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Vosailagi V Mara [1992] FJHC 62; Hbc0569d.91S (4 December 1992)

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Vosailagi V Mara [1992] FJHC 62; Hbc0569d.91S (4 December 1992) Vosailagi v Mara [1992] FJHC 62; Hbc0569d.91s (4 December 1992) IN THE HIGH COURT OF FIJI At Suva Civil Jurisdiction CIVIL ACTION NO. 569 OF 1991 Between: BULOU ETA KACALAINI VOSAILAGI Plaintiff - and - 1. ADI LADY LALABALAVU LITIA KALOAFUTOGA MARA 2. YANUCA ISLAND LIMITED 3. NAKURUVAKARUA COMPANY LIMITED 4. THE REGISTRAR OF TITLES Defendants Mr. A.R. Matebalavu for the Plaintiff Mr. Q.B. Bale for the 1st and 3rd Defendants Mr. C.B. Young for the 2nd Defendant INTERIM JUDGMENT This case concerns the Island of Yanuca (hereafter referred to as 'the island') situated off the coast of the chiefly village of Cuvu in the province of Nadroga and on which is erected an international resort hotel commonly referred to as 'the Fijian' generating by all accounts a large sum of money from a lucrative tourist market. The case however does not directly concern the hotel or its profitability and at an early stage the hotel was given leave to withdraw from the proceedings upon its undertaking through its counsel to furnish any information that the Court may require and to abide by any decision the Court may make on the plaintiff's application. More particularly this case raises the concerns of the beneficiaries of a trust established by the then Colonial Administration in 1930 (hereafter referred to as 'the Yanuca Trust') in respect of Yanuca Island and which was subsequently conveyed by a formal deed on the 30th of October 1969 to the present sole trustee, Adi Lady Lalabalavu Litia Kaloafutoga Mara (hereafter referred to as 'the trustee'). At the outset I would observe that the plaintiff has chosen as she is entitled, to come to this Court by way of originating summons dated the 28th of November 1991 seeking the removal and replacement of 'the trustee' and an order for accounts during her stewardship. Of such a procedure Buckley J. said in Re Sir Lindsay Parkinson & Co. Trusts Deed v. Smith and Anor. (1965) 1 ALL E.R. 609 at p.610: "... it was, I think, open to the plaintiffs to institute these proceedings either by originating summons or by writ; ... but I desire to say that in my view, clearly, proceedings by beneficiaries against trustees of a contentious nature, charging the trustees with breach of trust or with default in the proper performance of their duties, whether the matters with which the trustees are charged are matters of commission or omission, ought normally to be commenced by writ and not by originating summons; for in such proceedings it is most desirable that the trustees should know before trial precisely what is alleged against them." However no objection has been taken to the 'form' of the action and nothing more need be said about it. In support of the summons the plaintiff has filed an affidavit numbering 29 pages long and containing 83 paragraphs with numerous annexures. In the affidavit she alleges no less than 8 instances of breach of trust and mismanagement by 'the trustee' in the performance of her duties under 'the Yanuca trust'. 'The trustee' for her part having acknowledged service of the papers through her solicitors on the 4th of December 1991, filed a 1 page affidavit on the 12th of May 1992 (i.e. 6 months later) the relevant parts of which reads: "3. That I deny that (the) Plaintiff is a proper Plaintiff beneficiary as alleged in this action. 4. That I am informed and verily believe that (the) question of (the) lawful heirs and successors to the ownership of C.T.33/3336 has yet to be lawfully resolved. 5. That the Native Land Commission which has jurisdiction over the said C.T.33/3336 is presently reviewing the whole question of the ownership and proper successors and assigns in respect of the said land which I hold as trustee. The said Native Land Commission has yet to meet and decide on this question. 6. That I deny that I have any duties as trustee to give accounts or any explanations to any persons who are not proper beneficiaries. 7. That the Plaintiff is not entitled to the relief it (sic) seeks as the Plaintiff is not a proper determined beneficiary to the trust of which I am Trustee. 8. That I am prepared to give full details of accounts as soon as the proper beneficiaries and the ownership of the land subject matter of this action is determined by (the) Native Lands Commission as (the) Native land Commission is the only authority in Fiji which could determine customary rights and legal ownership of the land subject matter of this action. 9. That unless and until the said issue is determined the Plaintiff herein has no locus standi to bring this action." Then in a subsequent supplementary affidavit 'the trustee' elaborated on the above matters in the following relevant extracts: "3.... the subject land being C.T.No.33/3336 described as Yanuca Island was sold to the Ka Levu in 1909, one Ratu Luke Nakulanikoro, as an individual and not to him in trust for his tokatoka or any other division or subdivision of his people." 4.... the subject property and the true beneficiaries thereof can only be confined to the proper heirs and successors of the chiefly position of Ka Levu. In this context the Native Lands Commission confirmed in its decision dated 19th July 1990 that the true and proper heir and successor to the said chiefly position is Ratu Sakiusa Makutu. 7.... in the circumstances the identity of the true beneficiary or beneficiaries of the said trust is not certain. I claim that it was the Ka Levu Ratu Luke Nakulanikoro alone; the Plaintiff's claim that it was the Tokatoka Nakuruvakarua ..." Further in referring to the 3rd defendant company 'the trustee' deposed: "9.... My inclusion with my late uncle Ratu Tevita Makutu (No.2) the Ka Levu at that time, as the only shareholders of the trust and investment company Nakuruvakarua Company Limited was understood to reflect the true beneficiaries (in that case Ratu Tevita Makutu No.2 alone) of this trust I was appointed to hold only for him and his true heirs and successors." It may be inferred from the above that 'the trustee' is challenging the 'capacity' of the plaintiff to bring these proceedings on her own behalf or on behalf of an as yet unascertained group or class of beneficiaries. There is also a clear suggestion that 'the Yanuca trust' was established solely for the benefit of the then holder of the chiefly title of "Ka Levu" and his true heirs and successors and that in any event the Native Land Commission is the proper forum to decide this case. I note with concern however that although mention has been made of the third defendant company, nothing has been put before the Court in either of 'the trustee's' affidavits seriously denying or disputing the various allegations of breach of trust and mismanagement made against her. It is necessary to consider chronologically the historical background to the 'Yanuca trust' and the terms of the trust itself in order to answer the matters raised by 'the trustee' in her affidavit. In doing so however I do not propose to canvass again matters that have already been the subject of earlier decisions of this Court which are undoubtedly familiar to 'the trustee' and which answers many of the matters raised in her affidavits. I refer in particular to: (a) the decision of Rooney J. in Civil Action No. 293 of 1986 Ratu Epi Volavola v. Adi Lady Lalabalavu Litia Kaloafutoga Mara (hereafter referred to as 'Ratu Epi Volavola's case'), (b) a ruling of Sheehan J. in 'Ratu Epi Volavola's case'; and more recently (c) the judgment of the Chief Justice in Judicial Review No. 19 of 1988 Bulou Eta Kacalaini Vosailagi v. N.L.C. and Anor. delivered on the 22nd of June 1989 (hereafter referred to as 'the KALEVU case'). The earliest pre-Cession written record concerning Yanuca Island dates back to a handwritten 'Sale and Purchase Agreement' dated the 4th of May 1865 in which the then "Ka Levu" one "Ratu Kini Chief of Nadroga" sold the island "... for the sum of one hundred dollars in trade ..." to Francis Henry Davis a trader of Nasoata, Lower Rewa". The island was later to become the subject matter of an unsuccessful petition in 1884 by the then Roko Tui Nadroga and a Crown Grant Folio No: 992 was registered in favour of Francis Henry Davis over the entire 109 acres that comprised 'the island'. On the 5th of October 1888 the island was mortgaged to William Scott solicitor of Suva as security for a loan and a year later on the 24th of September 1889 a Certificate of Title No: 13 Folio 1186 was issued in the names of William Scott and Nicholas Hedstrom as executors of the estate of Francis Henry Davis. Subsequently on the 11th of April 1891 a new Certificate of Title No: 15 Folio 1367 was issued solely in the name of William Scott who held the title until it was transferred to his executors William Alexander Scott and Henry Milne Scott in 1908. They in turn were issued with a new Certificate of Title No. 32 Folio 3319. Prior to his death however, as appears from relevant extracts of the Nadroga Provincial Council records, William Scott had agreed to sell 'the island' for the sum of 200 which was to be raised by way of a levy on the people and chiefs of the province of Nadroga.
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