Home | Databases | WorldLII | Search | Feedback High Court of Fiji

  Download original PDF

iTaukei Land Trust Board v Webb [2020] FJHC 878; HBC271.2019 (23 October 2020)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION No. HBC 271/2019

BETWEEN ITAUKEI LAND TRUST BOARD a statutory body established under the iTaukei Land Trust Act 1940 having its registered office at 431 Victoria Parade, Suva

PLAINTIFF

AND DANIEL WEBB of Vunato, Lautoka

FIRST DEFENDANT

AND ISAAC MCGOON JUNIOR of Vunato, Lautoka

SECOND DEFENDANT

AND SEMI WAQASAQA of Vunato, Lautoka

THIRD DEFENDANT

AND ILISAPECI TEMALESI of Vunato, Lautoka

FOURTH DEFENDANT

AND AMINISITAI TORA of Vunato, Lautoka

FIFTH DEFENDANT

AND JONE VALE of Vunato, Lautoka

SIXTH DEFENDANT

AND EARLY CHILDHOOD PUBLIC EDUCATION CENTRE of Vunato, Lautoka

SEVENTH DEFENDANT

AND ILAITIA KOROITAMANA of Vunato, Lautoka

EIGHTH DEFENDANT

APPEARANCES : Mr Mucunabitu for the Plaintiff

Mr J Tinati for the 1^st -6^th & 8^th Defendant

Mr R Charan for the 7^th Defendant

DATE OF HEARING : 24 August 2020

DATE OF JUDGMENT : 23 October 2020

DECISION

1. On 18 October 2019 the plaintiff iTaukei Land Trust Board (ILTB) filed an Originating Summons pursuant (inter alia) to Order 113 High Court Rules in which it sought the following declarations/orders against the eight defendants:
   
   1. A Declaration that all the Defendants named herein and/or any other occupants being the registered Lessees of the land known as of land known as (sic) Vunato (Part of), S/D Lot 1, in the District of Vitogo, Province of Ba have deliberately and knowingly encroached on the said land by building and/or occupying a structure over a portion of the land without the consent of the Plaintiff.
   2. An Order that all the Defendants named herein and/or any other occupants forthwith deliver to the Plaintiff vacant possession of ALL THAT piece or parcel of land known as Vunato (Part of), S/D Lot 1, in the District of Vitogo, Province of Ba comprising an area of 5.8870 Hectares and that ALL the Defendants herein and/or any other occupants bear the costs associated with the same.
   3. An Order that the Defendants herein and/or any other occupants within 7 days dismantle and remove encroaching structures that they occupy or have erected on the piece or parcel of land known as Vunato (Part of), S/D Lot 1, in the District of Vitogo, Province of Ba comprising of an area of 5.8870 Hectares and that all costs associated with the dismantling and removal of the same be borne by the Defendants herein and/or any other occupants bear all costs associated with the same.
   4. An Order that in the event that the Defendants fails to remove the encroachments within the time specified by the Court, then the Sheriff of the High Court, its agents and servants are to be at liberty to forcefully enter the land known as Vunato (Part of), S/D Lot 1, in the District of Vitogo, Province of Ba, to dismantle and remove all encroachments and structural dwellings erected on site.
   5. An Order that the Defendants named herein, its agents or servants be restrained from interfering with the Plaintiff, its agents or servants in carrying out Order 4 above.
   6. An Order that the Defendants named herein, its agents or servants be restrained from entering the land known as Vunato (Part of), S/D Lot 1, in the District of Vitogo Province of Ba comprising of an area of 5.8870 Hectares upon the expiry of the time specified ordered by the Court for their removing the structures built and/or occupied by them on the said land, on their own.
   7. An Order that the Defendants named herein, be ordered to pay penalty to the Plaintiff in the sum of $5,000 for each day the encroachment accrues from the date of this Summons together with all associated costs on an indemnity basis.
   8. Such further or other relief as seems just and equitable to this Honourable Court.
      
2. The Originating Summons was supported by an affidavit by Cema Rokomatu, a Senior Estate Officer Compliance Northwest for the plaintiff, whose evidence was to the following effect (in my words):
   
   1. The ILTB administers the land the subject of the proceedings under the iTaukei Land Trust Act 1940.
      
   2. The land is owned by Tokatoka Nadala, of Mataqali Vidilo of Yavusa Vidilo. The landowning unit members are of the village of Namoli.
      
   3. On 6^th May 2008 the Tokatoka Nadala Mataqali Vidilo (via its representative Josefa Naini) entered into a deed with Western Builders Limited in which the mataqali contracted (subject to the consent of ILTB), in return for a payment of $100,000, to agree to the grant by ILTB of a lease of land marked on a plan attached to the deed, to the company. A copy of the deed was annexed to Mr Rokomatu’s affidavit, but there was no copy plan attached.
      
   4. In August 2008 ILTB granted (in terms of the consent of the landowning unit) an agreement to lease part of the land (some of that being the land occupied by the defendants) to Western Builders Limited for development of an industrial subdivision. The lease is for a term of 99 years from 1 May 2008. The initial rental under the lease is $1500 a year. Lautoka City Council gave its approval for the proposed subdivision in December 2010. A plan showing the land subject to the agreement to lease is attached to the agreement. This seems to indicate that the land leased to Western Builders Ltd comprises two physically separate portions of land, together making up 5.8870ha.
      
   5. The lessee has not been able to proceed with its development plans because of the defendants’ presence on the land (although there is no evidence of the attempts to do so, and no evidence from the lessee at all).
      
   6. Notices to vacate were served on the defendants on 10 September 2019 giving the occupants until 19 September 2019 to vacate the land and remove any buildings that they had erected. The notices include the following assertions:
      

A recent inspection of the above land as outlined in red in the attached plan/photo, reveals that you are in unlawful occupation of part hereof and that you hold no title or consent from the iTaukei Land Trust Board to be in occupation.

Any consent to occupy you may have from the Taukei Owners is null and void as only the Taukei Land Trust Board has the legal power to deal with Taukei Land.

The copies of the notices provided by the plaintiff do not have a plan/photo attached, nor is it clear exactly where the defendants live, and how this impinges on the land leased to Western Builders Ltd.

7. ILTB had given the defendants ‘ample time’ to vacate the land, however they had not done so. Their refusal/failure to leave:
   

... has stalled development, creation of employment, potential income or returns for the landowning unit, the tenant, potential investors and the economy. [The defendants] are deliberately frustrating the Lease Agreement between the Plaintiff and Western Builders Limited ... incurring unnecessary costs for the Board and the Tenant.

3. There is no evidence from the plaintiff justifying or providing any basis for the claim for penalty interest.
   
4. All of the defendants have personally appeared from time to time at various appearances in these proceedings, and eventually they instructed solicitors who appeared for them at the hearing of the application. Otherwise, except as set out below, none of them have taken any formal steps on the record, and they have not individually provided evidence of the basis upon which they say they are entitled to remain in occupation.
   
5. Affidavits in response to the originating summons have been filed by only two of the defendants.
   
   1. The 8^th Defendant, Mr Ilaitia Koroitamana swore an affidavit on 10 December 2019 in which he says that he is doing so on behalf of the eight defendants (although he has produced no written evidence of an authority for this). In his affidavit he says:
      
      • Having leased the land to Western Builders Limited, ILTB has no standing to ask for vacant possession against the defendants, and that claim should be made by the lessee;
      • The plaintiff has deposed materials by affidavit that will need to be verified by oral evidence at trial, and this proceeding cannot be limited to affidavit evidence only;
      • The head of the landowning unit had written a letter (annexed to the affidavit) expressing concern about the way that the lease was issued to Western Builders Limited as it extended into tokatoka reserve land. The letter is headed ‘Concern for Land Boundary’ and says:
        

As members of the Tokatoka (clan) Nadala we would like to voice about the piece of land leased to Western Builders (Ajun) which has now surpassed its boundary into the reserved land. Those who have settled on the reserved land have been issued notices to vacate the area however the families that have settled on the reserved land have already asked, followed protocols and the necessary means of exchange with the tokatoka long ago to settle on the reserved land. Some of the families have made it their home for the last twenty to fifty years well before Western Builders was issued the land for lease.

We the Tokatoka Nadala do not approve of the removal of residents nor do we agree with the boundary of the land survey of Western Builders as we know the original boundary which is behind the pre-school as evident by the original pine post packing by the ILTB. The families that have settled and the pre-school that Western Buiders is trying to vacate have nowhere else to re-located because they have been there on the reserved land given by our forefathers of Tokatoka Nadala for many yerr

Thank you for your cooperation and readership.

• All the defendants had been given licence or approval to occupy the land by either the previous or currents heads of the tokatoka in the belief that the land they were allowed to occupy is reserve land;
• All the defendants other than the 1^st, 2^nd, 6^th & 7^th defendants had been in occupation of their parts of the land since before the 2008 lease to Western Builders Ltd, some of them for 25 – 50 years. All of them have paid some monies to occupy the said land and have been involved in all traditional soli (obligations) towards any random tokatoka activities like death, wedding etc until now;
• He denies that the landowning unit was consulted about or agreed to the lease to Western Builders Ltd;
• That ILTB has failed in its fiduciary duty to consult landowners as to how the defendants first came to occupy the land;
• The defendants were not obliged to obtain the consent of the tokatoka, to occupy the land, but in any case did obtain that consent;
• and annexes a copy of the Tenancy Agreement between Kelera Vere and the 7^th defendant under which the defendant is occupying part (two classrooms and two swings) of the land for the purpose of establishing a school at Vunato. The tenancy was said to commence on 7 December 2018 at a rental of $2500.00. The agreement does not say what the term of the agreement is, or whether the rental provided is for the whole of the term, or is annual, monthly or weekly rent.
  

2. The affidavit of Maheshwari on behalf of the 7^th defendant also contests aspects of the lease to Western Builders Limited and suggests (without any other evidence to support it) that the area of land leased to Western Builders Ltd is not the area that the tokatoka agreed should be leased by ILTB to the company. The affidavit explains that the tenancy whereby the 7^th defendant occupies part of the land is derived from Kelera Vere, who is said to have ‘sold’ the land to Binita Padayachi, who in turn owns the land and improvements from which the 7^th defendant operates. Nothing is said about the basis upon which Kelera Vere was entitled to ‘sell’ the land, or whereby Ms Padayachi is now the ‘owner’.
   

6. In reply on behalf of the plaintiff, Kirisitiana Volivoli says – among other things, in an affidavit that reads more like a statement of defence, or submissions, and contains very little evidence – that the defendants are put to ‘strict proof’ on the matters set out in their affidavits, and:

2. (in reply to the 1^st and 6^th Defendants and 8^th Defendant affidavit) THAT them saying that they had been residing there before the lease was issued to Western Builders Limited are denied and they are put to strict proof.
3. That the Board prays that both the affidavits in opposition filed be expunged from the Court record as it does not show any probable cause that they have consent to occupy the land in dispute and they are deemed unlawful occupants as only members of the land owning unit have the right to stay on reserved land without leases however be that as it may all the Defendants herein are not only occupying the land in dispute without leases, they are occupying a land which is within the lease boundary of Western Builders Limited.
   

It is not clear to me why any such deficiency in the evidence of the defendants – if it in fact exists - warrants the affidavit being ‘expunged from the Court record’. The parties are entitled to have any admissible evidence taken into account in deciding the case. Whether that evidence is sufficient, or even carries weight, are matters for the court, and do not affect the propriety of the affidavits.

The law

7. Order 113, rule 1 states:

Proceedings to be brought by originating summons (O.113, r.1)

1. Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.

8. In a decision in September 2019 in Nadhan v Reddy [2019] FJHC 894; HBC131.2016 (18 September 2019) Master Azhar undertakes a thorough analysis of the purpose and application of Order 113, concluding that review with the following comment (at paragraph 13 of his decision):

The above decisions and the commentary on this Order 113 makes it manifestly clear that, the courts must be satisfied that there is no reasonable doubt on, (a) the claim of the plaintiff and (b) on the wrongful occupation of the defendant. It follows that, it is the duty of the plaintiff, who invokes the jurisdiction of this court under this Order, to firstly satisfy the court that, it is virtually a clear case where there is no doubt as to his claim to recover the possession of the land. In that process, he must be able to show to the court his right to claim the possession of the land and then to satisfy that the person or persons (not being a tenant or tenants holding over after the termination of the tenancy) entered into the land or remained in occupation without his licence or consent or that of any predecessor in title. Once the plaintiff satisfies these two factors, he or she shall be entitled for an order against the defendant. Then, it is incumbent on the defendant, if he wishes to remain in possession, to satisfy the court that he had consent either from the plaintiff or his predecessor in title. If the defendant can show such consent, then the application of the plaintiff ought to be dismissed

.

a summary that I gratefully adopt. I would add only the point, made elsewhere in the Master’s decision, but not repeated in this particular passage, that Order 113 provides a procedure to deal summarily (and hopefully quickly) with claims to which there is clearly no defence. The point is made in the decision of the Court of Appeal of England and Wales in Dutton v Manchester Airport [1999] EWCA Civ 596; [1999] 2 All ER 675 at 679 as follows:

Order 113 was introduced in 1970 (by the Rules of the Supreme Court (Amendment No 2) 1970, SI 1970/944), shortly after the decision of this court in Manchester Corp v Connolly [1970] 1 All ER 961, [1970] Ch 420. It had been held in that appeal that the court had no power to make an interlocutory order for possession. Order 113 provides a summary procedure by which a person entitled to possession of land can obtain a final order for possession against those who have entered into or remained in occupation without any claim of right--that is to say, against trespassers. The order does not extend or restrict the jurisdiction of the court. In University of Essex v Djemal [1980] 2 All ER 742 at 744, [1980] 1 WLR 1301 at 1304 Buckley LJ explained the position in these terms:

'I think the order is in fact an order which deals with procedural matters; in my judgment it does not affect in any way the extent or nature of the jurisdiction of the court where the remedy that is sought is a remedy by way of an order for possession. The jurisdiction in question is a jurisdiction directed to protecting the right of the owner of property to the possession of the whole of his property, un-interfered with by unauthorised adverse possession.'

Also relevant to this issue is the commentary in The Supreme Court Practice, 1993 (the White Book) Vol 1, O.113/1-8/1 at page 1603 as follows:

This Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation of the land without a licence or consent and without any right title or interest thereto.

9. In dismissing an appeal against the decision in Nadhan v Reddy ([2020] FJHC 798 I said at paragraph 8:
What emerges from the decision of the Court of Appeal [in Greater London Council v Jenkins [1975] 1 All ER 354] is the necessity for the plaintiff to show that there is no basis upon which the occupier/defendant is entitled to remain on the property. Where the original entry into occupation was with the consent or licence of the owner, the plaintiff must show that the right of occupation has been terminated. That is much easier for the plaintiff to do if it is clear how the right of occupation arose in the first place. If the occupation arose from a tenancy or licence, the plaintiff must show that that tenancy or licence has been properly and unequivocally terminated. If the plaintiff cannot do so, or if there is a factual dispute about the effectiveness of the termination, or if there is some other alleged basis for occupation which is contentious, an application under Order 113 will probably not be appropriate.

10. The plaintiff’s right to bring this application is said to depend on its position under sections 4 & 5 of the iTaukei Land Trust Act 1940, which provide:
    

Control of native land vested in Board

4(1) The control of all native land shall be vested in the Board and all such land shall be administered by the Board for the benefit of the Fijian owners.

Native land alienable only to Crown

5(1) Native land shall not be alienated by Fijian owners whether by sale, grant, transfer or exchange except to the Crown, and shall not be charged or encumbered by native owners, and any native Fijian to whom any land has been transferred heretofore by virtue of a native grant shall not transfer such land or any estate or interest therein or charge or encumber the same without the consent of the Board.

(2) All instruments purporting to transfer, charge or encumber any native land or any estate or interest therein to which the consent of the Board has not been first given shall be null and void.

11. Sections 16 & 17 of the iTaukei Land Trust Act deal with the use of native reserves as follows:
    

Land in native reserve not to be alienated

16(1) Subject to the provisions of the Crown Acquisition of Lands Act, the Forest Act, the Petroleum (Exploration and Exploitation) Act, the Mining Act, and to the provisions of this section, no land in any native reserve shall be leased or otherwise disposed of.

(2) Leases or licences may with the consent of the native owners be granted by the Board to native Fijians in accordance with regulations made under section 33.

(3) Leases may with the consent of the Fijian owners be granted by the Board to the Land Development Authority as if it were a native Fijian, in accordance with the aforesaid regulations and subject to the following conditions:-

(a) no land leased under this subsection shall be transferred, sublet or in any other manner disposed of by the Land Development Authority except to a native Fijian;

(b) no lease shall be granted under the provisions of this subsection in respect of any land which is in use by, or required by, or likely to be required by the Fijian owners or any member of the land owning unit or dependant of such member during the currency of the lease for the use, maintenance or support of members of the land owning unit or to enable it or its members to fulfil obligations under native custom or under any regulations made under the Fijian Affairs Act;

(c) whenever the consent of Fijian owners is necessary under this or any other section of this Act, such consent shall be obtained by the Board in such manner and after such consultation with the Fijian owners, and shall be signified by the Fijian owners in such manner, as may be prescribed by regulations made under section 33, or in default of any such regulations as the Board may consider appropriate.

Exclusion of land from native reserve with consent of native owners

17(1) The Board may, upon good cause being shown and with the consent of the native owners of the land, exclude either permanently or for a specified period any portion of land from any native reserve.

(2) Every such exclusion as aforesaid shall be published in the Gazette and in a newspaper published in the Fijian language and circulating in Fiji.

(3) When any native land has been excluded from a native reserve for a specified period such land shall upon the expiration of such period resume the same character and incidents as were attached to it before its exclusion from the native reserve.

Analysis

12. The defendants’ opposition to the application for possession focusses on two arguments:
    
    1. Whether the ILTB has standing to bring the application
    2. Whether the defendants are trespassers pursuant to Order 113.
       
13. The first of these arguments is based on the proposition that having leased to Western Builders Ltd the land that is now said to be occupied by the defendants, the ILTB no longer has standing to bring an application for possession. A lease is the grant by the lessor to the lessee, for the term of the lease (in this case 99 years), and in return for rent, of the right of exclusive possession of the land the subject of the lease. It is axiomatic that a lessor no long has an immediate right to possession of the land leased. Instead its right is to the reversion on termination of that lease, whether that be by the expiry of the lease, or by re-entry following default. There is no evidence here that the lease to Western Builders Ltd has been terminated, indeed the premise for the plaintiff’s claim is that it is seeking possession from the defendants so that Western Builders Ltd can proceed with its development plans for the land. How then can the plaintiff in this case claim possession that it is not entitled to? Why is Western Builders Limited not the plaintiff?
    
14. In Dutton v Manchester Airport (cited above) the Court was concerned with the right of a licencee, not yet in occupation of land, to evict trespassers. In his decision (in support of the majority) Kennedy LJ said (at p.689):
    

I would hold that the court today has ample power to grant a remedy to a licensee which will protect but not exceed his legal rights granted by the licence. If, as here, that requires an order for possession, the spectre of history (which, in the true tradition of the common law, ought to be a friendly ghost) does not stand in the way. The law of ejectment has no voice in the question; it cannot speak beyond its own limits. Cases such as Radaich v Smith and Street v Mountford were concerned with the distinction between licence and tenancy, which is not in question here.

In my judgment the true principle is that a licensee not in occupation may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by contract with his licensor he enjoys. This is the same principle as allows a licensee who is in de facto possession to evict a trespasser. There is no respectable distinction, in law or logic, between the two situations. An estate owner may seek an order whether he is in possession or not. So, in my judgment, may a licensee, if other things are equal. In both cases, the plaintiff's remedy is strictly limited to what is required to make good his legal right. The principle applies although the licensee has no right to exclude the licensor himself. Elementarily he cannot exclude any occupier who, by contract or estate, has a claim to possession equal or superior to his own. Obviously, however, that will not avail a bare trespasser.

In this whole debate, as regards the law of remedies in the end I see no significance as a matter of principle in any distinction drawn between a plaintiff whose right to occupy the land in question arises from title and one whose right arises only from contract. In every case the question must be, what is the reach of the right, and whether it is shown that the defendant's acts violate its enjoyment. If they do, and (as here) an order for possession is the only practical remedy, the remedy should be granted.