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Dewa v Native Land Trust Board [2011] FJHC 482; HBC28.2010 (30 August 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION


CASE NUMBER: HBC 28 of 2010


BETWEEN:


FERETI SERU DEWA
PLAINTIFF


AND:


NATIVE LAND TRUST BOARD
1ST DEFENDANT


AND:


VASEVA KABU SEDUADUA
2ND DEFENDANT


Appearances: Mr. I. Fa for the plaintiff.
Ms. Macedru for the 1st defendant.
Mr. R. Singh for the 2nd defendant
Date/Place of Judgment: Tuesday 30th August, 2011 at Suva
Judgment of: The Hon. Madam Justice Anjala Wati.


JUDGMENT


Striking Out – applications by both defendants to strike out plaintiffs claim on the ground that it discloses no reasonable cause of action.
Legislations
The High Court Rules, 1988.
Cases
Dyson v. Attorney General [1910] UKLawRpKQB 203; [1911] 1 KB 410.
Guaranty Trust Co. of New York v. Hannay and Co [1915] 2 KB 536.
Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1.
Eq Musumeci v. Attorney-General NSW [2003] NSW CA 77.
Palfreyman v. Southern Metropolitan Master Planning Authority (1936) 15 LGRA 28.
Johnco Nominees Pty Ltd. v. Albury-Wodonga (NSW) Corp [1977] 1 NSWLR 43.
Australian Conservation Foundation Inc v. Commonwealth (1980) 146 CLR 493.
Bateman's Bay Local Aboriginal Land Council v. Aboriginal Community benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247.
Aussie Airlines Pty Ltd. v. Australian Airlines Ltd [1996] FCA 813; (1996) 139 ALR 663.


The Cause


  1. This is an application by both the defendants to have the claim struck out on the grounds that it discloses no reasonable cause of action.
  2. The applications were filed on the 8th day of March, 2010. The first defendant contends that the writ of summons discloses no reasonable cause of action or is scandalous, frivolous and vexatious or otherwise is an abuse of the process of the court.
  3. The 2nd defendant contends that the claim discloses no reasonable cause of action.

The Claim


  1. The plaintiffs claim is pleaded as follows:-

"1. The plaintiff is a member of the Tokatoka Matasau, Mataqali Matasau of the Yavusa Naivisere in the District of Naitasiri and Province of Naitasiri.


2. That the Yavusa Matasau together with the Yavusa Rokotuitai and the Yavusa Naisaki, (hereinafter "the Three Yavusa") collectively are the registered proprietors of 4131 (Four Thousand One Hundred and Thirty One) acres of Native Land (hereinafter "Land") in the District of Naitasiri and in the Province of Naitasiri properly described in Vol. 3 Folio 229 of the Register of Native Land.


3. That within the land collectively owned by the three Yavusa is a portion of land known as Lot 143B Bureni in the District of Naitasiri and Province of Naitasiri which is a Native Reserve Land (hereinafter "Native Reserve") for the three Yavusa.


4. That the 1st Defendant in breach of Section 16 of the Native Land Trust Act, has proceeded to issue the 2nd Defendant a lease comprising of approximately 30 acres being land know as Bureni Subdivision Lot 16 (part of) reference number 03/01874, which lease falls within the Native Reserve of the three Yavusa.


  1. That the plaintiff has advised the 1st Defendant that the lease issued to the 2nd defendant is issued in breach of Section 16 o the Native Land Trust Act and therefore null and void.
  2. That the 2nd defendant's lease interferes with the plaintiff's rights under the law to enjoy their Native Reserve freely and in accordance to law.
  3. That the plaintiff has requested the 1st defendant to terminate the 2nd defendant's lease and to remove any structures, fixtures or fittings erected or placed by the 2nd Defendant that is on the plaintiff's Native Reserve.

Wherefore the Plaintiff seeks the following remedies:


  1. A Declaration that the lease issued to the 2nd defendant by the 1st defendant being a lease over land in Bureni Subdivision Lot 16 (part of) reference number 03/01874 in the District and Province of Naitasiri is null and void.
  2. An Order that the 2nd defendant provides immediate vacant possession of the Native Reserve Land Lot 1438 Bureni in the District of Naitasiri Province of Naitasiri.
  3. An Order that the 1st defendant refrain from issuing any lease or license over Native Reserve Land known as Lot 1483 Bureni in the District and Province of Naitasiri.
  4. That the 1st and 2nd defendants, their agents and servants, whomsoever and whatsoever, be restrained by way of injunction from in any way interfering with the rights of the plaintiff, his servants or agents, whomsoever and whatsoever from enjoying their Native Reserve land in accordance to law.
  5. Costs of this matter.
  6. Damages.
  7. Any other relief this Honourable Court may deem just".

1st Defendant's Grounds/ Submissions in Support


  1. The 1st defendant's counsel submitted that the subject lease had been set aside as native reserve but was never actually proclaimed as such until 1983, by which time, the lease had already been issued to the 2nd defendant. Notices to set aside all such land as native reserve land were notices of intent rather than proclamations. The recognition of the non-reserve status of the majority of such native lands was accorded by regulation 2(a) (vii) of the Agricultural Landlord and Tenant Act (Exemption) Regulations. The issue of a lease to the 2nd defendant is not in breach of s.16 of the Native Land Trust Act, Cap 134. Since the 2nd defendant holds a valid lease, the plaintiff's claim does not have any cause of action.
  2. The 1st defendant as per its application did not submit how the claim is scandalous, frivolous and vexatious or otherwise is an abuse of the process of the court.

2nd Defendant's Grounds/ Submissions in Support


  1. The 2nd defendants counsel submitted that the plaintiff has not pleaded any cause of action against the second defendant. There is no complaint or civil wrong alleged against the 2nd defendant.
  2. The only cause of action pleaded is against the first defendant which is breach of statutory duty by issuing the 2nd defendant with a lease. The second defendant has been issued a proper lease by the first defendant. She has been issued with a lease which is issued pursuant to the Native Land Trust Act and Native Land Trust (Leases and Licences) Regulations, Cap 134 and has been registered pursuant to the Land Transfer Act Cap 131. The second defendant has good title to the land and the only thing that will upset the lease is proof of fraud. The second defendant has an indefeasible title.
  3. There is no claim against the second defendant that there was actual fraud on her part.
  4. The second defendant has an indefeasible title and would still have an indefeasible title even though the transfer or the issuance of lease was defective if the transfer and issuance of the lease were free of fraud. The plaintiff may challenge that the issuance of the lease was in breach of Section 16 of the Native Lands Trust Act but it cannot involve the 2nd defendant who merely is a bona fide holder of the lease. The plaintiff may have only a right to claim damages against the first defendant if any.
  5. It was also argued that in paragraph 4 and 5 of its statement of claim, the plaintiff alleges that the first defendant has breached or is in breach of section 16 of the Native Lands Trust Act. Section 16 has three subsections. The plaintiff must state the particular subsection that has been breached and provide particulars of the breach. Before doing this, the plaintiff has to state and raise in its pleadings what type of duty was owed to the plaintiff by the first defendant. This has not been done by the plaintiff.

Plaintiff's Grounds/ Submissions in Opposition


  1. The plaintiff's counsel submitted that the plaintiff's writ at paragraphs 4, 5, & 6 discloses its cause of action against the defendant. It was also submitted that the plaintiff's cause of action is supported by paragraphs 5, 6 & 7 of the affidavit of Savenaca Ralagi of the 1st defendant that the land in question is native reserve land as alleged by the plaintiff.
  2. Mr. Fa also argued that regulation 2(a)(vii) of the Agricultural Landlord & Tenancy Act clearly states that the ALTA does not apply to land set aside as native reserve by the 1st defendant notwithstanding that such area has not been proclaimed as such.
  3. The 2nd defendant's lease was issued on the 4th of March 1992 well after the land in question was proclaimed as native reserve in 1983 as stated by Mr. Ralagi in paragraph 5 of his affidavit.
  4. From Mr. Ralagi's evidence, it is obvious that the 1st defendant had leased the plaintiff's native reserve contrary to section 16 of the Native Land Trust Act.

The Determination


  1. The plaintiff is seeking from the court a declaration as to whether the issuance of the lease to the 2nd defendant was wrong and in breach of s. 16 of the Act. This declaration is a declaration for rights in the property to be determined by the Court.
  2. The 1st defendant does agree that the land in question was set aside as native reserve and it knew about it but proceeded to give the lease as no proclamation was made.
  3. The application for declaration is in itself a "cause of action". The question that the plaintiff wants the court to try is a real question of whether the plaintiff's rights of property have been breached and whether there has been a breach of statutory duty.
  4. There is no hypothesis involved in the claim and the court needs to hear the facts of the case from the parties via the evidence and determine the issue based on the facts and the law.
  5. There may not be a civil wrong alleged against the 2nd defendant but the declaration itself is a cause of action against the 2nd defendant too.
  6. Let us examine the legislative provisions pursuant to which the plaintiff could sue for declarations.
  7. Order 15 Rule 18 of the High Court Rules, 1988 states that "no action or other proceedings shall be open to objection on the grounds that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or not any consequential relief is or could be claimed".
  8. The case of Dyson v. Attorney General [1910] UKLawRpKQB 203; [1911] 1 KB 410 clearly discusses the subject of declarations. In this case of Dyson, order 25 Rule 5 of the English Rules gave right to sue for a declaration. Our order 15 rule 18 is verbatim of order 25 Rule 5 of the English Rules.
  9. Dyson said that order 25 rule 5 was available where no consequential relief could be granted, it is impliedly ruled that it is permissible to sue for a declaration in the absence of a cause of action. That was confirmed in Guaranty Trust Co. of New York v. Hannay and Co [1915] 2 KB 536 and has been acknowledged in countless cases since then.
  10. Our order 15 rule 18 talks about declarations of rights as in order 25 rule 5 of the English Rules in a context where the right to sue for declaration was the right. As Gibbs ACJ said in Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 23:

"The word 'right' ...is used in a sense that is wide and loose."


  1. Young CJ In Eq Musumeci v. Attorney-General NSW [2003] NSW CA 77 at [76] took that statement further, by concluding that the declaration now encompasses "rights, privileges, powers and immunities whether justifiable at law or not."
  2. Another judge, Justice Gibson said in the case of Palfreyman v. Southern Metropolitan Master Planning Authority (1936) 15 LGRA 28 that the rule created a new cause of action, which "consists in part in a subjective conclusion in the exercise of a judicial discretion that the case is one for granting a remedy by way of declaration."
  3. Accordingly to Hutley JA in the case of Johnco Nominees Pty Ltd. v. Albury-Wodonga (NSW) Corp [1977] 1 NSWLR 43 at 65 the word "right" is used in a sense broad enough to go beyond any legal bonds between the parties, but it is still confined to the "sphere of legal relations".
  4. When suing for declarations, the general law requires the applicant to have a personal stake in the issue, but that stake can be a "special interest", which is something less than a "right". See the case of Australian Conservation Foundation Inc v. Commonwealth (1980) 146 CLR 493. The courts use the term "interests" in that context, although in such a wide sense it seems that one has an interest if the court thinks there is an 'equity' worth protecting: Bateman's Bay Local Aboriginal Land Council v. Aboriginal Community benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247 at 257 per Gaudron, Gummow and Kirby JJ.
  5. It is useful to quote Lockhart's J's summary in Aussie Airlines Pty Ltd. v. Australian Airlines Ltd [1996] FCA 813; (1996) 139 ALR 663 at 670-671:-

"For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:


(a) The proceedings must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the termination of legal controversies [in re Judiciary and Navigation Acts [1921] HCA 20; (1912) 29 CLR 257. The answer to the question must produce some real consequences for the parties.

(b) The applicant for declaratory relief will not have sufficient status if relief is "claimed in relation to the circumstances that [have] not occurred and might never happen". [University of New South Wales v. Moorhouse (1975) 133 CLR 1 at 10 per Gibbs J] or if the court's declaration will produce no foreseeable consequences for the parties [Gardner v. Diary Industry Authority (NSW) (1977) 18 ALR 55 at 69 and 71 per Mason and Aickin JJ respectively].

(c) The party seeking the declaratory relief must have a real interest to raise it [Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 per Lord Kunedin; and Forster v Jododex Australia Pty Limited [1972] HCA 61; (1972) 127 CLR 421 at 437 per Gibbs J. Note that since Aussie Airlines, the requirement for a proper contradictor was seen simply as a requirement for all "necessary" parties: Merit Protection Commissioner Nonnenmacher (1996) 86 FCR 1112.]

(d) There must be a proper contradictor [Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 per Lord Dunedin and Ainsworth v Criminal Justice C omission [1992] HCA 10; (1992) 175 CLR 564 at 596 per Brennan J].

These are the rules that should in general be satisfied before the Court's discretion is exercised in favour of granting declaratory relief."


  1. The plaintiff has a personal stake and interest in the subject land and if the issue is decided in his favour, there would be some real consequences for the parties. I am therefore of the judgment that there is a cause of action against both the defendants and as such the matter should be tried.

Orders


  1. For the above reasons, the application for striking out is dismissed with costs to the plaintiff which I shall summarily assess after hearing the parties.
  2. The matter now, is to take its normal course.

Anjala Wati
Judge


30. 08.2011


To:


  1. Mr I. Fa, counsel for the plaintiff.
  2. Ms. Macedru and Mr. R Singh, counsel for the defendants.
  3. File: HBC 28 of 2010.

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