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Varo v Mali [2005] FJHC 303; HBC0169.2003 (1 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0169 OF 2003

BETWEEN:

TANIELA NAIKA VARO
of Narokorokoyawa Village, Turaga ni Mataqali Drakoro
suing on his own individual capacity and also for an on behalf of the
individual members of the Mataqali Drakoro
PLAINTIFF

AND:

ILAMI MALI
of Koroaca Village, Sabeto
FIRST DEFENDANT

NATIVE LAND TRUST BOARD
a body corporate duly constituted body under the
Native Land Trust Act Cap 133.
SECOND DEFENDANT

NATIVE LAND & FISHERIES COMMISSION
a duly constituted body under the Native Land Trust Act Cap 133
THIRD DEFENDANT

Nacolawa & Co for the Plaintiff
Pillai Naidu & Associates for the First Defendant
(City Agents S B Patel & Co)
Solicitor for the Second Defendant ...............
Office of the Solicitor General for the Third Defendant

Date of Hearing: 6 October 2003
Dates of Submissions: 3 November, 1 December and 15 December 2003
Plaintiff’s Submissions Received: 17 December 2003
Date of Ruling: December 2005

INTERLOCUTORY RULING OF FINNIGAN J

In a Writ issued on 21 May 2003 the Plaintiff sought eight different remedies in respect of a dispute that he raises about certain Native Lands. In an Interlocutory Summons issued the same day he seeks the same eight remedies on an interim basis. It is generally known by now that this practice is not highly regarded by the Court.

On 6 October 2003 on the Interlocutory Summons Byrne J called for “written submissions on the matter of law involved” and fixed the timetable (above). In the event only the Plaintiff filed submissions and these were six weeks late (17 December 2003). On 7 November 2005 the Plaintiff’s lawyers wrote to the Court requesting a ruling. Byrne J has left the jurisdiction. I have read the file and now issue this interlocutory ruling.

First, what was the “matter of law involved” which Byrne J wished to determine? Second, is this a matter which is within the jurisdiction of this Court?

Both questions seem to have been recognized by the Plaintiff after the issue of the proceedings because on 18 June 2003 he issued another writ which contained an amended statement of claim. The amendment was inclusion of the Third Defendant and one new pleading (para. 4) that “the Third Defendant is ...... a body vested with powers to determine boundaries and ownerships of Native Land and to determine the traditional positions and/or posts of Mataqali members and other matters pertaining to the Fijian Traditional Societies”.

On 17 February 2004, two months after the Plaintiff’s submissions were filed, the Third Defendant acknowledged service of the writ containing the amended Statement of Claim. On 21 April 2004 it filed a Statement of Defence. The Third Defendant is the only party to have shown any interest in this proceeding. The other parties have filed neither Statement of Defence nor submissions and the Third Defendant itself has filed no submissions. Its Statement of Defence came very late, apparently without leave and without objection. I do not know whether it has been served on the Plaintiff or the other parties. Nonetheless, if its pleadings were to be upheld at trial, they would be a complete defence to the Plaintiff’s claims.

In respect of the amendment of the Statement of Claim the appropriate provision is Order 20 Rules 1 to 3 of the High Court Rules, which includes provision for addition of a party. I am making this ruling on the documents as filed though it is not clear to me whether the main documents i.e. the amended Statement of Claim and the Statement of Defence to that have been filed in compliance with those rules.

The Point of Law Involved:

The submissions filed by Counsel for the Plaintiff are of absorbing interest. They set out fully the Plaintiff’s concerns. However, there is no reference to any point of law. To the contrary there are many assertions of fact and indeed some documents are annexed by way of further evidence. Though I have enjoyed reading them, I am no closer to knowing how this Court can assist the Plaintiff. He himself pleads that the Third Defendant is a body which has the powers to determine the issues which he raises. From his submissions it appears he does not have the support of the Third Defendant in his claims. The Third Defendant in its Statement of Defence succinctly sets out why.

Conclusion:

What the Plaintiff must do is persuade this Court that in not supporting him the Third Defendant is acting in some way contrary to law. The submissions filed in support of the interlocutory summons do not do that. In any event, Counsel are now aware that this Court no longer defers hearing of substantive actions while it spends time on considering whether to grant the substantive relief by interlocutory process on untested affidavits.

Therefore I dispose of the interlocutory summons by dismissing it. As for the substantive action I have very strong doubts that this Court has the capacity to resolve the factual issues raised by the Plaintiff and whether there is any point of law. If the Plaintiff does not have the support of the Third Defendant his task is to persuade the Court that the Third Defendant is somehow wrong in law.

This matter will be listed in the next callover on 24 February 2006 so that it can be allocated a hearing date. This is primarily for the purpose of bringing the Plaintiff and the Third Defendant together. The Court will be happy to assist if it can. I am not yet certain that it will go to trial.

I make no order for costs.

D D Finnigan
JUDGE

At Lautoka
December 2005