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Tolevu v Native Lands and Fisheries Commission [2005] FJHC 186; HBC0533d.2003s (15 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0533 OF 2003

Between:

RATU EMOSI TOLEVU
Plaintiff

and

1. THE NATIVE LANDS AND FISHERIES COMMISSION
2. THE ATTORNEY-GENERAL OF FIJI
3. MIKAELE VOSATA
4. THE NATIVE LAND TRUST BOARD
Defendants

Mr. S. Valenitabua for the Plaintiff
Mr. S. Banuve for the 4th Defendant

Date of hearing and submissions: 26 January 2005
Date of Decision: 15 July 2005

DECISION

There are two motions before me. By their motion supported by an affidavit the defendants (1st and 2nd defendants) seek an order that the Statement of Claim herein be struck out and that this action against them be dismissed on the grounds that: (1) it discloses no reasonable cause of action and (2) that it is an abuse of process pursuant to Or.18 r.18 (1)(a) of the High Court Rules 1988.

The plaintiff by his motion supported by an affidavit opposes the defendants’ application and also seeks dismissal of the motion and prays for injunctive and certain other orders. An order by consent was made on 1 June 2004 in respect of items 2, 3, 4 & 5 of the plaintiff’s motion which pertain to injunction.

The plaintiff had commenced proceedings by filing a Writ of summons against the defendants.

He has set out the cause of action against each defendant.

The main objection to the proceedings by the defendants is that this is a public law matter and the procedure by way of Writ of Summons is not appropriate. Counsel refers to the case of Neori Tabua v The Native Land and Fisheries Commission HBC 518/03 wherein in an action initiated by way of Writ of summons seeking declarations against the findings of the Native Lands Commission pursuant to a statutory enquiry under the Native Lands Act, Cap. 133 an application was made by the Attorney-General to strike it out. There the Court (Jiten Singh J.) held that plaintiff chose an incorrect forum as he should have gone to the Native Lands Commission which is a statutory body to determine disputes as to land.

The view that was expressed by the Court in Tabua (supra) after perusal of the pleadings was that it was an abuse of process. The Court said:

“The Court cannot usurp the functions and duties vested in a statutory body by the Parliament. The jurisdiction vested in the Commission and the Appeals Tribunal is an exclusive jurisdiction to them and is not concurrent with the jurisdiction of the High Court. Accordingly, I hold that this court is not the proper forum to decide the issue put before it. It is an abuse of process. Support for this conclusion is also found in the decision of Justice Scott in the State v. Native Land Commission and Ors ex parte Pio Tikoduadua – HBJ 17/2002S.”

Applicant’s/Plaintiff’s opposition

In view of the nature of the application it is important to note what the plaintiff has to say on how the 3rd defendant became the holder of the traditional title of Sau Tui Vuna the holder of which is the high Chief of the Yavusa Vuna members of which now dwell in Nakorovou Village in Vuna, Taveuni and elsewhere in Fiji.

The applicant says that in 1986 with the ‘confirmation’ of the 1st Defendant whether direct or indirect, the 3rd defendant was appointed and installed to hold the title of Tui Vuna in the Yavusa Vuna in Taveuni.

The applicant has been dissatisfied with the said appointment and installation and has made representations and entered into correspondence with 4th defendant (‘NLTB’) since but to no avail (for details see plaintiff’s affidavit).

In view of these complaints the plaintiff instituted the present proceedings in response to the application saying that he has a reasonable cause of action and that this action is not a matter of judicial review. The reason he gives is that the applicant/1st defendant ‘had not, and has not, made any administrative decision which can be the subject of judicial review. The 1st defendant did not decide who the Sau Tui Vuna was to be. The plaintiff’s contention is that the 1st defendant did not hear a dispute when one arose and did make a decision relative to that dispute. The 1st defendant was therefore negligent and breached its statutory duty’.

The plaintiff therefore submits that because no administrative decision has been made by the 1st defendant this is not an action for judicial review.

Determination of the issue

Upon considering the affidavit evidence, the written submissions from both counsel and upon reading the pleadings I find that the application to strike out by the first defendant/applicant has no merit.

The pleadings do disclose that there are causes of action against the defendants.

The principles and the law relating to the aspect of what is ‘a reasonable cause of action has been stated as follows in Notes to Or.18 r.19 of the Supreme Court Practice (UK) 1979 Vol. I:

“...A reasonable cause of action means a cause with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond Jackson v. British Medical Association [1970] 1 All ER. 1094, C.A). So long as the statement of claim or the particulars (Davey v. Bentinck [1983] 1 Q.B. 185) discloses some cause of action, or raise some question to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed is no ground for striking it out (Moore v. Lawson) (1915) 31 T.L.R. 418, C.A.; Wenlock v. Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871, C.A.).

Also in Gleeson v J. Wippel & Co [1977] 1 W.L.R. 510 at 518 Megarry V.C. had this to say:

“First, there is the well-settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, only in plain and obvious cases that are clear beyond doubt. Second, Zeiss No. 3 [1970] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary; even if the matter is or may be res judicata, it may be better not to strike out the pleadings but to leave the matter to be resolved at the trial.”.

On the issue raised by the applicants/defendants that it is a judicial review matter, my understanding of the evidence before me is that there has not been an administrative decision pursuance to any statutory powers vested in the Native Lands and Fisheries Commission. Also that there has not been the hearing of a dispute by the NLC and a decision made as to who should be the Sau Tui Vuna. Evidently there has been an appointment of Sau Tui Vuna but whether he has been properly installed and by whom is not clear and that is why the plaintiff is aggrieved and has brought this action.

Had the NLC made the decision then there would have been a strong argument for judicial review rather than an action by writ of summons. Under the Native Lands Act there is provision in section 7 for appeal from any such decision to the ‘Appeals Tribunal’ constituted under the said section.

In the outcome in the absence of any such appointment by NLC what could the plaintiff do than to bring the present proceedings and he certainly has a cause of action.

The plaintiff had so long persistently objected to the installation but his representations and correspondence fell on deaf ears.

Before I leave the case hanging in the air, it is quite evident that that there is a dispute as to Native Land. The proper forum to deal with such matters is the Native Lands Commission pursuant to the powers vested in it under the Native Lands Act Cap. 133 particularly sections 4, 6 and 16. Because of this by proceeding with the present action it might result in the action being dismissed as being commenced in the wrong forum.

I therefore direct that the plaintiff consider this aspect of the matter without further delay.

If the plaintiff decides to pursue the matter with Native Lands Commission then I direct that he should then put the train in motion for that and if he does that then I direct that the Commission hear and determine the dispute as it falls within the Commission’s province irrespective of what view it previously held on matters related to the issue.

In the outcome, for the above reasons the defendants’ motion fails and is dismissed with costs in the cause. Liberty to the parties to apply generally particularly in regard to order of 1 June 2004 pertaining to interim injunction and other orders otherwise the said orders to continue.

D. Pathik
Judge

At Suva
15 July 2005