IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBJ 4 of 2005L

BETWEEN:

RATU KALIOVA DAWAI
Applicant

AND:

iTAUKEI LANDS & FISHERIES COMMISSION
1st Respondent

AND:

RATU VILIAME TAGIVEITAUA
2nd Respondent

AND:

RATU VANANALAGI
3rd Respondent

AND:

ILAITIA BUADROMO
4th Respondent

JUDGMENT ON LEAVE FOR COMMITTAL

Judgment of: Inoke J.

Counsel Appearing: Mr S Fa (Applicant)
 
Solicitors: Fa & Co (Applicant)
 
Dates of Hearing: 30 November and 7 December 2011

Date of Judgment: 8 December 2011

INTRODUCTION

[1]	This is a dispute over who should hold the chiefly title of Tui Nadi, the paramount chief of the vanua of Nadi. The applicant claims that the respondents have deliberately disobeyed two court orders from this Court in his favour in contempt of court. This is his application for leave to have them committed and punished for the alleged contempt. The respondents are the iTaukei Lands and Fisheries Commission, its chairman and three commissioners.

[2]	The application was heard ex-parte pursuant to O 52 r 2(2) of the High Court Rules 1988.

THE BACKGROUND

[3]	This is an ongoing dispute following the death of the last Tui Nadi, Ratu Isireli Rokomatu Namulo, in March 2004. Ratu Isireli was one of the applicant’s brothers, all of whom are now deceased. The applicant, Ratu Kaliova Dawai, claims that he was traditionally installed as Tui Nadi on 19 October 2005. However, the plaintiff’s nephew, Ratu Napolioni Naula Dawai, also laid claim to the chiefly title and the Commission found in favour of the nephew. The plaintiff then filed these proceedings in this Court in May 2005 to have the Commission’s decision judicially reviewed.

[4]	The history behind the Commission’s decision goes back to an earlier dispute over the same chiefly title. When the previous to last Tui Nadi, Ratu Josua Navaqei Dawai, died in 1993, Ratu Isireli Rokomatu Namulo (a brother of the plaintiff) and his nephew, Ratu Napolioni Naula Dawai, both laid claim to the title. The villagers were split into two factions. Each faction decided to install their own Tui Nadi. The majority faction installed the uncle (Ratu Isireli) as Tui Nadi on 21 December 1994 because he was accepted as the most suitable male descendant. Ratu Isireli then took up residence in the chiefly house (bure) and assumed headship of the vanua. On 30 December 1994, he learnt that the Commission had written to the iTaukei Land Trust Board informing the Board that the Commission had decided that his nephew, Ratu Napolioni, was the rightful Tui Nadi and that lease monies were to be paid to him. The uncle challenged that decision in this Court (in HBJ 21 of 1997L) by way of judicial review. Mr Justice Lyons refused leave for judicial review and the uncle appealed to the Court of Appeal which, by consent of the parties, declared on 6 February 1997 that there was no proper inquiry and quashed the commission’s 1994 decision and ordered a proper inquiry to be conducted. The Commission then sat on 13 September 1997 at Narewa village and conducted an inquiry and delivered its decision on 4 October 1997, again declaring the nephew to be the rightful Tui Nadi. That decision was later quashed by this Court (Townsley J) on 16 March 2000 in HBJ 21 of 1997L. It is not clear what happened from then on, but it appears that the uncle, Ratu Isireli, then continued to be Tui Nadi until his death in March 2004. After Ratu Isireli’s death, his brother the current applicant, Ratu Kaliova, claimed the title and his nephew, Ratu Napolioni, once again challenged him. That led to the current dispute between the applicant and his nephew and this action and the orders which are now the subject of this application.

[5]	The first of the orders which the applicant says were breached by the respondents were made on 12 May 2005 in the following terms:

(i)	That the applicant is granted leave to apply for judicial review;

(ii)	That the 1st respondent be restrained from convening any Commission of Inquiry or continuing any Commission of Inquiry already convened for the purpose of determining the holder of the title of TUI NADI until further order of this Court.

[6]	The second of the orders was made on 24 January 2007, with the consent of the parties, in the following terms:

(i)	That each party nominate a member for appointment as Commissioners;

(ii)	The Minister is to appoint the Chairman of the Commission who is to be qualified for appointment as a Judge or otherwise suitable by qualification and experience;

(iii)	The terms of reference for the Commission is to be determined in accordance with the custom and the vanua of Nadi as to who should be the holder of the title of Tui Nadi;

(iv)	Each party to be given natural justice;

(v)	Adjourned to 23/2/07 for resolution of the Commissioners.

[7]	The parties failed to agree on the Commissioners as per the consent orders of 24 January 2007 and the matter remained dormant until a few weeks ago on 22 November 2011, when the Commission, constituted by the 3rd, 4th and 5th respondents, came to the village of Narewa and held its own inquiry into the dispute.

[8]	The applicant argues that this Commission had no power to hold another inquiry by virtue of the consent orders. He says he must be given the opportunity to nominate his choice of Commissioner and by failing to do that, this Commission had deliberately breached those orders.

CONSIDERATION OF THE APPLICATION FOR LEAVE

[9]	It is obvious that the orders underpinning the alleged contempt of court must be proper orders in the first place: see Kelton Investments Ltd v Civil Aviation Authority of Fiji [1995] FJCA 15; Abu0034d.95s (18 July 1995) and Singh v Kiran [2002] FJCA 80; ABU0018U.2001S (29 November 2002). Fairness and logic lead to the same result. At the hearing of the application I pointed out to Mr Fa, counsel for the applicant, that I had some difficulty with these points and gave him seven days to file written submissions. He has filed his submissions supplemented by oral submissions on 7 December 2011. I have considered them and have come to the following conclusions.

[10]	It cannot be disputed that the power to decide who should hold the chiefly title of Tui Nadi is vested in the Commission. That is contained in section 17 of the iTaukei Lands Act [Cap 133] (formerly Native Lands Act) which provides:

17.-(1) In the event of any dispute arising between native Fijians as to the headship of any division or subdivision of the people having the customary right to occupy and use any native lands, the Commission may inquire into such dispute and after hearing evidence and the claimants shall decide who is the proper head of such division or subdivision, and such person shall be the proper head of such division or subdivision:

Provided that if the claimants agree in writing in the presence of the Chairman of Commission as to who is the proper head of such division or subdivision it shall not be necessary for the Commission to hear evidence or further evidence as the case may be.

(2) On the conclusion of any inquiry held under subsection (1), the Chairman of the Commission shall inform the parties of the decision and shall transmit a copy of such decision to the scribe of the province in which the land belonging to such division or subdivision is situate and such decision shall be publicly read at the next meeting of the provincial council of that province.

(3) A person aggrieved by a decision of the Commission under this section may appeal against it to the Appeals Tribunal constituted under section 7.

[11]	Section 4 of the Act provides for the establishment of the Commission, so far as relevant, as follows:

4. The Minister shall appoint a Native Lands Commission consisting of one or more commissioners, each of whom shall have the powers of the Commission, ...

[12]	I think it is worth revisiting what was said by Sir Timoci Tuivaga, CJ in the Ka Levu case, Bulou Eta Kacalaini Vosailagi v Native Lands Commission [1989] FJHC 53 about the history behind the vesting of power to decide disputes over chiefly title in the Commission:

It is probably true to say that the Ka Levu dispute, saddening as it is for all concerned, would not have arisen if customary law relating to chiefly succession was in place. Disputes over headship of Yavusas have been a common feature of the Fijian chiefly system since the Cession. This trend was responsible for the amendment of the Act in 1961, which introduced Section 17 to the general law of Fiji. In moving the amendment Bill in the Legislative Council, the law-making body at the time, the then Chairman of the Commission (Mr. J.S. Thomson) explained its purpose as follows:-

"The purpose of this Bill is to give the necessary authority to the Chairman of the Native Lands Commission to settle disputes that may be referred to him by land owning units or groups of land owning units over the headship of the units. Disputes of this nature have been referred for some years now to the Native Lands Commission and these have usually been settled after discussion. There are, however, some disputes which cannot be settled by conciliation methods. Unfortunately, these appear to be becoming more common. In many cases, large sums of rent moneys from the leasing of Native Lands are involved, and in such cases the Chairman of the Native Lands Commission is asked by the disputing parties to decide on the question of the headship of the unit involved. At the moment, Sir, he has no legal authority to settle disputes. The reason for the proposal to vest the necessary authority in the name of the Chairman of the Native Lands Commission is that in recording the ownership of Native Lands and the membership of the various land owning units in the Colony the Native Lands Commission has recorded the history of every yavusa in Fiji (the yavusa being the basic social unit in Fijian Society).

The Commission has also recorded the names of the leaders of those units. Those records are in the custody of the Chairman of the Native Lands Commission. It is customary practice for the units to choose their own leader; normally the units choose the nearest agnate descendants to the founder of the unit.

This Bill does not seek to change that practice. It is only in cases where a dispute exists that the Chairman of the Native Lands Commission will decide on the headship of the units involved. He will reach that decision on the basis of the evidence which is available to him from the records in his custody. There are some disputes outstanding, awaiting the passing of this Bill." (see Fiji Legislative Council Debates, 1961 page 72)...

[13]	It seems to me beyond argument that the power to decide the rightful holder of the Tui Nadi title is vested in the Commission whose members can only be appointed in accordance with the Act. That is to say, such powers are vested exclusively in a Commission appointed strictly in accordance with the Act, namely, a Commission appointed by the Minister for iTaukei Affairs.

[14]	Secondly, the parties cannot bypass the Act by agreement sanctioned by the Court. Put simply, the parties cannot by agreement circumvent the law and have it sanctioned by the Court. Putting it in another way, the Court cannot order the parties to do something that is not allowed by the law even if they agreed to it. And if by trick or misconception they have so agreed, they cannot expect the Court to assist them in enforcing their illegal agreement; the loss lies where it falls: Stephens v Fisher [2009] FJHC 240; HBC163.2008L (22 October 2009); Latchman v Prasad [1960] 7 FLR 90.

[15]	In the present case, the parties have not been able to agree as to who the title holder should be. They have instead agreed as to who should decide for them. That is not provided for in the Act and therefore, with the greatest of respect, this Court cannot order it to be done in a way which is not so permitted by the Act.

[16]	I therefore conclude that the two orders made by this Court on 12 May 2005 and 24 January 2007 were made without jurisdiction and are of no effect.

[17]	It automatically follows that there was nothing to enforce in the first place and no persons to commit either.

[18]	I note that in the original title page to this judicial review, Ratu Napolioni was named as the 2nd respondent but his name has been left out of this application, presumably, because no orders have been sought against him. I also note that only the first respondent was named in the initiating proceedings but the current 2nd, 3rd, 4th and 5th respondents were not. They may have been joined in this application improperly. But I need not decide the point because the outcome of this case makes it unnecessary.

[19]	In his written submissions Mr Fa argued that a consent order could not be set aside except by consent. That may be true but the problem in this case was that there was no lawful order in the first place. His submission that I am bound by the principles of res judicata, apart from the fact that I am not bound by a decision of my fellow Judges, must also fail for the same reason. He also submitted that my decision in a similar dispute regarding the Tui Vitogo chiefly title, State v Native Lands Appeals Tribunal [2009] FJHC 164; HBJ 2 of 2009L (14 August 2009) has no bearing on this case. I am not persuaded. The facts of that case are the same as in this case. The only differences are the location and the relationships between the parties; they are not material. The decisions of the High Court and Court of Appeal in this area are not consistent. I feel myself bound by the Court of Appeal decision in Namatua v Native Lands and Fisheries Commission [2005] FJCA 85; ABU0020.2004S (4 March 2005). Mr Fa's final submission was that this is not a challenge to any of the Commission's decisions on custom and tradition but rather a challenge to the right of the Commission to convene an inquiry. The submission is answered by what I have already said before. To use the analogy that I gave in Court: what is being challenged is the right to choose the referee; that right is set out in the Act; the Act does not allow the parties to choose their own referee. To push the analogy a little further, it seems to me that the applicant is so concerned with choosing his referee that he has forgotten about the match that is to be fought out. In the mean time the lawful referee wants the match to start but the applicant wants him stopped.

[20]	Finally, I have come to these conclusions without having to decide the question of whether this Court had jurisdiction in the first place to grant leave to judicially review any decisions of the Commission on this dispute. I think it is clear from the views which I expressed in the Tui Vitogo case (supra) and the binding precedent in the Fiji Court of Appeal decision in Namatua (supra) [contrast: State v Native Lands Appeal Tribunal [2010] FJHC 556; HBJ4.2009 (28 July 2010)] that the question would have been answered in the negative had it been necessary for me to answer it.

[21]	I therefore dismiss the plaintiff's application for leave to apply for committal for contempt of Court.

[22]	Although this was an ex-parte hearing and judgment, I think it is necessary that all the parties be served with the application papers and the judgment so that they know the Court's view of the matter and how it should now proceed. This dispute must come to an end. It has effectively been on going since 1993. I urge the parties and their counsels to bring it to an end as soon as possible. It might be worth reminding all concerned of what the former Chief Justice, Sir Timoci Tuivaga said in the Ka Levu dispute:

Fijian custom and tradition has its own in-built method of resolving even the hardest of disputes. It is called "vei sorosorovi" and is invoked in order to restore peace and harmony to village life and in a larger context to the life of the vanua. It of course requires a huge helping of magnanimity wisdom and understanding. It is only when Fijian custom and tradition is ignored or gives way to expediency that disputatious situations will arise in Fijian society."

COSTS

[23]	 I do not wish costs to stand in the way of a resolution and therefore make no order as to costs.

ORDERS

[24]	The orders are as follows:

(a)	Leave for the applicant to apply for an order of committal is refused.

(b)	The applicant shall serve copies of all the leave application papers and this judgment on all the respondents in this application and in the substantive action by 4.00pm on 12 December 2011.

(c)	There is no order as to costs.

Sosefo Inoke
Judge