IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 415 of 2008

BETWEEN:

KESONI RABO, MANASA RAVOTEA, ERONI RUKUVAU, MOSESE VERENAMULUMU CAKAU, ALIFERETI CAKACAKA, INIA KEVETIBAU, KITIONE R. CAKAU and SOLOMONE D. CAKAUNITABUA for themselves and on behalf of THE MATAQALI NAKUITA of Nausori Village, Nausori.
PLAINTIFF

AND:

THE STATE.
1ST DEFENDANT

AND:

NATIVE LAND TRUST BOARD
of Victoria Parade, Suva.
2ND DEFENDANT

AND :

MATAQALI NAILAGOBOKOLA
of Nausori Village, Nausori.
3RD DEFENDANT

AND:

THE NAUSORI TOWN COUNCIL
4TH DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL: Mr. Sunil Kumar for the Plaintiff
Ms N. Raikaci for the 4th Defendant. 

Date of Hearing : 19th March, 2012 
Date of Ruling :  24th January, 2013

RULING

INTRODUCTION

1.	The Plaintiff filed this action against Defendants for reclaim of certain land and seeking certain declarations and damages for the alleged failure of allocation of land to the Plaintiff. The Plaintiff also seeks an order directing the 1st and 2nd Defendants to comply with the Native Land Amendment Act 2006 and to allocate the land in issue to the Plaintiffs. The 4th and 3rd Defendants are alleged rival claimants for the said state land. The state had leased the land to the 4th Defendant for development purposes, with the alleged concurrence of 3rd Defendant which is a native land owning unit, but the Plaintiffs are disputing the 3rd Defendant's claim to the land in issue and also for the alleged consent 3rd Defendant granted for the lease of the property to the 4th Defendant. The 4th Defendant who is a local authority seeks to strike out 4th Defendant from the action in terms of Order 18 rule 18 (1) (a), (b), (c) & (d). 

FACTS AND ANALYSIS

2.	The Plaintiff in his amended statement of claim dated 12th September, 2011 inter alia prayed as follows

a.	Declaration the Plaintiffs are the original owner of the said land.

b.	Declaration that the allocation of the said land to the third Defendant is unlawful.

c.	An injunction against third and fourth defendants in a any way dealing with the said land.

d.	An order directing the first and second Defendants to comply with the law passed by the Parliament of Republic of Fiji Islands in particular the Native Land Amendment Act 2006 allocate the said piece of land to the Plaintiff.

e.	The first and second Defendant be ordered to pay damages to the Plaintiffs for unlawfully withholding the said land to themselves.

f.	That the defendants do pay the Plaintiff all the cost incurred in litigation.

3.	The Plaintiffs' main allegation is that their native land was taken over and made it a crown land by the Governor during the colonial times and after the independence from the Great Britain the land was given to the 2nd Defendant who had allegedly going to allocate the same to the 3rd Defendant instead of the Plaintiff. Both Plaintiff and the 3rd Defendants are native land owning units and the 2nd Defendant is a statutory entity which is entrusted with the administration of the Native Lands in Fiji.

4.	According to the statement of claim the acquired land was initially used to a Colonial Sugar Refining Company and after that it was transferred to the Crown/State for the reversion of the same to the native owners. 

5.	The Plaintiff allege that they had already made an application under the amendments brought to the Laws relating Native Lands for reclaiming the same, in terms of the Section 18 of the Native Land Trust Board, but allege that the same had not been allocated to the Plaintiff, but according to the statement of claim the Plaintiffs fear that land would be allocated to the 3rd Defendant who is also another native land owning unit.

6.	The crux of the issue that can be deduced from the statement of claim is the ownership of the state land in dispute. The land was admittedly a historical native land which was made crown/state land after it had been utilized for a sugar factory, prior to independence.

7.	The only reason that the 4th Defendant was made a party to this action is that Plaintiffs seek injunctive relief, which it had sought in the payer (c) of the statement of claim. The only reference to the 4th Defendant is found in the paragraph 5 and 32 of the statement of claim. The said paragraph 5 is a description of the 4th Defendant and stated that 4th Defendant was the local authority to which the land in issue had been leased. The paragraph 32 states that the 3rd Defendant had unlawfully consented to the 1st Defendant to grant the lease of the land to the 4th Defendant. Both these paragraphs do not disclose a claim or cause of action against the 4th Defendant.

8.	Admittedly the land in issue is a state land and had been leased to the 4th Defendant. The Plaintiffs do not seek any damage or declaratory relief against the 4th Defendant, but it was added solely for the purpose of prayer (c) which is a permanent injunction. So, if the claim for permanent injunction is untenable the 4th Defendant has to be invariably struck off. 

9.	What the court has to determine at this stage is whether the Plaintiff's could maintain the action for injunctive relief against 4th Defendant in relation to the already leased state land, which the Plaintiffs claim in this action as their native land. 

10.	Since the land in issue is currently a state land provisions contained in the State Proceedings Act applies. All the 9 parcels of land claimed by the Plaintiff are State land leased for public purposes and are governed by the Crown (now State) Lands Act, Cap 132. Since the 1st Defendant is the Attorney General of Fiji, against whom the Plaintiff alleges negligence of statutory duty, the Crown (now State) Proceedings Act – Cap 24 is also relevant. Section 15 (1) of the Act states:

"In any civil proceedings by or against the Crown the court shall, subject to the provision of his Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:

Provided that-

(a)	Where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and 

(b)	In any proceedings against the State for the recovery of land or other property, the Court shall not make an order for the recovery of the land or the delivery of the property but may in lieu thereof make an order declaring that the Plaintiff is entitled as against the State to the land or property or to the possession thereof.(emphasis added)

11.	Accordingly the Plaintiffs cannot maintain the prayer (c) of the statement of claim which is a permanent injunctive relief against the 3rd and 4th Defendants. Neither could he obtain an order for the return of the state land from a civil action according to the above-mentioned provision of law. The only remedy available in any civil proceedings is a declaratory remedy that would not affect the rights of a lessee of the land. So the 4th Defendant's rights to the land as lessee will not be affected by this action. Hence, the 4th Defendant should be struck off from this action. Crown (now State) Proceedings Act, is explicit on this ground and all the civil proceedings are covered in the said provision contained in Section 15 of the Crown (now State) Proceedings Act.

12.	Though the injunctive relief is sought against the 4th Defendant, who is not the state the reclaim of land is against the state as it is presently a state land and since the Plaintiffs are precluded from obtaining an order for delivery of a state land to the Plaintiffs the permanent injunction invariably fails and only remedy is declaration as stipulated in Section 15 of Crown (now State) Proceedings Act, I do not wish to address the other issues raised by the 4th Defendant in order to seek the strike out as I have already decided to strike out the 4th Defendant from this action for the reasons given in this ruling. The delay in this ruling is regretted. The 4th Defendant is also granted taxed cost for this action.

FINAL ORDERS

a.	The 4th Defendant is struck off from this action.
b.	The Defendant is granted taxed costs for this action.
c.	The matter to take normal cause.

Dated at Suva this 24th day of January, 2013.

………………………………………….
Master Deepthi Amaratunga
High Court, Suva