IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION
Civil Appeal No. 3 of 2012
BETWEEN:
Melaia Qaranivalu & Seinimili Buresomo
First Appellants
AND:
Samu Boa
Second Appellant
AND:
The Native Land Trust Board
Respondent
Appearances: Mr Lomaloma for the appellants
Respondent absent and unrepresented
Date of hearing: 10th September, 2012
JUDGMENT
1.
The appellants appeal to this Court on the following five grounds of appeal:
i.
. the Learned Magistrate erred in fact and in law when he held that the
Defendant did not make an offer to the Plaintiffs to lease the said land when the
Defendant in fact made a formal written offer of lease to the Plaintiffs which was
tendered in Court.
ii.
.the Learned Magistrate erred in fact and in law when he confused an
invitation to treat with a formal written offer made by the Defendant to the
Plaintiffs to lease the subject land.
iii.
.the Learned Magistrate erred in fact in finding that the Plaintiffs failed to
meet a term of the written offer when the Defendants in fact withdrew the offer
before time for performance had expired.
iv.
.the Learned Magistrate erred in fact and in law in finding that the
Plaintiffs failed to meet a condition precedent, [namely obtain the consent of the
majority of the Landowning Unit] when the Defendant's own witness admitted in
cross-examination that the land is outside the Native Reserve and therefore the
consent of the Native Landowning Unit is not required.
v.
.the Learned Magistrate erred in law when he failed to properly apply the
ratio decidendi in Ram v Native Land Trust Board [2001] FJHC 404; HBC
184.2008L (19 July 2011) to this case when the facts are different.
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vi.
.the Learned Magistrate awarded costs of $2,500.00 to the Defendant
which is excessive in the circumstances.
3.
The appellants, in their statement of claim filed in the Magistrates' Court, had
claimed loss and damages arising from cultivation of a land with cassava in the Tikina of
Macuata, evidence of which was given at the trial. The basis of the claim was as follows.
At a meeting of the Mataqali Sauniduna of Nakama Village, Macuata of which the first
appellants were members, an employee of the respondent had advised those present, that
there was land available for leasing in the area. Subsequently, Waisake Naiduki, another
employee of the respondent, had told the second appellant, that upon payment of a sum of
$ 1500, the lease of that land could be obtained. The statement of claim proceeds to state
that the appellants, relying on these representations, had planted 5 acres of the land with
cassava. The land was leased to another person Pita Tamani, and the money was refunded
to the appellants.
The respondent, in its statement of defence, denied the claim and stated that the payment
of the application fee does not guarantee the grant of a lease. Waisake Naiduki, testified
that his office had withdrawn the offer letter issued to the appellants, since the appellants
had not complied with the terms of the offer letter. The offer letter stipulated that a sum of
$ 3696.19 was required to be paid within 6 weeks. The offer letter issued to Pita Tamani,
was also withdrawn.
The Learned Magistrate dismissed the appellant's claim. It was held that the
announcement at the village meeting could not be considered as an offer. The payment of
$ 1500 by the appellants was a processing fee and could not be construed as acceptance of
an offer.
It was held further that a conditional offer was made to the appellants to pay a sum of $
3,696.16 within 6 weeks. This had lapsed, as the full amount was not paid within the
stipulated period.
4.
The determination
The first, second, third and fifth grounds
The central issue in this appeal, as set out in the first, second and third grounds of appeal,
is whether the offer made by the respondent to the first appellants, constitutes a binding
contract for the grant of the lease by the respondent, the statutory trustee of iTaukei land
under the iTaukei Land Trust Act(cap 134), to the appellants.
In my judgment, the Learned Magistrate has correctly held in the first instance, that the
announcement by Waisake Naiduki, the employee of the respondent at a village meeting
that the land was available for lease, does not constitute an offer. The judgement of the
lower court referred to the case of Ram v Native Land Trust Board, Civil Action No:
HBC 184 of 2008L), which cited Harvey v Facey,(1893) AC 552 that "negotiations
leading up to the agreement may not necessarily amount to an "offer" but merely an
"invitation to treat"."The ratio decidendi in Ram v Native Land Trust Board, (supra) has
in my view, been correctly applied.
The Learned Magistrate then, referred to the offer letter dated 25th September, 2009,
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produced by the appellant. The heading of that exhibit reads as "SUBJECT TO
CONTRACT-Lease Contract" and requested them to pay $ 3,696.16, in order to execute
the contract. The offer letter concluded stating the offer was valid for six weeks. The
Learned Magistrate found that the appellants were required to comply with this express
condition by the payment of the sum of $ 3,696.16 within 6 weeks from the date of the
offer, in this conditional offer. It was thus quite correctly concluded that since the
appellants had failed to settle this amount within the period stipulated, the offer lapsed or
was effectively revoked. In my judgment, the Learned Magistrate correctly held that there
was no breach of contract by the respondent.
The third ground
I do not find that the Learned Magistrate made the finding referred to, in the third ground
of appeal, advanced by the appellants.
The final ground
I find nothing to comment on as regards the final ground of appeal, which urges that the
costs awarded by the lower court of $ 2500 was excessive. It suffices to refer to Or
XXX111 r 2,as cited by the appellants, in their written submissions filed in this Court,
which provides that all questions relating to costs shall be summarily determined, unless
specifically referred for taxation.
In my judgment, there is no merit in this appeal. I reject all the grounds of appeal and
dismiss the appeal with costs summarily assessed in a sum of $ 2000 payable by the first
and second appellants to the respondent.
A.L.B.Brito-Mutunayagam
Judge
17 January, 2013
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