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Ralago v Digicel Fiji Ltd [2012] FJHC 1074; Civil Action 40.2012 (11 May 2012)

IN THE HIGH COURT OF FIJI IN LABASA
CIVIL JURISDICTION

Civil Action No. 40 of 2008

BETWEEN:

MANASA RALAGO of sueni Village, Wairiki, Cakaudrove, Turaga ni Tokatoka Naudrau, Turaga ni Mataqali Naudrau, Turaga ni Yavusa Wairikicake who is suing on behalf of himself and as a representative of Mataqali Naudrau, Sueni Village, Tikina of Wairiki, Cakaudrove.
1st Plaintiff

RATU JONE COLATA of Sueni Village, Cakaudrove, Farmer who is suing on behalf of himself and who is also suing as representative of Mataqali Naudrau, within Yavusa Wairikicake in the Village of Sueni, Tikina of Wairiki, Cakaudrove.
2nd Plaintiff

AKAI QAMO who is also known as Akai Kamo of Tokatoka Naudrau, Mataqali Naudrau, Yavusa Wairikicake in the Village of Sueni, Wairiki, Cakaudrove who is suing on behalf of himself and who is also suing as representative of Mataqali Naudrau within Yavusa Wairikicake, Wairiki, Cakaudrove.
3rd Plaintiff

AND:

DIGICEL FIJI LIMITED of 3 Khalsa Road, Tamavua, Suva.
Defendant

Appearances: Mr. S Fa for the Plaintiff of Fa & Co

Mr. A Pal & Mr. B Katia for the Defendant of Siwatibau & Sloan.

RULING

There are two applications before this Court for determination. The first is an application by the Plaintiff by motion dated 6 April 2009 to strike out the Defendant's defence and thereafter enter Summary judgement in its favour and the second is an application by the Defendant by Summons dated 25 August 2011 for leave to amend its Defence.

BACKGROUND

The Plaintiffs are members of the Mataqali Naudrau of the village of Sueni in the Tikina of Wairiki in the province of Cakaudrove. They claim on behalf of themselves and as representatives of the Mataqali Naudrau. The Plaintiffs claim that they are members of one of three family units called Tokatoka within the Mataqali of Naudrau. The Tokatoka's are known as Tokatoka Naudrau, Tokatoka Nabu and Tokatoka Nabukanaki. These three "tokatoka's" are traditional landowning units within the Mataqali and were by agreement allocated certain portions of land in the mataqali land for their sole and exclusive use, maintenance and support. That the portion of land the subject of this action, the land known as "Devodevomasi" form part of native land allocated for them for their use.

The 2nd & 3rd Plaintiffs by a "Deed of Trust" executed on behalf of their Mataqali on the 15 of May 2004 became trustees with powers and duties given them to act on behalf of the Mataqali. These powers include powers to deal with the mataqali's customary land and resources on their behalf and for their benefit. These powers became the locus from which they stand as plaintiffs in the action.

The Defendant on or about the 8 May 2008 trespassed on the Plaintiff's land and proceeded to develop the land by excavating it, felling trees, bushes and thereafter constructed and built a mobile telecommunication transmitting tower on it. That initially the Defendants had their development at Mataqali Navatu's land but then moved their operation to the Plaintiff's land and then proceeded to develop the land.

That as far as the Plaintiffs were concerned the said development was done without any colour of right, without their consent and without lease or licence. The plaintiff further claims that the Defendant after complaints were raised by the Plaintiffs then went and approached some members of the mataqali to consent to their trespass and development. The Plaintiff claims for compensatory damages, punitive damages, interest and costs.

The Defendant's position put simply is that it obtained the consent of the members of the Mataqali Naudrau to lease the land and paid the members of those mataqali a premium payment of $30,000:00 and could on the strength of that develop the land for its own purpose. The Defendant further said that it had now obtained a lease and had a right to remain there.

The Applications

It seems appropriate when looking at the action as a whole is to deal with the Plaintiff's application to strike out the defence and for summary judgement first before the Defendant's application, not because it was filed first but that its determination given the nature of the action will affect the need to deal with the Defendant's application.

The application was made through a notice of motion issued on the 6 April 2009 in which the Plaintiff sought the following orders:-

1. That the Defendants Defence be struck out;

2. That judgment be entered in favour of the Plaintiff; and

3. That the Defendant to pay the costs of the proceedings.

Although the Plaintiff's motion did not state under what Order the application is made it is presumed that it is made under Orders 14 & 18 of the High Court Rules.

Both parties provided extensive and detailed affidavits in support of their applications and in opposition to their opponent's applications.

The Plaintiff's affidavit in Support

By an affidavit sworn on the 20 March 2009 by Mr. Akai Qamo the 3rd Plaintiff on behalf of the Plaintiffs and in support of the application to strike out the defence said that:-

1. That the Plaintiffs are members of the Tokatoka Naudrau and that they are all registered in the Register of Native Landowners and annexed to the affidavit a copy of the Register of Native Landowners of the Tokatoka Naudrau;

2. That in the village of Sueni (from which they belong) there are three "social units" above the family units called "tokatoka", "Mataqali" and finally the "Yavusa".

3. That there is only one Yavusa in the village of Sueni which is called Yavusa Wairikicake and that this Yavusa consists of four Mataqali's one of which is called Mataqali, Naudrau.

4. That the Mataqali Naudrau of Wairikicake owns native land totalling one thousand five hundred and ninety seven (1,597) acres and annexed to the affidavit is a copy of the Registrar of Native Lands being Volume 10 in Folio 1080 which shows the location and boundaries of the said land.

5. That the said Mataqali Naudrau consists of three smaller social units called tokatoka Naudrau, tokatoka Nabukanaki and tokatoka Nabu.

6. That in these proceedings the Plaintiffs are suing as representatives of Mataqali naudrau within the Yavusa Wairikicake and annexed to the affidavit a true copy of the petituion signed by eighteen (18) members of Mataqali Naudrau.

7. That the said Mr. Qamo and the 2nd Plaintiff are also suing in their capacity as trustees of the Mataqali Naudrau and annexed to the affidavit a true copy of the Deed of Trust signed by thirty (30) members of the Mataqali Naudrau.

8. That the Defendant when it first arrived in Wairiki to set up its operation it did so on native land belonging to Mataqali Navatu and then shifted its operation to the Plaintiff's land where it built its tower and infrastructure.

9. That the Defendant did not obtain the permission or the consent of the Mataqali Naudrau to enter into its land and to build its infrastructure neither did it obtain any lease over the land from the ITaukei Land Trust Board and annexed to the affidavit a copy of a letter from the ITaukei Land Trust Board to that effect.

10. That the claim by the Defendant that it had obtained the consent of the Mataqali Naudrau to occupy its native land and that it had obtained a lease over the land is misleading and has no factual basis and that it is a trespasser and therefore it defence should be struck out.

Defendants Affidavit in Opposition

The Defendant opposes the application and filed an affidavit sworn by one Krishneel Vinay Kumar on the 8 May 2009 in which he states so far as is relevant the following:-

1. That thirty four (34) members of the mataqali Naudrau had given their consent and authority for them to carry out its development and annexed to the affidavit a letter to that effect marked as annexure "A".

2. That it had paid to the members of the mataqali Naudrau a sum of $30,000:00 as premium and that the said amount was accepted by one Mr. Ilaitia Naigani an appointed representative of the Mataqali in the presence of twenty three (23) other members of the mataqali Naudrau and annexed to the affidavit as annexure "B" a letter to that effect.

3. That the ITaukei Land Trust Board has given its consent for a lease to be granted to the Defendants.

4. That the Plaintiff's are a minority group within the mataqali who at one stage demanded that the Defendant pay an unreasonable and exorbitant amount of $80,000:00 as goodwill payment and that they do not represent the whole or the majority of the mataqali.

5. That the allegation by the Plaintiff that the Defendant did not obtain the consent of the mataqali Naudrau to occupy the land or that it had any lease over the land shows that he has made allegations without himself investigating his own clan and that annexure A and B are sufficient proof that the Plaintiff is not aware of all the facts of the case.

6. That the Defendant filed a Statement of Defence on the 4 November 2008 and that the Plaintiff filed their reply to the Defence and has joined issue with the statement of Defence and that this is not a case in which the Plaintiffs can get summary judgment.

7. That the Plaintiffs application should be struck out with costs.

The Plaintiff in response to the above affidavit in opposition filed an affidavit sworn by Mr. Akai Qamo on the 1st of July in which he states so far as is relevant the following brief facts:-

1. That they are members of the Mataqali Naudrau and are registered in the "IVola ni Kawa Bula" and are entitled to make a claim on behalf of themselves and the members of the mataqali or landowning unit to which they belong where their rights as landowners are infringed.

2. That the consent given by the thirty four (34) members of the Mataqali Naudrau did not contain the necessary signatures of the people required to alienate the land including that of the plaintiff as trustees. That the letter containing the consent was addressed to the Manager iTLTB Labasa authorising Digicel to carry out development on Mataqali Naudrau land but that the NLTB did not grant them a lease. That the lease was not granted to Digicel because the necessary consent was not obtained first.

3. That they deny that a payment of $30,000:00 was made and that such a payment should have been made to the Turaga ni Mataqali namely Mr. Manasa Ralago or his representatives and the trustees. That the said sum was paid to a dissident element of Mataqali Naudrau and not to the Mataqali proper.

4. That the Plaintiff denies that the iTLTB has given its consent to any lease to the Defendant company and refers to the letter from ITLTB dated 12 November 2008 which stated that no lease had been issued to the Defendant yet.

5. That the Plaintiffs are not a minority group and that no lease should be granted without the consent and signatures of the Turaga ni Mataqali or Turaga ni Yavusa.

6. That on the issue of the Plaintiff demanding payment of the sum of $80,000:00 from the Defendant as goodwill payment the Plaintiff says that it demanded the sum of $100,000:00 from the Defendant and that the Defendant cannot dictate how much the Plaintiff wants as goodwill payment.

7. That the Defendant has no defence in that it could not show that it has a valid lease and that in light of the failure of the Defendant company to produce a valid lease the Defence should be struck out and an order for eviction be granted forthwith together with costs on a solicitor client basis.

Plaintiff's Submission on Striking Out.

The Plaintiff's position put simply is that at the time of the claim the Defendant did not have lease to occupy and maintain any structures on their land at Mount Devodevomasi. That the Defendant's defence of them having obtained the consent of the majority of the members of the Mataqali the fact remains that when it constructed its structures on the Plaintiffs' land in 2008, it had done so without a valid lease or license exists today.

The Plaintiff further adds that notwithstanding payment of the sum of $30,000:00 (thirty thousand) to the appointed representative of the members of Mataqali Naudrau, a Mr. Ilaitia Naigani on the 13th of July 2008, it failed to take into account that the interest of all members of Mataqali Naudrau were to be catered for by its appointed Trustees, who are the Plaintiffs in this action pursuant to the Naudrau Trust created on the 15th of May 2004.

From the above the Plaintiff submits that the Defendant does not have a defence, their defence should be struck out and summary judgment entered in favour of the Plaintiff.

Defendants Submission on Striking Out

The Defendants position is that it has obtained the consent of the majority of the members of the Mataqali and the iTaukei Land Trust Board and is therefore entitled to be on the land. That it has a reasonable defence based on facts which could be proved by them and that this fact or facts as pleaded by them raised legal issues which needs to be determined.

Bearing in mind the above principles, the Defendants submits that the Defence raises a reasonable defence based on facts which can be proved by the Defendant. It is further submitted that the there is a legal issue that is raised on the facts as pleaded and that there is no falsity on which judicial notice can be made.

Determination of the Application to Strike out the Defence.

An application for striking out a defence is allowed under Order 18 rule 18 sub-rule 1(a). This order states that the Court may at any stage of the proceedings order to be struck out or amended any pleadings on the grounds that it discloses no reasonable cause of action or defence. If the Court then finds that there is no defence it should then use its discretion to strike out the defence and thereafter enter judgment in favour of the Plaintiff. The Plaintiff says that the Defendant does not have a defence in that it does not have a lease or a licence to develop the land in question at the time of the issue of the writ and therefore its statement of defence should be struck out. The Defendant on the other hand says that it does in that it has the consent of both the majority of the members of the Mataqali and of iTaukei Land Trust Board.

It is not necessary in my view to have a detailed analysis of the law regarding an application to strike out a defence or a pleading except as to say that in the exercise of its discretion to strike out the Court must only do so sparingly or only where a course of action or a defence is obviously unsustainable. Even in situations where it is seen that a case is weak or unlikely to succeed it must still be shown that no case exists at all. The overriding principle or policy perhaps is the protection of a person's right to be heard or access to the Court of law.

This matter has raised certain issues pertinent to the alienation of native land which needs to be determined. The main issue is whether those members of the Mataqali who had given their consents represent the majority in respect of the following:-

(1). The power of the trustees in the Nadrau Trust;

(2). The consents given by members of the Mataqali to issue proceedings;

(3). The consent given by members of the Mataqali to accept the $30,000:00 from the Defendant;

(4). The consent given by the members of the Mataqali for the Defendant to obtain access to and develop their land;

(5). The consent given by members of the Mataqali to the iTaukei Land Trust Board to alienate their land and to grant a lease to the Defendant; and

(6). The variation in the number of members of the Mataqali giving their consent to the above and the possible division within the Mataqali as a result of it.

The above matters are being raised because the issue of the consent of the majority of the members of the Mataqali has to be determined and can only be determined at the hearing of the action. This is Court does not have to look at the facts in any intricate detail it only has to determine that a defence can be sustained or raises some facts which needed to be determined by a trial sand I am satisfied that it does. For the above reasons the Plaintiff's application to strike out the defence is refused and it therefore follows that summary judgment could not be granted. Another issue which will come into the fore is the process or processes by which iTaukei land is being alienated first by de-reservation and thereafter leased in view of the trust relationship between the iTaukei landowners and the iTaukei Land Trust Board. The above two issue could not be determined without litigation.

THE DEFENDANT'S APPLICATION to AMEND its DEFENCE

The Defendant's application to amend its defence is made pursuant to Order 20 rule 5 of the High Court Rules. Order 20 rule 5 states:-

5.- (1) Subject to Order 15, rules 6, 8 and 9 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) Where an application to the court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

(4) An amendment to alter the capacity in which a party sues may be allowed under paragraph (2) if the new capacity of the proceedings or has since acquired.

(5) An amendment may be allowed under paragraph (2) not-withstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

The basis of the application is that in its defence the Defendant stated that it had obtained the consent of the majority of the members of the Mataqali the amendment seeks to particularise this defence. The Defendant further believes that since the Agreement to Lease is the crux of the matter the amendment will assist the Court in determining the real issues between the parties.

The Plaintiff on the other hand submits that the effect of the proposed amendment will change the action into one of a substantially different character which would more conveniently be the subject of a fresh action. That as a result of the amendment the Plaintiff will be left without any title to sue at the date of the writ. The Plaintiff further submitted that the Defendant is acting mala fide in that it was only after settlement talks broke down that it sought to enter into an Agreement to Lease with the iTaukei Land Trust Board. The Plaintiff is also of the view that the Defendant's proposed amendment will cause the Plaintiffs injury or prejudice them in a way that cannot be compensated for by costs or otherwise.

The Plaintiffs submission that it will be left without a right to sue if the amendment was granted is in my view unfounded. The amendment could not take away a right to sue simply because an amendment to a pleading by its very nature could not correct a wrong, the Plaintiff either had a cause of action from the beginning or it did not. All this court has to do is to exercise its discretion properly if it considers it just for the amendment to be made. Although it is clear that the Defendant had no lease when it developed the land in question it could be said that its right to do so was granted by the consent given by the members of the Mataqali. The Defendant states that the consent was given by the majority of the Mataqali, the plaintiff states otherwise it is this fact which should be determined. The Plaintiff's reliance on a letter from the iTaukei Trust Board which stated that no lease has been granted 'yet' should at least prompt further enquiry as the word 'yet' seems to indicate that an application was on foot. It is no longer in dispute that the Defendant now has a valid lease and the claim by the Plaintiff could not in my view be made without justification as it is possible that the Defendant obtained the consent after realising that it had developed on the wrong piece of land. If this is true than there is a narrow window of time in which the Mataqali's right was infringed for which they are entitled to some compensation and this will also have to be determined at trial.

Justice Wickramasinghe stated the legal principle in an application for leave to amend pleadings in ColonialNational Bank v Naicker [2011] FJHC 250; HBC 294.2003 (6 May 2011) by direct reference to the Supreme Court Practice 1988 (White Book) as set out under Order 20/5-8/6 as:

"It is a guiding principle of cardinal importance on the question of amendment that generally speaking, all such amendments ought to be made" for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defects or error in any proceedings." (see per Jenkins L.J in R.L Baker Ltd v Medway Building & Supplies Ltd [1958] 1 W.L.P 1216, p 1231; [1958] 3 All E.R 540, p. 546)."

Justice Pathik in Rokobau v Marine Pacific Ltd Hbc0503d.93s considered at length, the principles relating to amendment as stated by Lord Esher, MR in the leading case of WELDON v NEAL 19 QBD C.A. 394 at 395 where his Lordship said:

"We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so."

The amendment sought does not in my view raise any new matters which would affect the claim or defeat the claim by the Plaintiff nor does it prejudice the Plaintiff in any way. The amendment could not correct a wrong which infringed the Plaintiff's right to a remedy.

CONCLUSION

The Defendants application for amendment of its defence is granted on the following proviso:-

1. That the defence be amended but limited to paragraph 6 (a) to (d) of the "Amended Statement of Defence;

2. That the amended defence to be filed within 14 days;

3. That the Defendant to pay the costs of the application which is summarily assessed at $750:00 and that this cost be paid before the amended defence is filed.

ORDERS

1. That the Plaintiff's application for the Defence to be struck out and summary judgment entered in its favour is refused;

2. That the Defendant's application to amend its defence is allowed on the following provisos:-

(i). That the defence be amended but limited to paragraph 6 (a) to (d) of the "Amended Statement of Defence;

(ii). That the amended defence to be filed within 14 days;

(iii). That the Defendant to pay the costs of the application which is summarily assessed at $750:00 and that this cost be paid before the amended defence is filed.

3. That the matter be put before the Master for mention and or further direction on the 30th May 2012.

11 May 2012.

.............................................
Master Harry Robinson
High Court, LABASA