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Chung Tat Sing v Raniga [2004] FJHC 397; HBC0214.2001L (1 April 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0214 OF 2001L

BETWEEN:

CHUNG TAT SING
Plaintiff

AND:

PRADHUMAN RANIGA
1st Defendant

AND:

MOHAN LAL & COMPANY LIMITED
a limited liability company having its registered office at Sahu Khan Street, Nadi
2nd Defendant

Counsel for the Plaintiff: Mr. K. Vuataki with Mr. K. Qoro
Counsel for the Defendant: Mr. J. Sharma

Date of Hearing & Judgment: 1 April 2004

EXTEMPORE JUDGMENT

There is before the court in this matter, three Notices of Motion, the plaintiff by Notice of Motion dated 24^th April 2003 seeks orders most relevantly that the action proceed by way of Writ of Summons, and that such Writ of Summons be filed within 14 days. In addition, the plaintiff seeks injunctive relief and costs by Inter-parties Motion filed on 24^th April 2003. The plaintiff seeks further injunctive relief and costs.

The defendants by Notice of Motion filed on 3^rd October 2003 seek an order that the plaintiff’s action be struck out pursuant to Order 18 Rule 18 of High Court Rules. The Motions are supported by affidavits of the respective parties.

When the Motions came before the court today for hearing, counsel for the defendants raised by way of a preliminary issue the fact that the consent of the Native Land Trust Board was required by the plaintiff to commence the proceedings pursuant to provisions of section 12 of the Native Land Trust Act (Cap. 134). That section provides and I quote:-

“Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void.”

Counsel for the defendants submits that the commencement of these proceedings and any orders made consequent upon the plaintiff’s application would be null and void as being a dealing effected without the consent of the Native Land Trust Board.

Counsel for the plaintiff submits that the orders sought in the Originating Summons, which is of course the foundation of the Notice of Motion seeks an order inter alia and I quote: - “Subject to Native Land Trust Board’s consent the access and car parking reserve...” enable the proceedings to continue without the necessity of obtaining the consent of the Native Land Trust Board.

The parties were both ordered by the court on 23^rd February 2004 to file skeleton submissions.

On 26^th March 2004, the issue of Section 12 of the Native Land Trust Act and its application on these proceedings were not the subject of any written submissions and only came for light at the commencement of the proceedings today.

Whilst there are three Notices of Motion before the court, it is my opinion that the Motions should be dealt with in the order in which they were filed. This would lead to the plaintiff’s Notices of Motion being dealt with first. If the court were to grant the first order sought, that would result in the plaintiff filing and serving a Writ of Summons within 14 days.

The defendants’ Notice of Motion which seeks to strike out the plaintiff’s pleading could not then be dealt with, until such time as the pleadings were amended in accordance with the order made on the plaintiff’s Motion.

In the circumstances therefore it seems the most appropriate course that enables the matter to proceed and to facilitate the issues between the parties being litigated is for the plaintiff to file a Writ of Summons within 14 days and that the other Notices of Motion be adjourned for consideration, if necessary, after their pleadings have been amended.

The defendants seek an order for costs in their favour, not only for the costs thrown away on the hearing of the Motions today but also for the costs incurred to date in responding to the Originating Summons.

I think it inexpedient to deal with the issue of costs at this time, I am of the opinion that costs should be reserved and the defendants’ application should be considered when the court has before it the amended pleadings and is in a better position to assess the costs that have or have not being wasted as a result of the plaintiff now proceedings by way of Writ of Summons.

Accordingly, I make the following Orders: -

1. The plaintiff to file a Writ of Summons within 14 days;
   
2. The plaintiff’s Notices of Motion dated 24^th April 2003 are adjourned for mention on 23^rd April 2004;
   
3. The defendants’ Notice of Motion dated 3^rd October 2003 is adjourned for mention on 23^rd April 2004;
   
4. The defendants’ application for costs of today and to date is reserved.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
1 APRIL 2004