treasurer of the trust. The Second and Third Defendants are nominal defendants and took no part in this application.

[3] The Plaintiffs allege that the trustees have improperly authorised several payments in abuse of their powers under the trust. They have sought explanations from the First Defendants without success. So they brought this action on 29 October 2008 to have the First Defendants removed as trustees and for them to restore to the trust the monies which they allege the First Defendants have misappropriated.

[4] On the same day, 29 October 2008, the Plaintiffs also filed an application for interim relief. That application eventually came to be heard by me on 24 June 2010. At the end of submissions I became concerned that the Court may not have jurisdiction to entertain the application and the action. I therefore adjourned the hearing to 30 July to hear counsel on the question of jurisdiction and allowed them to file addition submissions as the point was being raised for the first time. This judgment is on the jurisdiction point.

THE TRUST

[5] The trust in this case is called the Nakovacake Development Trust (the “Trust”). It was set up in 2006 pursuant to a trust deed made on 19 December 2006 (the “Trust Deed”) between the Board of Trustees “that comprise the 14 representatives of the 14 Tokatoka that are bonafide, registered in the vola ni kawa bula (NLC records) and living members of Nakovacake – Yavusa Tukani, Yavusa No Neiqoro and Yavusa Botiluvuka (Nadi) of Namotomoto and Navoci villages in the Tikina of Nadi (the “Board of Trustees”) and “all the bonafide, registered in the vola ni kawa bula (NLC records) and living members of” those Tokatokas (the “Beneficiaries”).

[6] The other parties to the Trust Deed were the Secretary, Chairman and Deputy Chairman as co-opted trustees, an additional co-opted trustee appointed by the Board of Trustees and two additional representatives appointed one each from the villages of Namotomoto and Navoci.

[7] The Trust Deed named the first appointed trustees which included the two Plaintiffs. The first appointed trustees were to hold office until replaced or removed by the Beneficiaries from the respective Tokatoka that they represent. They were to be responsible for and empowered to do all things necessary for the formation of the Trust. The Trust Deed recited that in a joint meeting of the Beneficiaries and first appointed trustees on 19 December 2006, it was unanimously agreed that the principal objectives of the Trust were to ensure timely collection of all income derived from their native lands, to acquire property and assets for the benefit of the Beneficiaries and to identify and determine the most effective and efficient means of attaining social and economic development beneficial to them. The Trust Deed provided for the acquisition of capital, the allocation of trust funds, the rules of the Trust and the appointment, the term and discharge of the Trustees. The Trust Deed also provided the Trustees with wide ranging duties and powers, limited their liability, provided for the rules regulating the meetings of Trustees and Beneficiaries, and for the distribution of benefits to Beneficiaries and the appointment of a manager and other staff for the Trust.

THE STATEMENT OF CLAIM

[8] The Writ of Summons and Statement of Claim was issued out of this Court on 29 October 2008. The Statement of Claim pleaded the facts as I have briefly outlined above and sought the following orders:

1. An Order that the First Defendants are removed as Trustees;
   
2. A Declaration that the First Defendants are not eligible for re-appointment as Trustees pursuant to the Trust deed at paragraph F, Rules of The Trust, sub-clause 2.3(c);
   

100. The First Defendants are to restore to the Trust the sum of $146,372.00 (One Hundred and Forty Six Thousand, Three Hundred and Seventy Two Dollars) in lieu of the Payment for Medical Treatment, Legal Costs, Telephone Expenses and External Meeting Expenses;
     

4. Exemplary Damages against the First Defendants (to be paid to the Trust), in lieu of the First Defendants refusal to provide to the Plaintiffs and other Beneficiaries proper explanations, receipts and acquittals for the Payment for Medical Treatment, Legal Costs, Telephone Expenses and External Meeting Expenses;
   
5. Costs on full Solicitor-Client indemnity basis;
   
6. Any other Orders deemed just and equitable by this Honourable Court.
   

THE DEFENCE

[9] The First Defendants filed their defence on 15 December 2008. They say in their defence that the First Plaintiff’s appointments were terminated by the peoples of their respective Tokatokas on 5 May 2008. They say that one of the payments was authorised by the trustees in a meeting in which the Plaintiffs were present and deny that all payments were not properly authorised or used within the powers of the trustees and in accordance with the objects of the trust. They also deny that the Plaintiffs sought any clarifications as they allege and in any event the trust’s financial report for the relevant period had been provided to them and the firm of KPMG has been engaged to audit the trust for 2006, 2007 and up to 30 September 2008.

THE PLAINTIFFS’ APPLICATION

[10] The Plaintiffs’ motion of 29 October 2008 sought the following orders:

1. That the First Defendants are suspended forthwith from their position as Trustees of the Nakovacake Trust pending final determination of the substantive issues in this matter;
   
2. That the First Defendants are restrained forthwith from dealing in any manner whatsoever with any monies belonging to the Nakovacake Trust;
   
3. That the Second and Third Defendants are not to release to the First Defendants any monies belonging to the Nakovacake Trust’;
   
4. That the remaining Trustees of the Nakovacake Trust meet within seven days of service of these Orders to appoint an interim Chair, Secretary and Treasurer of the Nakovacake Trust pending the meeting of all the beneficiaries of the Trust to appoint replacements for the First Defendants pending final determination of the substantive issues in this matter;
   
5. That all of the bonafide and registered beneficiaries of the Nakovacake Trust be given proper notice forthwith to meet and choose Trustees of the Nakovacake Trust to replace the first and second named First Defendants pending the final determination of the substantive issues in this matter;
   
6. That all of the bonafide and registered members of the Tokatoka Nasava, Nadi, Ba be given proper notice forthwith to meet and choose their representative Trustee to replace the third named First Defendant pending the final determination of the substantive issues in this matter;
   
7. That the First Defendants forthwith properly account to the beneficiaries of the Nakovacake Trust for the Payment for Medical Treatment, Legal Costs, Telephone Expenses and External Meeting Expenses as set out in the affidavit of the first named Plaintiff, filed herewith;
   
8. That the First Defendants forthwith instruct auditors to audit the bank account and any financial report of the Nakovacake Trust for the financial year 1 December 2006 to 1 December 2007.
   
9. That costs be costs in the cause.
   

[11] The application is said to be made pursuant to the Trustee Act [Cap 65] and O 32 of the High Court Rules 1988.

THE JURISDICTION POINT

[12] Section 16 of the Native Lands Act provides:

Settlement of disputes between Fijians in special cases

16.–(1) In the event of any dispute arising the parties to which are Fijians in connection with land in a province or tikina in which the proprietorship of the Fijian owners has been ascertained by the Commission or in a province or tikina which it may be inconvenient or inexpedient for the Commission to visit without delay or in any other case when he may deem it expedient, the Minister may delegate a member of the Commission or some other proper person to inquire into the same.

Assessors

(2) It shall be lawful for the Minister to appoint one or more persons being native Fijians to sit as assessor or assessors with the commissioner appointed as aforesaid.

Powers of special lands commissioner

(3) For the purpose of holding an inquiry under subsection (1), the commissioner shall have the same powers as those vested in the Commission and shall follow the same procedure as is laid down for the Commission in inquiries.

Proceedings to be in writing

(4) During such inquiry the commissioner shall take or cause to be taken a full account in writing of all proceedings and of the evidence.

Parties to be informed of decision

(5) On the conclusion of any inquiry held under subsection (1) the commissioner holding it shall inform the parties interested of his decision and shall transmit a copy of his decision to the scribe of the province in which the land is situate and such decision shall be publicly read at the next meeting of the provincial council.

[13] Section 6 of the Act empowers the Native Lands Commission to inquire into ownership of native land and s 17 empowers the Commission to inquire into and settle disputes on headship of the Fijian peoples. Section 16 provides for the settlement of disputes between them in special cases “in connection with” native land. The Minister is empowered to settle such “special cases” disputes. Section 7 of the Act allows a party to appeal a decision made under s 6 or s 16 to the Appeals Tribunal whose decision shall be final.

[14] Mr Naidu, counsel for the Plaintiffs argued that this case has nothing to do with native land or the appointment of a person to hold Fijian customary title. He submitted that it was purely a case of trustees being asked to account under a trust deed. The provisions of the Trust Act applied to this trust like any other trust.

[15] Mr Vuataki, counsel for the First Defendants, argued that this dispute is over the use of monies from the lease of native land and is therefore “connected with” native land. This is a dispute between Fijians and is therefore caught by s 16 of the Act.

[16] I agree with his submission. The aim of the Act seems to me to be that all disputes between Fijians in connection with their lands, customs and traditions are to be resolved by the Fijians themselves, the Native Lands Commission, the Appeals Tribunal or the Minister responsible. They are better equipped to hear and resolve such disputes which require inquiries into Fijian custom and tradition. I therefore give a wide interpretation to the phrase “connected with” as used in s 16 of the Native Lands Act.

[17] Counsel referred me to Fiji Public Service Association v Fiji and Telecommunications Ltd [1990] FJHC 85; [1990] 36 FLR 143 (28 September 1990) as a case on point that once a statute provides for a remedy or a tribunal then the plaintiff must seek his remedy as provided there and nowhere else, and it did not matter that the point was not raised or objected to by the parties. Palmer J said this:

The Defendant having refused to enter into such a recognition agreement brings into play subsection 2 of section 3 of the Act. This makes it clear that the machinery provided by the legislation for resolving a refusal of voluntary recognition is an application to the Permanent Secretary. What has happened here is that the employer has refused recognition, which he is entitled to under section 3 of the Act. I have already dealt with the proposition that the present employer is the same as the previous employer and that therefore recognition continues until determined in accordance with section 4 of the Act. The Plaintiff at least at this stage has its statutory remedy. Authority is quite clear on the point.

In Pasmore v. Oswaldtwistle Urban Council [1898] AC 394 the House of Lords, per the Earl of Halsbury, said:

"The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law."

In Wilkinson v. Barking Corp. [1948] 1 All ER 564: at 567; [1948] 1 KB 721 at 724 Asquith, L.J. said:

"It is undoubtedly good law that, where a statute creates a right and in plain language gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort this remedy or this tribunal and not to others."

It may be objected that the Defendant has not taken the point. However the Court is aware of the legislation just referred to. And in Wilkinson the Court also said:

"A party cannot submit to, so as to make effective, a jurisdiction which does not exist."

In Rothmans of Pall Mall (Overseas) Ltd and others v. Saudi Arabian Airlines Corp [1980] 3 All ER 359, at 364 Mustil J. (who was upheld on appeal) after citing the first quotation above from Wilkinson went on to say:

"Where the statute is of this kind, it is immaterial whether the parties wish the Court to try the action. It must disclaim jurisdiction, since to continue with the action would be contrary to law."

Accordingly I am of the view that this action is misconceived.

[18] The case of Narawa v Native Land Trust Board [2002] FJCA 9; ABU0012.99S (31 May 2002) is a different case altogether because it was not a dispute between Fijians.

[19] The case of Vosailagi v Mara [1992] FJHC 62; Hbc0569d.91s (4 December 1992) does not assist either because it concerned a trust over freehold land and the point was neither raised nor argued.

[20] There is also a further reason which I think this application and action are misconceived. Even if assuming for the moment that this case is not so connected as Mr Naidu submitted, he had to concede that it is possible that such a dispute, i.e. one connected with native land, could arise under the Trust Deed. For example, under clause 10(II), the Trustees have power to advance loans to a beneficiary. Suppose that a beneficiary applies but the Trustees reject the application simply because they are not convinced that the beneficiary is not registered in the NLC records. The power to decide whether a Fijian is registered or capable of being registered is vested in the Commission exclusively. A situation could arise therefore that certain types of disputes may fall outside this Court's jurisdiction and others may fall within. Such a situation will not only create uncertainty and confusion as to which is the appropriate forum but is also unsatisfactory in that both tribunals may come up with different findings and conclusions in respect of the same or similar dispute.

[21] For these reasons I find that this application and the whole action are misconceived and are dismissed for want of jurisdiction.

WHERE TO FROM HERE

[22] The resolution of this dispute is under the provisions of s 16 of the Native Lands Act. It will require the parties to approach the Minister responsible for native lands to appoint a special Commissioner to resolve it. If a party is not happy with the decision he may appeal to the Appeals Tribunal under s 7 of the Act whose decision shall be final: Namatua v Native Lands and Fisheries Commission [2005] FJCA 85; ABU0020.2004S (4 March 2005); State v Native Lands Appeals Tribunal [2009] FJHC 164; HBJ 2 of 2009L (14 August 2009); Yavutu v Vunisa [2010] FJHC 18; HBC318.2008L (28 January 2010); Naimila v Apisalome [2010] FJHC 156; HBC187.2009L (7 May 2010).

[23] I note from Namatua v Native Lands and Fisheries Commission [2005] FJCA 85; ABU0020.2004S (4 March 2005) that the Court of Appeal ordered that the status quo be maintained until the real dispute was resolved under s 16 by the Commission or by the Appeals Tribunal if the matter taken on appeal. I do not think it is necessary to make such orders here and leave it to the parties to resolve this matter. However, I think it should be obvious that the Plaintiffs having now been dismissed by their people should stay out and allow the beneficiaries to elect two new trustees. I do not think it is wise to stop any payments in the hands of the NLTB from being released to the beneficiaries as this maybe their only source of income. I have said on other occasions that if moneys had been paid to persons not entitled to then it would be a simple matter of accounting to correct it.

COSTS

[24] As in previous cases of a similar nature I make no order as to costs and any previous costs orders in this matter are set aside.

ORDERS

[25] The Orders are as follows:

1. The Plaintiffs motion and writ filed herein on 29 October 2008 are dismissed for want of jurisdiction.
   
2. There is no order as to costs and all previous costs orders are set aside.
   

Sosefo Inoke
Judge