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Rokotuiloma v iTaukei Land Trust Board [2020] FJHC 940; HBC217.2016 (13 November 2020)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 217 of 2016

BETWEEN

SERUPEPELI ROKOTUILOMA a self-employed and villager of Tamavua Village in

the Province of Naitasiri, suing in his personal capacity as a member of the

Mataqali Muaicolo of the Yavusa Matanikutu in the Province of Naitasiri,

and for and on behalf of the Mataqali Muaicolo of the

Yavusa Matanikutu of Tamavua Village in the

Province of Naitasiri.

FIRST PLAINTIFF

AND

MALAKAI LEVULA a sales representative and store employee of

Tamavua suing as a member of the Mataqali Muaicolo of the

Yavusa Matanikutu in the Province of Naitasiri, and for and

on behalf of the Mataqali Muaicolo of the Yavusa

Matanikutu of Tamavua Village in the

Province of Naitasiri.

SECOND PLAINTIFF

AND

THE iTAUKEI LAND TRUST BOARD a body corporate of

Victoria Parade, Suva.

FIRST DEFENDANT

AND

BENTLEY WAN CHANG, AKANISI MUAROR and LYNNIE RICHE being

THE TRUSTEES FOR HOMES OF HOPE a religious body registered under the

Religious Body Registration Act and having its registered office at

85 Navurevure Road, Tamavua.

SECOND DEFENDANT

Counsel : Ms. Raikaci N. for the Plaintiffs

Ms. Vokavanua Q. for the 1^st Defendant

Ms. Nayacalevu S. for the 2^nd defendant

Dates of Hearing : 5^th, 6^th and 7^th October 2020

Date of Judgment : 13^th November 2020

JUDGMENT

[1] The plaintiffs instituted these proceedings by writ of summons which was subsequently amended seeking the following reliefs:

1. A declaration that the lease issued by the 1^st defendant to the 2^nd defendant is unlawful, null and void as it contravenes section 9 of the Native Lands Trust Act.
2. An order for the 1^st defendant to provide the Mataqali with an account of all monies received by it from the leasing of the Mataqali’s land to the 2^nd defendant from the commencement of the lease to the date of the delivery of the judgment.
3. An order for the 1^st defendant to pay the Mataqali all monies to which the Mataqali is entitled to from the leasing of its land together with interest at the commercial bank interest rate.
4. Alternatively that in the event the lease is upheld by the court, that the court orders new terms and conditions beneficial to the members of Mataqali Muaicolo and which takes into account the future needs of the Mataqali Muaicolo as part of the 2^nd defendant’s lease namely;
   1. That the 1^st defendant re-assess the premium payable by the 2^nd defendant based on the duration of the lease of 99 years and not on the initial 50 years.
   2. That the 2^nd defendant re-survey the land to exclude the river and to provide for an access way to the Mataqali land beyond the leased land.
   100. A declaration that the 2^nd defendant has breached condition 2(b), h(ii) and (p) of the Native Lease No. 28468 and
   4. An order that the 2^nd defendant be restrained from using the land for commercial and/or business purposes other than only for religious purposes.
5. Costs of this action.
6. Any other relief this Honourable may deem just.

[2] The subject matter of this action is known as Wailoku which is in extent of 16.3272 hectares. The plaintiff avers in the statement of claim that the 1^st defendant had permitted the 2^nd defendant to occupy the land since 2004 for 50 years and the registered lease was issued in 2008 for 99 years. The plaintiffs allege that the 1^st defendant has failed to administer the leasing of the land for the benefit of the Mataqali Muaicolo as is required by law. The particulars of failure as averred in the statement of claim are as follows:

1. Failing to carry out a formal consultation process with the Mataqali Muaicolo prior to issuing the 2^nd defendant with a lease to inform the Mataqali of the terms and conditions of the lease and its benefits for the Mataqali.
2. Failing to inform Mataqali and obtain their consent that the term of the lease would be 99 years as opposed to a lease that would take into account the future needs of Mataqali.
3. Failing to obtain a premium for the leasing of the Mataqali land bases on a 99 year lease but instead calculating a premium based on 50 year lease.
4. Failing to pay premium received to the Mataqali.
5. Failing to pay rent for the years 2004 – 2010 to the Mataqali.
6. Failing to check that a proper survey was carried out by the 2^nd defendant to ensure that the land was within the approved boundary.
7. Failing to check that provision of an easement was included in the survey plan allowing Mataqali members access their land beyond the leased land.
8. Failing to conduct regular inspection on the activities conducted on the land by the 2^nd defendant thereby allowing abuse and breach of the terms and conditions of the lease by them.

[3] The plaintiffs allege that the 2^nd defendant failed to;

1. adhere to the terms of the agreement in terms of boundary and the activities to be conducted therein;
2. allow members of the Mataqali continue to have access to their river which is a source of water and food for them; and
3. allow members of the Mataqali continue to have access to their portion of land beyond the leased land.

[4] The plaintiffs also allege that the 2^nd defendant has shifted the boundaries beyond what was originally approved and encroached on to the plaintiffs’ Mataqali land depriving them from using the land and the river. The plaintiff also allege that the 2^nd defendant in breach of the lease agreement rear livestock on the land.

[5] In paragraph 5 of the statement of defendant the 1^st defendant states as follows:

1. The decision to lease the said land was made after consultations were carried out to which majority of the landowning unit members approved, supported and gave their consent for the 2^nd defendant to lease including the head of the land owning unit ‘Turaga ni Mataqali Muaicolo’. The 2^nd defendant is a registered non-profit Charitable Christian Organisation exist to help families of Fiji in particular single mothers by offering them homecare, housing and skills training. Even the plaintiffs themselves also gave their consent.
2. The plaintiffs are full aware of this lease between 1^st defendant and 2^nd defendant and have given consent for the 2^nd defendant to come into occupation and apply for lease to the said land together with majority of other landowning unit members.

100. Before a lease becomes registered, an Agreement for Lease is issued with term of 50 years which was issued to 2^nd defendant in January 2004, one of the required conditions is to survey the land in order to obtain full registered lease for 99 years term. The 2^nd defendant complied with this and obtained their full registered Lease in 2008.

[6] The 1^st defendant has also averred in the statement of defence that this land was a non-reserved land and therefore available for leasing once the previous lease expires.

[7] The 2^nd defendant while denying the allegations against them avers in its statement defence that the plaintiffs should be estopped from making any claim for alleged breaches since they had not made any claim for over the years and also the plaintiff has failed to give notice of breach required under section 105 of the Property Law Act.

[8] At the pre-trial conference the parties admitted the following facts:

1. The 1^st defendant is vested with the power to administer and control all native land in Fiji for and on behalf of its native owners, including native land belonging to the Mataqali Muaicolo.
2. The 2^nd defendant is a charitable organisation duly incorporated under the Charitable Trusts Act.
3. That an agreement for lease for religious purposes was executed between the 1^st and the 2^nd defendant on 20^th May 2004 for a term of 50 years for the lease of the native land known as Wailoku in the district of Naitasiri comprising 16.2283 hectares (the “leased land”), subject to survey, owned by the Mataqali Muaicolo.
4. A registered lease No: 28468 (Class 1: Special for religious purposes) of the said native land namely “Tavuana Wailoku”, comprising 16.3272 hectares was issued by the 1^st defendant to the 2^nd defendant for a term of 99 years with yearly rental of $1000.00, subject to re-assessment.
5. The premium of $30,000.00 was paid by the 2^nd defendant.

[9] The 1^st and 2^nd defendants entered into an agreement (P9) for lease in January 2004. The proposed period of lease is was 50 years and the yearly rent was $1000.00 payable half yearly. Subsequently a registered lease (P15) was granted for 99 years and the extent of the land was 16.3272 hectares (about 40 acres).

[10] The 1^st plaintiff testified that the name of his Mataqali is Muaicolo and Yavusa is Matanikutu and tendered in evidence marked as “P1” the Certificate of Registration in the Vola ni Kawa Bula (Register of native Land owners). The 2^nd plaintiff also tendered his certificate of registration as “P27”. The 1^st plaintiff said he had the authority to institute these proceedings from the certain members of the Mataqali Muaicolo. The 1^st plaintiff tendered a list of the members of the Mataqali endorsed by the Native Lands Commission. Although he has stated in the statement of claim that he is also representing the Mataqali Muaicolo, he has not been authorised the entire Mataqali.

[11] The plaintiffs allege that the 1^st defendant acted in breach the above provisions in granting the lease to the 2^nd defendant in that they did not consult the Mataqali Mauicolo to ascertain whether the land was required for the maintenance and support of the members of the Mataqali.

[12] The plaintiffs is evidence of the plaintiffs is that they were not consulted by the 1^st defendant before granting the lease and they challenged the consent form supposed to have been signed by them.

[13] Section 8(1) of the iTaukei Lands Trust Act 1940 provides:

Subject to the provisions of section 9, it shall be lawful for the Board to grant leases or licences of portions of iTaukei Land not included in an iTaukei reserve for such purposes and subject to such terms and conditions as to renewals or otherwise as may be prescribed.

Section 9 of the iTaukei Lands Trust Act 1940 provides:

No iTaukei land shall be dealt with by way of lease or licence under the provisions of this Act unless the Board is satisfied that the land proposed to be made the subject of such lease or licence is not being beneficially occupied by the iTaukei owners, and is not likely during the currency of such lease or licence to be required by the iTaukei owners for their use, maintenance or support.

[14] There evidence is that six of the members of the Mataqali including the plaintiff held a meeting and after few weeks of the meeting the son of Turaga ni Mataqali brought a paper and obtained their signatures on a blank white paper and there was nothing written there and the 1^st plaintiff said he was told to put the name and the date and sign. The plaintiffs said they signed the blank document consenting to grant a lease of 20 acres but the extent of the land has been increased to 40 acres. The witness Kaseinaseva, the Senior Estate Officer of the 1^st defendant, explained the procedure the 1^st defendant follows once an application for a lease is received. He stated that the land leased to the 2^nd defendant is not a reserved land

[15] It is also their evidence that the 1^st defendant did not have a meeting with the land owners. The evidence of the witness for the 1^st defendant testified that they held a meeting with the Turaga ni Mataqali and handed them the necessary form for their consent to lease which the Head of Mataqali and Head of Yavusa approved the lease.

[16] The plaintiffs allege that Viliame Niubasaga and Timaleti Lesuma did not sign the document giving their consent to the lease because Viliame Niubasaga was abroad at that time and Timaleti Lesuma passed away in 1992. However, the plaintiffs did not provide any proof of this. It would not have been difficult for the plaintiffs to tender the death certificate of Timaleti Lesuma and adduce evidence that Viiliame Niumbasaga was not in the country at the time of signing of this document (P8).

[17] If these signatures have been forged the plaintiffs should have taken action against the person who was responsible for forging the signatures but taken no action against the persons who forged the signatures. According to the plaintiffs it was the son of the Turaga ni Mataqali who obtained the signatures. The defendants cannot be held responsible for that.

[18] It is also important to note that there are two fractions of Mataqali Muaicolo. This was admitted by the 1^st plaintiff in cross-examination. According to witness Kaseinaseva The 1^st defendant consulted the Turaga ni Mataqali who consented to the lease. He also said if the land is not a reserve land they do not require the consent of the Mataqali although they held a meeting with the landowners and obtained their consent and the fact that the land is not a reserved land is not in dispute.

[19] Section 12(1) of the iTaukei Land Trust Act provides:

Except as may be otherwise provided by regulations made thereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his or her lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void,...

[20] In Buruavatu v Native Land Trust Board [2014] FJHC 778; HBC49.2010 (27 October 2014) the court held:

The Plaintiff also alleges that they were not consulted or their consent was not obtained in granting the lease to the 2nd Defendant. It was held in Solomoni Cavunisautu Naiduki V Native Land Trust Board and another [2000] FLR 58 as follows

"I therefore conclude from these authorities that the 1st Defendant has no duty in law to consult with land owners before it makes any decision affecting native land held on trust for them"

[21] However, from the evidence it appears that the plaintiffs did not have any objection in granting the lease but the issue was the extent of the land that was to be leased to the 2^nd defendant.

[22] The land leased to the 2^nd defendant is shown in the survey plan attached to the agreement for lease and the land has been clearly described in the survey plan attached to the Registered Lease.

[23] It is a fact admitted by the parties that there was no development activities on this land. Prior to the lease granted to the 2^nd defendant a Chinese person had been cultivating this land. Witness Vakamoce said after Chinese person left his family was farming the land and in 1999 Turaga ni Mataqali stopped them from farming. Since then until Homes of Hope entered the land there had been no development activities on the land and the remaining portion of the land is still a thick jungle with huge trees. Although it is in evidence that the plaintiffs and some other members of the mataqali have been planning to construct houses or an apartment building not steps have been taken to initiate any kind of development work. The reason offered by them is that there is no access road to the remaining portion of land and only way of access is across the land given to Homes of Hope which they have fenced. For these reasons the court is of the view that the lease granted to Homes of Hope is to the benefit of the Mataqali.

[24] Another allegation levelled against the defendant is that by leasing this portion of the land to Homes of Hope the members of Mataqali have been deprived of their access to the remaining portion of the land. Witness Vakamoce said in his evidence that Homes of Hope allowed the people to go across the land whenever a request was made.

[25] The survey plan attached to the agreement for lease at page 8 of the plaintiff’s bundle of documents shows a reservation for 12 meters wide land leading to the remaining portion of the land. The position of the plaintiffs is that this portion of land is a steep land and very difficult to use as an access road. It is evidenced that the entire land is hilly. Therefore, it would be practically impossible to allocate an access road which is flat and smooth. If the plaintiffs are really interested in developing the land, developing the access road should be part of their development plan.

[26] As I have stated earlier in this judgment the plaintiffs have allege that the Homes of Hope has encroached upon the “Vaga Creek” which on the north of the land leased out to them and shifted the boundaries. From the plan marked “P5” it is clear the water creek is not part of the land leased out. The 2^nd defendant denies these allegations. The only evidence the court has before it on this issue is the oral testimony of the plaintiffs which is absolutely insufficient for the court to arrive at the conclusion that there is in fact an encroachment upon the water creek by the 2^nd defendant and the shifting of the boundaries. There must be a survey plan showing the encroachment or shifting of the boundaries but no such evidence was adduced by the plaintiff.

[27] The next issue is whether the 1^st defendant properly paid to the Mataqali the amounts of money received from the Homes of Hope. The witness for the 2^nd defendant gave the details of the payments made to the 1^st defendant by way of rent and also the payments made to the Turaga ni mataqali.

[28] The annual rental payable half yearly by the Homes of Hope is $1000.00 a year. The premium paid for the 50 year lease with processing charges, stamp duty etc. was 32,646.00 (1D10). When the period of lease was increased to 99 years the 2^nd defendant has paid another $30,000.00 in four instalments (2D5 7 2D6). Apart from these payment the 2^nd defendant has paid $20,000.00 as goodwill payment and out this $20,000.00, $15,000.00 has been paid into the Turaga ni Mataqali’s personal account which is borne out by receipt tendered as “2D17”.

[29] There have been occasions where the members of Mataqali requested for advance payments.

[30] The payment narration tendered as “1D11” and the same payment narration has also been tendered as “1D12” is as follows:

[31] The advanced payments received by the members of Mataqali are supported by documents. Document “1D13” is the declaration requesting the payment of $6100.00. Paragraph 1 of P 25 reads as follows:

We, the, members of Mataqali Muaicolo humbly request for advance of the amount of $2000.00 (Two Thousand Dollars) and to be repaid from our lease money.

[32] The learned counsel for the plaintiffs cross-examine the witness for the 1^st defendant and suggested that the above withdrawal was from the Yavusa and not from the Mataqali for the reason that the address of the request letter reads as Yavusa Matanikutu, C/o – Mataqali Muaicolo, Princess Road, Tamauva, Suva. However, in paragraph 1 of the request letter as I have reproduced above he has requested for the advance payment as a member of the Mataqali Muaicolo. It is also important to note that the 1^st plaintiff is also a signatory to this request. The author of this document is now deceased. This is a statutory declaration which has the effect of an affidavit. The plaintiffs are not qualified to speak on the contents of this document unless they have a personal knowledge about its contents.

[33] The 1^st plaintiff has taken $6371.57 as advance payments from the 1^st defendant.

[34] This account shows that on various occasions the members of the Mataqali have withdrawn money out of the lease money paid by the 2^nd defendant. The account also shows that from 01^st April 2005 to 17^th October 2006 the 1^st defendant has paid $12,234.24 for distribution. Apart from these payments the 1^st defendant has paid to the plaintiffs’ solicitor as ordered by the Magistrates’ Court in action No. MBC 2769 of 1995 (2D1). In that case the court ordered as follows:

That the 1^st Defendant do pay to the plaintiff’s solicitors, Messrs Fa & Company of Level 4, FNPF Plaza, Victoria Parade, Suva, all further lease moneys that are payable and owning to the plaintiff and those that he represents in this action every six (6) months as and when they fall due.

[35] It is to be noted that the plaintiff in that case has instituted proceedings for and on behalf of some of the members of the certain Mataqalis of which the 1^st plaintiff was also a member.

[36] The total amount that was ordered to pay into the Solicitors account was $14,329.86. From the above it appears that the some of the members has withdrawn fairly large sum of money for their own benefit depriving the other members from what was due to them and now complained they were not paid by the 1^st defendant.

[37] The plaintiffs also allege that the amount of money they received was very small and it was about 2 to 3 dollars. The 2^nd defendant has promptly paid the lease money to the 1^st defendant. This land was leased out to the 2^nd defendant for an annual rental of $1000.00 and the only way the plaintiffs can receive more lease money is to increase the lease. It is evident that this land, at the time it was leased out to the 2^nd defendant, was an abandoned land without any development activities and it was like a jungle. The 2^nd defendant has at its own expense has developed the land. If the position of the plaintiffs is that this land could have been given on a higher rent they should have adduced evidence in that regard but no such evidence was adduced by the plaintiffs.

[38] Clause 2(p) of the registered lease reads as follows:

Not to permit or suffer to remain on the land any horses cattle, goats, swine or poultry.

[39] The witness for 2^nd defendant admitted in evidence that there were animal and the witness discussed about it with the 1^st defendant. If any party to a contract violates a condition contained in the contract the other party is entitled to take a suitable action provided for within the agreement. Only the parties to an agreement are bound by its terms and condition. The witness for the 2^nd defendant said in his evidence that the Homes of Hope discussed this matter with the 1^st defendant. Whatever the action that should be taken about this is in the hands of the 1^st defendant.

[40] For the above reasons the court makes the following orders.

ORDERS

1. The action of the plaintiffs is dismissed.
2. The plaintiffs are ordered to pay the defendants $6000.00 ($3000.00 to each defendants) as costs of this action.
   

Lyone Seneviratne

JUDGE

13^th November 2020