IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

HBC 355 of 2017

BETWEEN:

MOSESE VEREMALUA CAKAUNITABUA on behalf of himself and on behalf of the members of Mataqali Nakuita
PLAINTIFF

AND:

ITAUKEI LANDS TRUST BOARD
DEFENDANT

BEFORE:
M. Javed Mansoor, J

COUNSEL:
Mr.  S. Kumar  for the plaintiff
Ms.  Q. Vokanavanua for the defendant

Date of Hearing:
4 August 2020

Date of Judgment:
22 March 2023

DECISION

PRACTICE & PROCEDURE		Writ -	Failure to file intention to defend action – Summons for leave to enter judgment – Leave to file statement of defence – Order 13, High Court Rules 1988 – Sections 4 & 14 (e), iTaukei Land Trust Act 1940 – Section 2, Native Land Trust (Leases and Licences) (Amendment) Regulations 2010. 

1.	The plaintiff filed action claiming that income in a sum exceeding $200,000.00 collected by the defendant as trustee was not distributed to him or to the other members of the mataqali whom he seeks to represent in this action. The plaintiff says that he is the Turaga ni Mataqali Nakuita and has held that position since 14 December 2013. He claimed to have express authority from the members of the mataqali to take action on their behalf, in addition to having the authority and mandate by tradition to represent them. 

2.	The plaintiff stated that the defendant has acted in breach of sections 4 and 14 (e) of the i-Taukei Land Trust Act 1940 by diverting funds due to the plaintiff and the other members of the mataqali. He pleaded that in terms of section 4 of the Act, the defendant was required to administer native land to the benefit of its owners and that section 14 (e) of the Act required the defendant to distribute monies in the manner provided in that section. 

3.	The plaintiff sought a declaration that the non-distribution of the plaintiff’s income since 14 December 2013 – after he became the chief of the clan – was done unlawfully and in breach of the i-Taukei Land Trust Act. He also sought an order for the defendant to pay the plaintiff all of the income due with effect from 14 December 2013.

4.	The defendant did not file a notice of intention to defend the action or a statement of defence. The affidavit of service filed on behalf of the plaintiff says that the writ was served personally on the defendant on 5 December 2017. 

5.	Thereafter, the plaintiff filed a summons on 3 April 2018 seeking the following orders:   
i.	“Leave to enter judgment
ii.	Judgment to be entered as follows:
1.	A declaration that the non-distribution of the plaintiff’s income since 14 December is unlawful and in breach of the terms of iTaukei Land Trust Act, in particular section 4 and section 14 (e). 
2.	An order that the defendant pay to the plaintiff all the income due to them according to law with effect from 14 December 2013”.

6.	The application seeking leave to enter judgment was supported by an affidavit by Mosese Cakau, the plaintiff.  He stated that he was seeking leave to enter judgment as the defendant failed to file a notice of intention to defend, and that the defendant did not have any defence as it had not distributed income to the members of the mataqali, after having collected income in excess of $200,000.00. Since 2013, he averred, the defendant has been paying amounts due to the plaintiff mataqali to another entity, and that such payments were made unlawfully and contrary to the provisions of the i-Taukei Land Trust Act. 

7.	On 18 July 2018, the defendant filed a summons to set aside default judgment and sought leave to file a statement of defence. The summons was supported by the affidavit of Semi Senikuraciri of the defendant’s legal department. He stated that the defendant was served summons for leave to assess damages on 16 April 2018.  He stated that after the plaintiff’s writ of summons was served at the defendant’s office, the officer who received the document did not inform the defendant’s legal officers of the service of the writ. The plaintiff’s action became known when the summons for leave to assess damages was served on the defendant.  The omission to take steps in defending the action was described as an honest error. Mr. Senikuraciri stated that the defendant is obliged to distribute all lease rental income equally to registered members of the mataqali or the land owning unit in terms of the Native Land Trust (Leases and Licences) (Amendment) Regulations 2010. He stated that in order for payments to be made to land owning members, they must submit their registration forms together with all requisite documents and information, including details of their bank accounts.  He stated that the plaintiff has not submitted his registration form though the defendant’s office had requested him to provide the necessary information on several occasions. The affidavit states that the majority of the mataqali members whom the plaintiff seeks to represent had complied with the registrations, and they are now receiving their share of the lease rental income.

8.	Subsequently, the defendant withdrew the application filed on 18 July 2018, which had sought to set aside the default judgment. The application was withdrawn on the basis that the plaintiff had not filed an application to enter default judgment. The defendant filed an affidavit in opposition to the plaintiff’s application on 9 November 2018 and in the affidavit sought permission to file its statement of defence. A separate application does not seem to have been filed for the purpose of seeking the court’s leave to defend the action. The defendant’s proposed statement of defence was enclosed to the affidavit in opposition affidavit. 

9.	At the hearing, the plaintiff reiterated that he had not received rental income from the time of his appointment as the head of the mataqali, and that monies due to him and other members of the landowning unit were wrongly paid to another entity. The plaintiff pointed out that the defendant was in default in not having filed the notice of intention to defend. The defendant also did not file a statement of defence within the prescribed period of 28 days of being served the statement of claim. The plaintiff submitted that the defendant failed to seek an enlargement of time to file its statement of defence or notice of intention to defend, and that it also did not explain its failure to file a statement of defence. In order to obtain the court’s leave, the plaintiff submitted, the proper procedure was to have filed an application supported by an affidavit seeking to file its statement of defence, which the defendant had not done. In those circumstances, the plaintiff submitted, he was entitled to judgment in terms of Order 13 of the High Court Rules.

10.	The defendant submitted that section 14 (e) of the iTaukei Land Trust Act – which the plaintiff relies upon – was amended by section 2 of the Native Land Trust (Leases and Licences) Amendment Regulations 2010. In terms of the amended law, the defendant submitted, lease income has to be distributed equally to the members of the mataqali. The defendant submitted that after the change of the law, it formulated procedures for the equal distribution of lease rental income to registered members of the mataqali. The defendant submitted that the plaintiff failed to provide details of the sums that the defendant allegedly owes him. The defendant submitted that unlike the plaintiff, the other members of the mataqali have received their share of lease money, having registered their details in accordance with the law. 

11.	The defendant explained that when the writ was served at its office, the officer who received it did not notify the legal officers of its service. The defendant became aware of the action only when summons for leave to assess damages was served on its office on 16 April 2018. The defendant submitted that there are important issues to be tried in the action and prayed for the plaintiff’s application to be struck out, and for leave to be granted to file its statement of defence.

12.	The defendant also took up the position that the plaintiff has not produced evidence of authorisation to represent the members of the mataqali. The defendant contended that the burden is upon the plaintiff to establish that he has the right to represent the mataqali and show that monies due to them have not been equally distributed. The defendant submitted that the plaintiff did not comply with Order 41 rule 11 of the High Court Rules by annexing to his affidavit a letter of authority from members of the landowning unit.

13.	Order 13 makes provision for the entering of a default judgment where a defendant fails to give notice of intention to defend an action.  Order 19 rule 7 allows for an application to be made for judgment to be made where no defence has been filed.  Order 13 rule 10 allows court on such terms as it thinks just to set aside or vary any judgment entered due to the failure to give notice of intention to defend the action. In this case, the court has not entered judgment upon the defendant’s failure to file a notice of intention to defend or file its statement of defence. 

14.	Having considered the respective affidavits and the submissions, I am of the view that the ends of justice will be met by granting leave to the defendant to file its statement of defence. Serious prejudice will not be caused to the plaintiff by allowing the defendant to defend this action. The defendant has explained its default. An officer had accepted the writ and put it away without bringing it to the notice of the defendant’s legal officers. The plaintiff’s contention that the defendant did not make an application for enlargement of time or file an application to seek leave for the purpose of filing its statement of defence is noted. The sum claimed is not a liquidated amount. The plaintiff’s claim needs to be established by affirmative evidence and in terms of the amended law. The defendant seeks the leave of court to file its defence, and has disclosed sufficient ground on which it intends to resist the plaintiff’s claim. The court notes that summons for the assessment of damages was served on the defendant on 16 April 2018. The defendant moved court on 18 July 2018, when it filed summons to set aside default judgment on the erroneous assumption that default judgment was entered. The defendant has not explained its tardiness in moving court after receipt of summons. The defendant’s neglect in failing to comply with the rules in a timely manner has resulted in some prejudice to the plaintiff. That must be compensated by the defendant. Considering these factors, it will be proper to permit the filing of the defendant’s defence subject to the payment of costs to the plaintiff.  

ORDER

A.	The plaintiff’s summons filed on 3 April 2018 is struck off.

B.	The defendant is granted leave to file its statement of defence within 14 days. The plaintiff’s reply and other steps to be taken according to the rules of court. 

C.	The defendant is to pay the plaintiff costs summarily assessed in a sum of $1,000.00 within 28 days of this decision.  

Delivered at Suva this 22nd day of March, 2023.

M. Javed Mansoor
Judge