IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 259 of 2009

BETWEEN:

ESTATE OF EPELI DEABU ROKOQICA (deceased) by its Administrator and Trustees Lepani Cagimaira of Labasa
1st Plaintiff

AND:

LEPANI CAGIMAIRA
2nd Plaintiff

AND:

NATIVE LANDS COMMISSION
[Defendant]

AND:

NATIVE LAND TRUST BOARD
Interested Party

Counsel: Mr. N. Nawaikula for the Plaintiffs.
Mr. C. Tuberi for the Defendant
Ms. L. Macedru for the Interested Party 

Date of Judgment: 24th November, 2011

RULING

This is the defendant's summons for an order that the plaintiff's claim against the defendant contained in his Writ of Summons be struck out.

Background to the case

[1]	According to the statement of claim, the 1st plaintiff is the estate of late Epeli Deabu Rokoqica. The 2nd plaintiff is the brother of Epeli Deabu. They were originally members registered under Tokatoka Valeriko, No 518, Mataqali Duluabete of Sasa, Macuata.

[2]	Their mother, the late Emali Salabokola was a member of Tokatoka Naodamu No 38, Mataqali Naodamu, Yavusa Naodamu of Labasa.

[3]	The 2ndplaintiff states that he was transferred from Tokatoka Valeriko No 518 to Tokatoka Naodamu No 328 and the 1st defendant had formalised that in its register.

[4]	The 1st plaintiff did not marry and was without issues and requested the 2nd plaintiff to join him and be registered with him under Tokatoka Naodamu No 328, to perpetuate that landowning unit as the 2nd plaintiff had issues.

[5]	It is further stated that the 2nd plaintiff and members of Tokatoka Valeriko agreed that all required process under customs and traditions have been completed and asked the 1st defendant to formalise that customary transaction under its record and the defendant insisted the plaintiff complete other requirements. 

[6]	The plaintiff states that those requirements have all been fulfilled but the defendant has failed to formalise the transaction under its register.

[7]	Therefore, the plaintiff seeks following relief in his statement of claim.

i.	A declaration that customary dealings amongst Native Fijians are legally recognized.

ii.	A declaration that the customary requirements for the transfer of the 2nd plaintiff to the 1st plaintiff's land owning units have been fulfilled in accordance with custom and tradition.

iii.	An order directing the 1st defendant to recognize the transfer and formalize it under its records.

iv.	Costs.

[8]	The plaintiff asks the court to declare and compel the defendant to register the 2nd plaintiff and his heirs into the landowning unit of the 1st plaintiff so that they can assume all customary rights and responsibilities assigned to that Native Landowning Unit in accordance with customs and traditions.

[9]	In support of the defendant's summons to strike out, a senior administration officer of the defendant has filed an affidavit.

[10]	In that affidavit, the deponent states that the duty which the defendant is requested to perform is a statutory duty provided under the Native Lands Act, cap 133. Further, it is deposed that the functions of the defendant are within public and administrative law and the law requires the plaintiff to initiate his action by way of judicial review.

[11]	The defendant has made the application pursuant to Order 18 rule 18 (1) (a) (b) and (d) of the High Court Rules 1988 and the inherent jurisdiction of the court.

[12]	Order 18 rule 1 reads:

18 (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

(a)	It discloses no reasonable cause of action or defence, as the case may be; or

(b)	It is scandalous, frivolous or vexatious; or

(c)	It may prejudice, embarrass or delay the fair trial of the action; or

(d)	It is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

[13]	The plaintiff has not filed any affidavit in opposition. However, the plaintiff's counsel made submissions and also filed written submissions. It was submitted that Order 15 rule 16 of the High Court Rules allows the plaintiff to seek a declaratory judgment. It was further submitted that the plaintiff's action is based on section 3 of the Native Lands Act; the dispute is between the plaintiff and defendants refusing to recognise what the plaintiff has done is customary and legally enforceable and, therefore, court has jurisdiction to hear the matter.

[14]	The only issue to be determined here is whether the plaintiff has followed the correct procedure in instituting this action.

[15]	The defendant's contention is that the plaintiff should have brought the proceedings by way of judicial review.

[16]	The plaintiff's argument is that since the remedy sought by the plaintiff was of declaratory nature, this action can be maintained under Order 15 rule 16 of the High Court Rules.

[17]	The statement of claim, when perused clearly shows that the cause of action is the defendant' failure to formalize the customary transaction under its record despite the completion of required process under customs and traditions by the plaintiff, which in, my view, is a clear instance of refusing to perform a statutory duty by the defendant.

[18]	The defendant is a statutory body established by the Native Land Act. Further, the functions of the defendant involve public and administration actions which requires the plaintiff to initiate this action by way of judicial review.

[19]	In O'reilly v. Mackman [1983] A.C 237 at 285, Lord Diplock stated the proper procedure to be followed in an action of this nature as follows:

'Now that those disadvantages to the applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and this means to evade the provisions of Order 53 for the protection of such authorities.'

[20]	In the present action, the remedies sought by the plaintiff clearly fall within the purview of judicial review since it involved administrative and public law matters. Therefore, I hold that the procedure employed by the plaintiff in this action is wrong in law.

[21]	On the above premise, I strike out the plaintiff's action.

[22]	Cost is summarily assessed in the sum of $ 150.00.

Pradeep Hettiarachchi
JUDGE

At Suva
24th November, 2011