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Liaci v iTaukei Lands and Fisheries Commission [2023] FJHC 477; HBC330.2018 (20 July 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Civil Appeal No. HBC 330 of 2018

IN THE MATTER of an appeal against an Interlocutory Ruling by the Acting Master from Civil Action No. HBC 330 of 2018, Ameo Liaci v iTaukei Lands and Fisheries Commission, iTaukei Lands Trust Board and The Attorney-General of Fiji.

BETWEEN: AMEO LIACI of Vunicau Damu No. 2, Vuci Road, Nausori, Farmer.
APPELLANT

AND: ITAUKEI LANDS AND FISHERIES COMMISSION of Nasese, Suva.
1^ST RESPONDENT

AND: ITAUKEI LANDS TRUST BOARD of Victoria Parade, Suva.
2^ND RESPONDENT

AND: THE ATTORNEY – GENERAL OF FIJI of Victoria Parade, Suva
3^RD RESPONDENT

BEFORE : Hon. Justice Vishwa Datt Sharma

COUNSEL: Mr. Valenitabua for the Appellant
Ms. Naigulevu G. for the 1^st and 3^rd Respondents
No appearance for the 2^nd Respondent.

DATE OF DECISION: Thursday, 20^th July, 2023

DECISION
[Leave to Appeal, Stay of Execution and Enforcement Pending Appeal and Leave to Adduce Further Evidence]

Introduction

1. The Appellant, Ameo Liaci filed a Summons coupled with an Affidavit in Support on 03^rd November 2020 and sought for the following orders:
   
   • (1) That Leave be granted to the Appellant to appeal against the Interlocutory Ruling of the Acting Master of the High Court in Civil Action No. HBC 330 of 2018, delivered on 21 October 2020.
   • (2) That a Stay of Execution and Enforcement of the said Acting Master’s Interlocutory Ruling delivered on 21 October, 2020 be granted in favour of the Appellant.
   • (3) That Leave be granted to the Appellant to adduce further evidence during the hearing of this application for leave to appeal and the hearing of the proposed appeal to this Honorable Court.
     

Ruling of the learned Master delivered on 21^st October 2020.

2. That 1^st and the 3^rd Defendants herein filed an application on 23^rd July 2019 and sought for the Striking out of the Plaintiff’s Writ of Summons and the Statement of Claim on the following grounds:
   • (a) It discloses no reasonable cause of action;
   • (b) It is time barred pursuant to Section 6 of the Limitation Act 1971; and
   • (c) It is otherwise an abuse of court process.
     
3. After hearing both parties to the proceedings, the Learned Master delivered her Interlocutory Ruling on 21^st October 2020 as follow:
   

No Reasonable Cause of Action

• The 1^st and 3^rd Defendant’s Submissions fails to address to the Court why the 1^st and 3^rd Defendants are claiming that the Plaintiff’s Writ of Summons and the Statement of Claim should be struck out as it discloses no cause of Action.
  
• The Plaintiff has failed to outline the particulars of fraud of the 1^st Defendant.
• There may be a Cause of Action by the Plaintiff, however, I do not find one to be against the 1^st and 3^rd Defendants.
• The Plaintiff’s pleading has failed to outline any Cause of Action against the 2^nd Defendant and why it should be a party to the proceedings, though 2^nd Defendant has not made any application for striking out as well.

Plaintiff’s Claim Time Barred under Section 6 of the Limitation Act

• The Plaintiff has failed to particularized the allegation of fraud.
• There is sufficient evidence that the Plaintiff, has siblings and fathers name was not in the VKB of Yavusa Nailagolaba, Mataqali Raranaduru of Kuku Village.
• There is sufficient evidence that their name were deleted in 1994 and they knew about this in 1994.
• Accordingly, I find that the claim brought by the Plaintiff is indeed Statute barred.’

Abuse of Process of Court

• In this proceedings, the Plaintiff is asking for the reinstatement of his and his siblings name into the VKB records as valid members of Tokatoka Savuikuku No. 206 of Mataqali Raranaduru, Yavusa Nailagolaba, Naduru Village, Nausori, Tailevu Province on the Grounds of fraud declared and marked by the 1^st Defendant as “Died”.
• In HBJ 299.2000s the Plaintiff was also one of the Plaintiff’s together with his father and 4 siblings and sought a Declaration therein they are still members of the Mataqali Raranaduru, Yavusa Nailagolaba, Naduru Village, Nausori, Tailevu.
• However, the Plaintiff in the current proceedings failed to specifically outline when the alleged act of fraud was discovered. Their names were deleted in 1994 and were aware of this fact but failed to raise this allegation of fraud in previous proceedings.
• The Learned Master – concluded that the current proceedings should be dismissed and struck out on the grounds of an abuse of process since the Court had made a determination in HBJ 299.2000s.
• On the Plaintiff, his father and siblings application to a Declaration that the Plaintiff and his siblings are still members of Mataqali Raranaduru within Yavusa Nailagolaba in the village of Kuku Bau, Tailevu.
• Thus, making the current proceedings res-judicata.
  

4. The Learned Master proceeded to make the following Final Orders:-
   
   • (i) “The Plaintiff’s Statement of Claim fails to outline a reasonable cause of action against the Defendants.
   • (ii) The Plaintiff’s claim is also statute barred pursuant to the Limitation Act.
   • (iii) Further the Plaintiff and his siblings are estopped by the doctrine of res judicata in bringing the current proceedings.
   • (iv) Plaintiff’s Writ of Summons and Statement if Claim struck out in totality.
   • (v) 1^st and 3^rd Defendants are entitled to costs summarily assessed at $1,000.”
     

Test for Leave to Appeal

5. The test when considering whether or not to grant Leave to Appeal an Interlocutory Order or Judgment is that whether that Appeal, if Leave is granted, has a Real Prospect of Success.
   
6. The Appellant must demonstrate that his Case has some prospect of success in the sense that there is a Substantial Question to be argued in the Appeal.
   
7. As far as this Court is concerned, it is only required at this Leave stage to determine and make a decision whether Leave should be granted to Appeal the Master’s Interlocutory Ruling of 21^st October 2020 wherein the Master dismissed the Appellants’/Plaintiffs’ Summons of 23^rd July 2019 seeking for striking out for Plaintiffs summon and statement of claim on the grounds that:-
   • (a) It discloses no reasonable cause of action;
   • (b) It is time barred pursuant to Section 6 of the Limitation Act 1971; and
   • (c) It is otherwise an abuse of court process it:
8. At this stage of the proceedings, I am not required to delve myself in analyzing the success of the Proposed grounds of Appeal filed with the Leave application, but merely whether there is a real Prospect of Success.
   
9. The essential issue in these proceedings is the consideration of the prospect of the intended Appeal against the Interlocutory Ruling of the Learned Master delivered on 21^st October 2020 seeking for Leave, Stay of Execution, Enforcement and Leave to adduce further evidence at the Appeal Hearing proper.
   
10. The Summons seeking for Leave to Appeal herein is from an Interlocutory Ruling of the Master delivered on 21^st October 2020 which obviously is not readily available.
    
11. Further, it is trite Law that Leave will not be generally granted unless the Court determining the Application for Leave to Appeal sees that substantial injustice will be done and/or caused to the Appellant [Plaintiff].
    
12. I make reference to the case of Totis Inc. Sport (Fiji) Ltd v John Lennard Clerk & another Fiji Court of Appeal No. ABU 35 of 1996s wherein the Fiji Court of Appeal expressed the following:

“It has been long settled law and practice that Interlocutory Order and Decisions will seldom be amendable to appeal. Courts have repeatedly emphasized that appeal against Interlocutory Orders and Decisions will only rarely succeed. The FCA has consistently observed that above principle by granting Leave only in the most exceptional circumstances.”

13. The Plaintiff’s Contention is that herein before, two cases were previously filed in the High Court of Fiji to address the current Appellants complaint. The cases were:
    
    • In Re Timoci Ramakosoi and Others, Action No. HBJ 0011 of 1994S; and
    • Civil Action No. HBC 299J of 2000S, Timoci Ramokosoi, Savenaca Ranatawake, Eroni Daunibau, Joji Bola, Jone Batini-ika and Ameo Liaci v Native Lands Commission.
      
14. In the above cases the plaintiff’s had complained about their respective names being deleted or removed from the VKB for Mataqali Raranaduru within Yavusa Nailagolaba in the village of Kuku Bau, Tailevu. The facts of the two cases above-mentioned show that the deletion of the plaintiffs’ respective names from the said VKB was a result of an enquiry by the NLC in Kuku in 1991 wherein one Salanieta Tokainaliwa, Head of Mataqali, gave statement to the NLC stating that Timoci Ramakosoi’s father was Lenati Vatuwaliwali of Ra. As a result of this statement the names of all the plaintiffs in the above cases were transferred to the VKB of a Mataqali in the province of Ra. Notations to that effect were made in the VKB for Mataqali Raranaduru of Naduru in Kuku, Bau, Tailevu.
    
15. The Plaintiff now applies to this Honourable Court that he be granted leave to adduce the copies of the VKB and the other legal documents aforementioned as further evidence in this application for leave to appeal and, if leave is granted, in the substantive appeal to this Court.
    
16. The further evidence which the Appellant wishes to adduce to this Honourable Court are annexures AL10, AL11, AL12(1) and AL12(2) of the Affidavit In Support made and sworn by the Appellant and filed on 03.11.20.
    

An abuse of the Process of the Court

17. In the case of Federated Airlines Staff Association v Air Terminal Services (Fiji) Ltd [2018] FJHC 299; HBM 41.2017 (18 April 2018), the Court in determining the principle of ‘abuse of the process of the Court’ cited Halsbury’s Laws of England Vol. 37 pg 322 it is stated that:
    

“An abuse of the process of the court arises where its process is not used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purpose, or, more simply, where the process is misused. In such a case, even if the pleading or indorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or indorsement or any offending part of it.”

18. The Defendants submit that the Plaintiff’s claim discloses causes of action that arose outside the prescribed period of limitation. In this proceedings, the cause of action is fraud which is within the ambit of section 4 of the Limitation Act. The cause of action arouse in 1994 whereas the Plaintiff’s Claim was filed outside the 6 years period. Therefore, it is the Defendants submission that the Plaintiff’s claim be struck out as being an abuse of the process of this Honourable Court.
    
19. Further the Defendants submit that the High Court had ruled on a legal issue in that the matter cannot be entertained by this Honourable Court as the cause of action in the Plaintiff’s Claim has accrued after the prescribed 6 year period which is a final decision. Therefore, the Defendants submit that the appropriate recourse for the Plaintiff would be to appeal the Ruling delivered in the 2007 Matter. However, instead of appealing the Ruling in 2007 Matter, the Plaintiff filed a new Writ based on the same facts and the same period before this Honourable Court which is an abuse of Court processes.
    
20. The Defendants further submits that the Plaintiff’s Claim is irregular and defective in nature as it does not comply with the High Court Rules. Pursuant to Order 18 Rule 11 of the High Court Rules every pleadings must contain the necessary particulars of any claim, defence or other matter pleaded. The Plaintiff’s Claim in this instance has failed to set out the particulars of fraud which his claim substantially relies on.
    
21. Under Order 18/12/18 of the Supreme Court Practices of 1999 ‘Particulars of pleading’ at page 330 it is stated that: (15) Fraud - Fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.
    
22. The Learned Master upon hearing the parties to the proceedings delivered an Interlocutory Ruling on 21^st October 2020 wherein she outlined her rational as enumerated hereunder for acceding to the First and Third Defendants application seeking for Striking Out and dismissal of the Plaintiffs Writ of Summons coupled with the Statement of Claim filed on 02^nd November 2018:
    • (i) “The Plaintiff’s Statement of Claim fails to outline a reasonable cause of action against the Defendants.
    • (ii) The Plaintiff’s claim is also statute barred pursuant to the Limitation Act.
    • (iii) Current proceedings is res judicata.
    • (iv) Abuse of Process of the Court and
    • (v) Striking out the Plaintiff’s Claim in totality.
      
23. Upon a very careful consideration of the Appellant/Plaintiffs application for Leave to Appeal, Stay of Execution and Enforcement together with Leave to adduce further evidence, I do not find any exceptional circumstances and/or any good rational that has shown to this court in the Appellants Summons seeking to leave to appeal, stay of execution and enforcement and to adduce further evidence as per the interlocutory ruling delivered by the Learned Master on 21^st October 2020.
    
24. For the aforesaid rational, I have no alternative but proceed to disallow the Appellants Summons filed on 03^rd November 2020 seeking for Leave to Appeal, Stay of Execution and enforcement Pending Appeal and for Leave to adduce further evidence accordingly Dismiss the Summons.
    

Costs

25. The Appellant’s/Plaintiff’s Summons proceeded to hearing with Appellant’s/Plaintiff’s making oral and written submission coupled with filing of affidavits.
    
26. The Respondents, First and third Defendants, filed affidavits and written submissions and made oral submissions at the hearing.
    
27. It is only appropriate, just and fair that I will order summarily assessed cost against the Appellant/Plaintiff in the sum of $1,000 to be paid within 14 days timeframe.
    

ORDERS

1. The Appellants/Plaintiffs Summons filed on 03^rd November 2020 seeking for Leave to Appeal the Master’s Interlocutory Ruling delivered on 21^st October 2020 is hereby dismissed.
   
2. There will be an order for summarily assessed cost against the Appellant/Plaintiff in the sum of $1,000 to be paid within 14 days timeframe.
   

Dated at Suva this 20^th day of July , 2023.

...........................................

Vishwa Datt Sharma

JUDGE

CC: Redwood Law, Suva
Attorney Generals Chamber, Suva
iTaukei Land Trust Board, Suva