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Namatua v Native Lands and Fisheries Commission [2004] FJHC 325; HBC0487R.2003S (20 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC0487J OF 2003S

BETWEEN:

MATAQALI NAMATUA
a native land
owning unit from Yanuya village situated
in the Malolo Islands, Mamanuca I
the Province of Nadroga.
PLAINTIFF

AND:

NATIVE LANDS & FISHERIES COMMISSION
a duly constituted body
under the Native Lands Act, Cap 133.
1st DEFENDANT

AND:

MATAQALI VUNATIVI
a native land
owning unit from Yanuya village situated
in the Malolo Islands, Mamanuca I.
the Province of Nadroga
2ND DEFENDANT

AND:

NATIVE LAND TRUST BOARD
a body corporate duly constituted under the
Native Land Trust Act, Cap 134.
3RD DEFENDANT

AND:

REYNELLA LIMITED
a company duly incorporated under the laws of Fiji.
4TH DEFENDANT

Counsel for the Plaintiff: Suresh Maharaj: Messrs Suresh Maharaj & Ass.
Counsel for the 1st Defendant: S. Banuve: Attorney-General’s Chambers
Counsel for the 2nd & 4th Defendants: K. Muaror: Muaror & Co.
Counsel for the 3rd Defendant: T. Bukarau: Legal Division, N.L.T.B.

Date of Ruling: 20 April, 2004
Time of Ruling: 9.30 a.m.

EX TEMPORE JUDGMENT

This is an application for injunctive reliefs against the 2nd and 4th Defendants from entering and carrying out construction work of building a Resort on the island of Tokoriki. The island is native land and therefore comes under the Native Lands Trust Act (Cap 134) and the administration of the Native Land Trust Board (“NLTB”) as trustee of all native lands.

The island of Tokoriki is divided and owned by four (4) land-owning units, (“Mataqalis”), namely Mataqali Namatua, Mataqali Vunativi, Mataqali Vucunisai, and Mataqali Vunaivi. Their respective boundaries were agreed to by all the Mataqalis as decided by the Native Lands Commission (“NLC”) at its sitting on Solevu village, Malolo Island on 7th November 1930. The Commission is set up under section 4 of the Native Lands Act (Cap 133) and charged with the responsibility of ascertaining ownership of native lands.

Mataqali Namatua, the present applicant, now disputes part of its boundary with Mataqali Vunativi, the second-named Defendant. The NLC had on 27 February 2003, following representations made to it, met on Tokoriki, and “located” the lines representing the boundaries between the two Mataqalis. By “locating” the boundaries the NLC Commissioners, because many of these native lands have yet to be surveyed, physically have to walk over the land and identify boundary markers that are used from time to time by the Commission for such purpose. These markers are usually in the form of earth mounds, boulders, brass plaques and nails in rocks or concrete. In this instance, the NLC had identified the most sea-ward boundary marker between Mataqali Namatua and Vunativi, as the “Matuku Mound”. This, according to NLC, is identical with the marker and the sea-ward boundary of the two Mataqalis, decided in November 1930. The Plaintiff disputes this.

This dispute has found its way to the Court because of a new hotel resort that is ready to be built on the island involving approximately 14.98 hectares of the 2nd Defendant’s land but includes the disputed portion claimed by the Plaintiff. An agreement to lease was entered into between NLTB the 3rd Defendant, and the 4th Defendant, on 13 August 2003. On 29 October 2003 at Lautoka High Court, a Consent Order between the Plaintiff and the NLTB was entered that no lease will be issued over the disputed land until the substantive action has been determined; this being the Plaintiff’s Originating Summons seeking certain declaratory orders against the findings of NLC.

This present Summons seeks further injunctive relief against the hotel developer (4th Defendant) and the 2nd Defendant restraining them from entering and carrying out any construction work on the disputed land.

There is no doubt, and this is readily conceded by all the parties, that there is a serious issue that is raised. There however seem to be some difference in the essence of what the issue is. As far as the Plaintiff is concerned the issue is whether the NLC had acted according to the law in its “decision” of 27 February 2003. Specifically, whether the requirements of sections 3 and 4 of the Native Lands Act, has been complied with. The defence argue not so much as to whether the NLC had acted ultra vires the provisions of the Native Lands Act, as to the jurisdiction of this Court to review a matter that had been competently dealt with by the NLC. The emphasis as to which is the serious issue, in the Court’s view, not relevant in its present consideration of whether the injunction application should be granted. It is sufficient for the Court, to be satisfied that there are serious issues either of law or facts that are raised.

Having established the serious issue requirement, and being satisfied that the claim is neither frivolous nor vexatious or that the application discloses a reasonable prospect of success, all that remains is to consider the balance of convenience. According to the American Cyanamid principles, this involves assessing whether the Plaintiff will be adequately compensated by damages if the injunction is refused or if the Defendant will be adequately compensated in damages by the Plaintiff if the injunction is granted.

In the Court’s view, what it has been asked of it to decide upon as contained in the Plaintiff’s Originating Summons, goes to the issue of whether this Court has jurisdiction and therefore the competence to delve into and review the processes and procedures including the decisions of the NLC involving native customs and traditions, that are governed by its own laws and conventions. Under these circumstances, while it deliberates upon these jurisdictional issues, it would not, this Court believes, be advisable and in fact unwise, to prematurely intervene and act in any manner that would prove prejudicial to the exercise of the powers and discretion of such body.

According to the Defendants, there is a multi-million dollar tourist industry project ready to be built on the 2nd Defendant’s land including the disputed land, with the prospect of bringing in much needed income and employment to the people of the district including members of the two Mataqalis in question. This will be brought to a halt without any assurance of resumption, if an injunction is ordered restraining it. On the other hand, the Plaintiff’s position is that his Mataqali does not wish to lease the disputed land to the 4th Defendant for the development of a hotel, but rather keep it for the subsistence farming of his own members of Mataqali. In the Court’s view, while it is true that the Plaintiff will not be able to restore the disputed land to its original form should the 4th Defendant build on it, he will still be adequately compensated in damages by the 2nd and 4th Defendants. This is quite apart from their continuing interest as beneficiaries to a share of the lease money payable by the 4th Defendant. In the case of the 2nd and 4th Defendants however, there is a likelihood that the project will be lost with losses that the Plaintiff will not be in a position to compensate. The balance of convenience quite clearly favours the Defendants and the maintenance of the status quo.

I believe that for the time being the injunction granted against the NLTB for the issuance of a formal lease to the 4th Defendant and made at Lautoka on 29th October 2003, while the issue of ownership is being argued, is as far as the Courts should go. This allows the substantive action to be heard, as indeed the issue of which of the Mataqalis do the lease and rentals belong to. And to maintain this equilibrium, this Court will order that the 3rd Defendant, retain on a special account, 50% of all moneys including premiums, goodwill and rents paid by and received from the 4th Defendant for the intending lease on the land known as Matanibeto (Part of) Tokoriki Island (NLC 684).

Finally, in respect of the question of the Plaintiff’s fides vis à vis Mataqali Namatua, which Counsel for the 3rd Defendant had raised, leave is hereby granted to the Plaintiff to file a supplementary affidavit proving that he is listed in the “Vola ni Kawa Bula” of the Fijian land-owners Registry, under the said Mataqali.

In the result the application for injunction against the 2nd and 4th Defendants is dismissed.

There is a further Order that the 3rd Defendant retains 50% of all moneys as described above, in respect of the property, and such moneys to be kept in a separate account until further orders of this Court.

Costs in the cause.

F. Jitoko
JUDGE

At Suva
20 April 2004