IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0124 OF 2001L

BETWEEN:

CHANDRA MANI
d/o Chin Samy
Plaintiff

AND:

THE DIRECTOR OF LANDS and
THE ATTORNEY GENERAL OF FIJI
Defendants

AND:

KANDA SAMY BALAK
Applicant

Mr. A.K Narayan for the plaintiff
Ms. S. Tabaiwalu for the defendants
Ms. N. Khan for the applicant on the Summons

Date of Hearing: 7 October 2005
Date of Judgment: 28 October 2005

JUDGMENT

The applicant by Summons filed on the 10th August 2005 seeks to be added as a party to these proceedings. The application is made pursuant to Order 15 of the High Court Rules and purportedly the inherent jurisdiction of the Court.

The applicant also brings a further Summons filed on the 24th August 2005 seeking orders that the consent orders made between the plaintiff and defendants on the 11th August 2005 be cancelled forthwith.

The history of this matter is an indictment on the judicial system of this country. The substantive action was brought by the plaintiff against the defendants by way of an Originating Summons on the 14th May 2001. Evidence was received by the Court by way of affidavits in 2001 and judgment reserved. Judgment was ultimately delivered on the 20th August 2004. The effect of that judgment was that the plaintiff was entitled to an extension of State Lease No. 8199 for 20 years with effect from the 1st January 1996 and that the defendant should process the same forthwith.

On the 2nd July 2004, however the defendant, the Director of Lands, issued Crown Lease No. 15442 for a term of 30 years in favour of the applicant with respect to the same parcel of land.

Due to the failure of the defendants to comply with the orders made by Mr. Justice Gates, the plaintiff made an application by Summons issued on the 6th July 2005 for further orders. On the 11th August 2005, this Court made consent orders in accordance with Clauses 1, 2 and 3 of the plaintiff’s application.

It is quite apparent that the Court had no jurisdiction to make Order 1. It is quite clear the Court has no jurisdiction to order a person, not a party to the proceedings, to take certain action. It is indeed regrettable that the Court was led into error by counsel for the plaintiff and even more so, that the Court was led into error by the Attorney General’s Chambers.

Counsel are officers of the Court and when the Court is dealing with an extensive list of matters on a Friday to be led into such a fundamental error shows a clear lack of understanding by counsel of their responsibility to the Court.

It is now necessary for the orders of the 11th August 2005 to be recalled, which I now do. Having recalled the orders of the 11th August 2005, I now make orders in accordance with Clauses 2 and 3 of the plaintiff’s Summons filed on the 6th July 2005.

The application by the applicant to be joined as a party has unfortunately been made too late. The matter has been heard by the Court and a judgment has been issued and that judgment having been issued on the 20th August 2004 over 12 months ago. The dispute is a dispute between beneficiaries of an estate and the applicant is one of those beneficiaries. I do not accept that the applicant was not aware of the proceedings before the Court and he could accordingly have intervened at an appropriate point of those proceedings had he wished.

To allow the applicant to join the proceedings at this point in time would be pyric only. Nothing could be achieved and it is not for the Court to make orders that will have no effect.

In addition, it is apparent that the applicant has an application before the Agricultural Tribunal pursuant to the Agricultural Landlord and Tenant Act which application may resolve the matter so far as the applicant is concerned.

There is in the circumstances no alternate but to dismiss the plaintiff’s Summons seeking to be joined as a party. That Summons having been dismissed the plaintiff has no standing to seek the orders sought in the Summons of the 24th August 2005 and accordingly that Summons is also dismissed.

As the action taken by the applicant has brought to light the incompetence of the orders of the 11th August 2005, I do not propose to make any order for costs against the applicant.

JOHN CONNORS
JUDGE

At Lautoka
28 October 2005