9911796707
TMI Blog1949 (12) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... atuloa on the Island of Viti Levu in the Colony of Fiji, containing 2,900 acres, through which a stream known as the Wainadoi Creek flows to the sea. The stream is not tidal at any point relevant to the proceedings out of which this appeal arises. 3. On 14th March 1944, the respondents preferred a claim against the appellant, the Attorney General of the Colony, to which the Governor in Council gave the proper consent, making allegations and claims which in view of later developments must be stated in some detail. 4. By their statement of complaint the respondents, after stating the facts already set out, pleaded as follows: 6.--(A) On the said land adjacent to the said stream are large deposits of gravel. (B) Such said deposits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there were large deposits of gravel in the bed of the stream but denied that any part of such gravel deposits as were in dispute in the action were on the land of the respondents and alleged that such deposits lay in the bed of the stream and further pleaded that under S. 5, Rivera and Streams Ordinance, 1880, all streams with the bed thereof belonged to the Crown, and that all gravel removed by the Director of Public Works was removed from the bed of the Wainadoi Creek and that at no material time had he removed gravel from the land of the respondents. 7. Upon these pleadings, issue was joined and it is plain from the learned Judge's notes of the argument of counsel and of the evidence that two matters only were in dispute, vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion at all. The argument was based on the assumption (which in the appellant's submission was the only proper assumption) that Thomson J. was of opinion that a consideration of the two questions would help him to resolve the issues in the case. On the first question the appellant submitted that the Court had no jurisdiction in the present proceedings to entertain or decide whether the taking of gravel from the bed of a stream infringes the rights of the public: that the respondent was not claiming damages for anything done to the stream bed but was founding his whole case upon the allegation that the Director of Public Works had removed gravel from places which are not in law part of the bed of the stream: that an action to restrain the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally open to the public for all purposes for which streams-may be enjoyed. 12. Their Lordships cannot doubt that, unless with the assent of the appellant, it was not competent for the learned judge to determine this question, and that that assent was not given is plain. 13. The appellant forthwith applied for leave to appeal and it has been matter for comment that (at least so far as appears from the record) he did not include in his grounds of appeal the plea that the order was made without jurisdiction. But such an omission (if there was an omission) could not preclude the appellant from taking the point upon the appeal to this Board : at the most it might have some bearing on the question of costs. In fact he took it, and placing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vera and Streams Ordinance may be of far-reaching importance, affecting not only the Wainadoi stream, but every other stream in the Colony, and also perhaps affecting the rights of the Crown and riparian owners in respect of the waters to which S. 9 of the Ordinance applies. Where such issues are involved, it is essential to their proper determination that the pleadings should state with particularity the claims made by the one side and the other and that the Court should be fully seised of all the facts relevant thereto. For example, in the present case it might well be important to have a full knowledge of the setting in which the Ordinance must be viewed, the system of land tenure at and before its date, the nature and terms of the grant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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