Landowners   who own the Denarau land on which Sheraton and Westin Resort properties are built are taking the iTaukei Land Trust Board to court.

They seek information on the deed of settlement that paved the way for the sale of shares in the companies that owned the properties.

Ratu Timoci Duaka Dawai, Ratu Aporosa Rasolosolo, Ratu Samuela Naqalau, Ratu Osea Lagivala Tuidraki, Ratu Simeli Radrodro, Ratu Kaliova Dawai and Ratu Nevote Tako are among 345 applicants and are being represented in this civil case by Constitutional lawyer Julian Moti QC together with Akuila Naco of Naco Chambers.

The three companies which are also named in the action – Dubbo Limited, Barton Limited, Farleigh Limited are being represented by Richard Naidu and Jon Apted of Munro Leys, while sixth respondent in the matter- Avoser Challenge Limited is being represented by Reddy Nandan Lawyers.

The case is scheduled to be heard by Justice Kamal Kumar at the High Court in Suva on August 15-16.

The case

Through the case, the landowners want to exercise their right of access to information. They want to know all details concerning the negotiation and conclusion of the deed of settlement.

Avoser Challenge Limited had put in a bid to buy the shares for $260million. They could not come up with the required funds and the deal fell through.

Lawyer cum businessman Ananth Reddy and businessman Suresh Patel are the shareholders of Avoser Challenge Limited. Their $26million which was given as deposit is yet to be refunded.

Fiji National Provident Fund went on to buy the shares instead of Avoser Challenge Limited.

There were a number of alleged breaches identified in the initial leases and to be compliant with TLTB, the landowners were given “goodwill” money of $250,000. This payment was facilitated by TLTB.

When the initial leases were drawn up, there were clauses which allowed the landowning units to purchase shares in the companies.

However, TLTB is alleged to have not advised the landowners on this which effectively deprived them of their benefits to participate in the venture.

Now, through this case, the landowners are demanding to know all information leading to the compromise of claims and sale of shares in the companies.

Using the Right to Information as enforceable in the 2013 Constitution, the landowners want access to Requisite Information.

The 2013 Constitution is the first Fijian Constitution which has a provision like this, which is now being used for the first time in a pre-litigation context.

Invoking this, the lawyers for the landowning unit want access to all documents.

Dubbo and Barton held the leases to Sheraton and Westin properties.

TLTB deputy general manager (operations, research and development) Solomoni Nata held meetings with landowners where discussions about the $250,000 pay out were held.

According to court documents obtained by the Fiji Sun, which have been filed by Mr Naco: “Only when Munro Leys sought confirmation from TLTB of Dubbo’s and Barton’s due compliance, respectively, under the Westin iTaukei Land Lease and the Sheraton iTaukei Land Lease for the purpose of effecting the proposed sale of those assets by the transfer of all of the issued share capital of their parent company, Farleigh Limited by Fiji Cayman Holdings, did TLTB finally protest both lessees’ subsisting breaches.

“Unbeknownst to the Yavusa-e-Tolu, TLTB compromised their contractual statutory and constitutional rights to the remedy of those breaches and their lawful entitlements by negotiating and concluding a Deed of Settlement with both Dubbo and Barton on September 22, 2015 to accept payment of $250,000 in condonation, excuse and exoneration of both lessees’ breaches presumably without any admission of liability.”

“By instructions executed on September 22, 2015 and registered on September 23, 2015: (i) the Variation of iTaukei Lease No. 13796 between TLTB and Dubbo sought to delete Clauses 15 and 16 of the Westin iTaukei Land Lease in their “entirety”, replace them with substitute Clauses 15 and 16 and amend the quantum of the “maximum rent” with retrospective effect;

(ii) “the variation of iTaukei Lease No. 14619 between TLTB and Barton sought to delete Clauses 15 and 16 of the Sheraton iTaukei Land Lease in their “entirety” and replace them with substitute Clauses 15 and 16 with retrospective effect.”

Through this case, the landowners seek access to all those documentation, which will shed light on the alleged breaches and TLTB’s alleged failure to safeguard the interests of the  iTaukei landowners.

Edited by Jonathan Bryce

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