5 September 2013.
MASTER, HIGH COURT,
The plaintiff entered into an agreement with the the iTLTB in May 2007 to lease, for tourism purposes, a portion of land known as 'Nukubalavu" which is situated at Viani Bay in Cakaudrove, Vanua Levu. The land in question is native land and belonged to the land owning unit or the Mataqali Sinu of the Yavusa Navadra in Viani Village whose consent was first obtained prior to the granting of the lease. For these purposes the contracting parties drew up and signed a document titled an Agreement to Lease" (hereinafter referred to as "the lease") on the 2nd May 2007. The land as stated on the lease is subject to survey but consists of approximately 20.4475 HA. The term of the lease was for 99 years and the consideration was $400,000:00. Upon payment of the consideration and the rental the Plaintiff was to take possession of the land and to thereafter proceed to the construction of the tourist resort in accordance with the provisions of the lease.
From the affidavit filed in support of the application it appears that some of the members of the landowning unit were residing on the land which is now leased. This land is outside the village boundary but that some villagers have chosen to reside there rather than in their village so that they can cultivate and live on their traditional land. The affidavit evidence seems to show that these people agreed to relocate to another place or to their village on payment to them of certain monies towards relocation to enable the plaintiff to lease their land for tourist purposes. In fact there are some evidence of payments made to those people and they in turn have relocated either to their village or to other places.
The defendants, however do not wish to relocate and state that they were not consulted before the lease was granted nor did they consent to it. That their family house and farm is on the portion of land and that they should not be relocated anywhere else. That the 1st defendant in particular states that he has been in continual occupation for as long as he can remember and that he is now 78 years of age. In relation to the payment of monies for their relocation the defendants affidavit evidence appears contradictory in that some payment were paid to them through third parties and some payments were for purposes other than relocation.
It is within the above scenarios that the initial originating summons pursuant to Order 113 was filed and thereafter this application to convert the matter to a writ action. This is what has to be determined now.
2: The Application
The summons was supported by an affidavit sworn at Labasa by the 1st defendant Mr. Ilimo Tulevu on 28 February 2013. The defendant's sworn affidavit states briefly that:-
(i) the plaintiff (One Hundred Sands Ltd) is trying to evict him from the land of his birth where he was raised as a child and which he has occupied and continue to occupy under customary beneficial occupation over 70 years;
(ii) that the portion of land was allocated to him and his family as his share of his parents customary reserve in accordance with custom and tradition;
(iii) that he knows that some of the members of the Mataqali want my land to be leased to the plaintiff and iTLTB has probably acted on their desire in purportedly granting the lease to the plaintiff but that he says that the granting of the lease is wrong in that it is contrary to the iTLTB Act.
Casino developers to start paying fines
One Hundred Sands Limited the developers of Fiji’s first ever Casino project will have to pay a fine US$100,000 from October 1st.
Acting Prime Minister Aiyaz Sayed-Khaiyum says this penalty clause was part of the conditions under which they were issued the casino license.
The company will be paying US$100,000 for every month until the development is completed.
“Obviously it is of concern to us as you know under the license conditions certain milestones needed to be met. Of cause the main one is the Casino needed to be operational by 1st October of this year and if they won’t they are liable to pay US$100,000 penalty a month which they will start incurring from 1st October which is in a week’s time.” Source: FBC News
(iv) That he and his wife live on this land and have planted coconut trees there from the 1940's to the 1960's and built a house there in 1990;
(v) That my two brothers have traded off their share to the plaintiff and some Mataqali members have given their consent by which they have effectively chosen to change their way of life forever.;
(vi) that I have opted not to, and opted instead to maintain the way of life that my ancestors have done for thousands and thousands of years and I have expressly stated that position to the plaintiff, to the Itaukei Land Trust Board and to the other members of my Mataqali;
(vii) that I sincerely and verily believe that this case should now progress as it begun by Writ orders that the plaintiff is to file a statement of claim that the iTLTB is to be included as a party and the defendants are to plead their counter-claims;
(viii) that most if not all of the facts put forward by the plaintiff has even saw the need to file a reply affidavit is disputed by the defendant and that the factual issues are not agreed and the resolution of these factual issues can no longer be resolved by Affidavit evidence because of that and there is real need that evidence is properly scrutinized by the examination and cross examination of witnesses in a trial;
(ix) that the originating process is appropriate only where issues of fact are not disputed but it is not the case here;
One Hundred Sands Response:
In opposing the application the plaintiff filed a sworn affidavit deposed by Ms. Barbara L'Ami, Company Director of Narain Heights Savusavu. She states that:
1. She is currently employed by the plaintiff as its Director of Client Relations and Property Management, and is authorized by the plaintiff to swear this affidavit on its behalf;
2. that she is in charge of the plaintiff's property management and related matters since 1st February, 2010 and that some of the matters deposed herein are within my personal knowledge and others have been obtained from accounts and records maintained in the relevant files;
3. that the plaintiff vigorously opposes the application in that the defendant should have brought the application promptly and expeditiously and that this application has delayed the hearing of the substantive matter;
4. that it has been a year since the originating summons was filed and nine months since the Notice of Appointment but there has been no progress in getting the matter to a hearing on account of the defendants constant request for further time and various interlocutory applications;
Conclusion: Master Robinson
The conclusion ought to in my view be that the application to continue the matter as if begun by writ action is granted. It follows that in respect of whether the plaintiff joins another party as a defendant is a matter for them to decide. Given the conclusion it is unnecessary to grant prayer (c). In relation to cost however I am of the view that the defendants should pay for the cost of the application based on the unnecessary delay in making the application.
Orders and Directions
(1). The application to continue the matter as if begun by writ is granted.
(2). That the defendant to pay the cost of this application which is summarily assed at $1000:00.
(3). That the plaintiff do within 21 days file and serve a statement of claim to the defendant.
(4). That the defendant within 21 days thereafter file and serve a statement of defence.
(5). That the matter is further adjourned before me for directions on 18 October 2013.
Fijileaks Editor: What Barbara L'Ami did not disclose is that she, with Larry Claunch, is one of two directors of One Hundred Sands Limited.
Read also Victor Lal's investigation: Khaiyum-Bainimarama rolled out false casino dice: One Hundred Sands Ltd began as purveyor of agricultural produce and ‘deer farmers’ with no experience as multi-million dollar casino operator. The regime’s illegal pay mistress Nur Bano Ali and her husband in charge of company’s business accounts.
Casino (Operator) Decree