IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 296 OF 1998

Between:

WAISEA MATAITINI
Plaintiff

And

DIRECTOR OF LANDS

NATIVE LAND TRUST BOARD

CONSERVATOR OF FORESTS

THE MINISTER OF COMMERCE,
TRADE & PUBLIC ENTERPRISE

THE ATTORNEY-GENERAL OF FIJI

FIJI HARDWOOD CORPORATION LIMITED
Defendants

Mr. I. Tuberi for the Plaintiff
Mr. S. Banuve for the 1st, 3rd, 4th & 5th Defendants
Ms. Alanieta Vakatale for the 2nd Defendant
Mr. W. Clarke for the 6th Defendant

DECISION
(Application for Leave to Appeal)

By summons dated 25 April 2000 the Native Land Trust Board (the second defendant - the ‘D2') has made an application to the Court that leave be granted to it pursuant to section 12(2)(f) of the Court of Appeal Act to appeal to the Court of Appeal against the interlocutory decision of this Court delivered on 31st March 2000. An affidavit in support has been filed.

Before I proceed to consider the application I think I ought to state the last two paragraphs of my said decision to give a picture of what was involved. I stated:

"As I have already stated the Plaintiff has a standing based on representative action under Or 15 r.14. On the facts of this case in applying Rule 18 I have in mind that ‘it is not the practice in civil administration of the courts to have a preliminary hearing, as it is in crime’. In deference to the very comprehensive submissions with authorities made by counsel for all the parties, I would just say that these authorities will be very useful in the trial of the action. In considering this application, it is noted that under Or 18 r.2 "no evidence shall be admissible on an application under paragraph (1)(2)".Therefore I rely solely on the facts provided and the facts revealed and that the Plaintiff has instituted this action under representative proceedings (Or 15 r.14). Whether or not the Plaintiff actually represents the Mataqali has to be proved by him in the trial.

To conclude, on the facts before me I am satisfied that the plaintiff has locus standi to commence these proceedings and that there is a reasonable cause of action. This is not a case where recourse could be had to the summary process under Rule 18. In the exercise of my discretion bearing in mind the facts and circumstances of this case I dismiss the defendants’ application to strike out the action with costs in the cause AND I direct that the action now proceed in the normal way."

Section (12)(2)(f) under which the application for leave is made provides (inter alia) as follows:-

"No appeal shall lie without the leave of the judge or of the Court of Appeal from any interlocutory order or interlocutory judgment made or given by a judge of the Supreme Court, except in the following cases, namely: ..... ......".

It is D2's contention that the plaintiff must be put to strict proof of his status as representative of the Mataqali Nakauraki before we proceed to trial and that with such onus being upon the plaintiff the appeal against the decision granting the plaintiff locus standi would succeed. The defendant therefore submits that the plaintiff has no locus standi to institute these proceedings which is an abuse of the process of the court. Also it says that the plaintiff must be put to strict proof of his representative capacity at the interlocutory stage instead of at trial.

The plaintiff through his counsel opposes the application stating, inter alia, that section 23 of the Native Lands Act Cap. 134 does not bar any native landowner from bringing any action against the Native Land Trust Board (D2). The plaintiff is not barred by the provisions of s.23 from bringing this action in a representative capacity.

The said s23 provides as follows:

"23(2) - (1) All actions, suits and proceedings respecting native land or respecting any lease, licence or permit relating thereto, or respecting the breach of any covenant contained in any such lease, licence or permit or respecting any trespass on such land, or any damages accruing by reason of such trespass or for the recovery of any rents or fees, or relating to any damage or wrong whatsoever in respect of such land, may be commenced, prosecuted and carried on in the name and title of the Board.

(2) In any such action, suit or proceeding the Board may be represented by any barrister and solicitor or by any officer or servant of the Board duly authorised in that behalf."

This section was interpreted by Cullinan J in Waisake Ratu & Others v Native Land Trust Board, Civil Action No. 580 of 1984 and referred to by me in my said decision at page 5 which in effect says that a representative action as in this case can be brought.

The plaintiff submits that with the established authorities supporting the locus standi of representative actions with regard to section 23 the defendants have no likelihood of success in the appeal if leave is granted. He further submits that section 29(2) of the Constitution Amendment Act 1997 which provides as follows clearly overrides any restrictions that D2 may rely on as far as locus standi of the plaintiff is concerned:

"29(2) Every party to a civil dispute has the right to have the matter determined by a court of law or, if appropriate, by an independent and impartial tribunal."

The plaintiff submits that leave to appeal be refused and that the action should proceed on its normal course.

Consideration of the application

I have considered the arguments put forward by both counsel (for D2 and plaintiff) for their respective parties. This Court has given its decision based on authorities as set out therein. The defendant is of the view that on the grounds and reasons given by it, a higher court’s pronouncement on the correctness or otherwise of the decision is important.

It is my estimation that this type of action in a representative capacity could be the forerunner of many such actions hence an authoritative decision of the Appeal Court on the point will serve a useful purpose.

The following test has been laid down in considering the granting of leave as stated in The Supreme Court Practice 1979 Volume 1 under Or.59 r.14(2):

"The Court of Appeal will grant leave if they see a prima facie case that an error has been made ... or if the question is one of general principle, decided for the first time ... or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage". 

The defendant has attacked the Court’s decision on a number of grounds. It maintains that it has a reasonable prospect of success in the appeal if leave is granted.

An authoritative decision on criterion to be adopted for leave to appeal has been clearly stated as follows in Smith v Cosworth Casting Processes Ltd. 
(The Times Law Reports; 28 March 1997 at 40) before Lord Woolf, Master of the Rolls, Lord Justice Peter Gibson and Lord Justice Swinton Thomas:

"A court was entitled to grant an application for leave to appeal even if it was not satisfied that the appeal had any realistic prospect of succeeding.

There might be many other reasons why the court thought it desirable that the appeal should proceed. It was a misconception to assume when only one reason for granting leave was mentioned by the court that it was the only reason".

The Court further stated as follows on whether prospect of success is a criterion for leave to appeal:

The court would only refuse leave if satisfied that an applicant had no realistic prospect of succeeding on the appeal. The "no realistic prospect" test was not meant to be any different from the test which was sometimes called "no arguable case".

The Court said that the ‘use of the word "realistic" "made it clear that a fanciful prospect or an unrealistic argument was not sufficient" (ibid). The Court further stated that as an example, the "issue might be one which the court considered should in the public interest be examined by the Court of Appeal, or that it raised an issue, where the law required clarifying". In the instant case obtaining of clarification on the law is needed.

For these reasons leave to appeal to Court of Appeal is granted.

D. Pathik
Judge

At Suva
18 September 2001