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Yavutu v Vunisa [2010] FJHC 18; HBC318.2008L (28 January 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 318 of 2008L

BETWEEN:

TOKATOKA YAVUTU
Plaintiffs

AND:

KALIOVA VUNISA, MISIBELO NAKUTURI, TITILIA RAIBE,
WILLIAM FRANK, SASIANA MAFILO, VERENAISI AND ISIKELI SITO SAKULA
1st Defendants

AND:

NATIVE LAND TRUST BOARD
2nd Defendant

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. S. Nacolawa for the Plaintiffs
Mr. K. Qoro for the 1st Defendants
Ms Kabu for the 2nd Defendant

Solicitors: Messrs Nacolawa & Co. for the Plaintiff
Messrs Qoro Legal for the 1st Defendants
Legal Officer NLTB for the 2nd Defendant

Date of Hearing: 26 January 2010
Date of Judgment: 28 January 2010

INTRODUCTION

[1] This is an Originating Summons concerning native land. It seeks costs and the following orders:

1. That the Plaintiffs is/are the customary owner of their traditional lands owned by their Tokatoka No. 557 in the Province of Ba being lands described more particularly in the Register of Native Lands Volume 1 Folio 106 that is Plan No. H/9 1 deposited with the Register of Title.

2. That the Description of the Town of Nailaga is described in the document annexed to the Affidavit in support of this Originating Summons.

3. That the Town of Nailaga situated within the Province of Ba, the island of Viti Levu clearly indicates the location of the Plaintiffs customary lands as annexed to Deponent’s Affidavit marked "ST 3" and "ST 4" respectively. That these lands belong to the Plaintiff Tokatoka.

4. That all lands under the Yavusa Sagunu are customarily and traditionally vested in the Tokatokas and Mataqalis of the said Yavusa, though occupied by other people, tribe or Mataqali are forbidden to transfer lease etc except with the consent of the Yavusa Sagunu. Thus the said lands are owned by Tokatoka Yavutu Mataqali Yalalevu absolutely.

5. That the Turaga ni Yavusa Sagunu retain the title of the Turaga-i-Taukei or overlordship over the said lands and allotments to the 1st Defendants are unquestionably and without any doubt at the will of the Yavusa Sagunu.

6. That the various peoples, tribes who have been allotted lands owned by Tokatoka Yavutu of Mataqali Yalalevu, Yavusa Sagunu have unlawfully and without the consent of the Yavusa Sagunu are in breach of such conditions set out on the allotment of the lands the 1st Defendants occupation therefore be terminated and the lands to revert to the Plaintiffs Tokatoka/Mataqali of Yavusa Sagunu.

7. That the Second Defendant, (NLTB), do notify the First Defendants and/or their people that the lands owned by the Plaintiffs Tokatoka be reverted.

8. That all cane proceeds be frozen and the cane contracts shall be rescinded with the Sugar Cane Tribunal.

9. Such further or other Order or Orders as seems just and proper.

[2] The supporting affidavit says that the Plaintiffs are the owners of native land registered under the Register of Native Lands. Several Blocks of that land were "allotted" to the various landowning groups represented by the First Defendants on certain conditions, one of which was that these landowning groups would make "use of the lands and not to cease usage or pass them on to others by leasing or assigning or in any way abandoning the said lands". The Plaintiffs allege that the First Defendants in contravention of these express conditions leased the blocks which "is a grave violation of the Fijian custom and evidence of respect and disregard to the (Plaintiffs)".

JURISDICTION

[3] At the commencement of the hearing I asked Mr Nacolawa, Counsel for the Plaintiffs, whether this was a matter for the Native Lands Commission and the Appeals Tribunal. He said it was not because this action was in regards to breaches of the conditions and therefore did not come within ss 16 and 17 of the Native Lands Act which deal with "boundaries" and "headship", respectively.

[4] I have to disagree. This application falls squarely within s 16 of the Act which provides in s 16(1):

In the event of any dispute arising the parties to which are Fijians in connection with land in a province or tikina in which the proprietorship of the Fijian owners has been ascertained by the Commission or in a province or tikina which it may be inconvenient or inexpedient for the Commission to visit without delay or in any other case when he may deem it expedient, the Minister may delegate a member of the Commission or some other proper person to inquire into the same. (My emphasis).

[5] The parties here are Fijians. The proprietorship of the land in dispute has been determined and the Register signed by the Chairman of the Native Lands Commission. The dispute in this case relates to the conditions of the "allotment" of the blocks comprising the land but it is nevertheless a "dispute" within s 16(1). That section requires the Native Lands Commission or a delegate of it appointed by the Minister to enquire into it. This Court therefore has no jurisdiction.

[6] Further, if the parties are dissatisfied with the Commission’s decision they have a right to appeal to the Native Lands Appeals Tribunal under s 7(1) of the Act. By virtue of that section and my decision in State v Native Lands Appeals Tribunal [2009] FJHC 164; HBJ 2 of 2009L (14 August 2009) (the "Tui Vitogo" case) this Court has no jurisdiction to hear this dispute should the matter go that far.

[7] Mr Nacolawa relied on the decision of the Court of Appeal in Namatua v Native Lands and Fisheries Commission [2005] FJCA 85; ABU0020.2004S (4 March 2005) as setting a precedent that the High Court has accepted and dealt with such applications. This decision was not cited in argument when I heard the Tui Vitogo case but I am glad to note that I did not contradict the Court of Appeal. The dispute in Namatua was between two native land owning units over the issue of a lease for a resort in Tokoriki Island. The Plaintiffs brought an action in the High Court here by way of Originating Summons. The Court of Appeal clearly said:

[31] In our view, the originating summons is misconceived because the High Court has no jurisdiction to deal with a dispute that may arise under s 16 or on appeal to an Appeals Tribunal under s 7 of NLA. A decision of the Appeals Tribunal is final unless the provisions under s 7 of NLA are not complied with. That is not the complaint in this case.

[32] The High Court has no jurisdiction to deal with the dispute.

[33] Consequently, there can be no cause of action to be tried in the High Court.

[34] In view of this conclusion, it is not necessary to consider the other considerations relevant in granting an interlocutory injunction.

[35] The trial judge recognized that the High Court had no jurisdiction when he stated:

"In the Court’s view, what it has been asked of is to decide upon as contained in the Plaintiffs 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."

[36] The trial judge was correct in this regard and ought to have ruled that there was no cause of action to be tried in the High Court. That would have been the end of the matter.

[8] Mr Qoro, Counsel for the Defendants, made other submissions e.g. that this action is premature in that there is no dispute in respect of which declarations orders could issue, but I need not consider them because the jurisdiction point disposes of the matter.

[9] The Originating Summons is therefore dismissed.

COSTS

[10] I make no order as to costs.

ORDERS

[11] The Orders are therefore as follows:

1. The Plaintiffs application by Originating Summons filed on 18 October 2007 is dismissed.

2. There is no order as to costs.

Sosefo Inoke
Judge