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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA, FIJI ISLANDS
JUDICIAL REVIEW HBJ NO.: 003 OF 2014L
BETWEEN : STATE
A N D : ITAUKEI LANDS APPEALSTRIBUNAL a body duly
constituted under the iTaukei Lands Act.
RESPONDENT
EX-PARTE : POATE RATU of Moala Village, Nadi, Farmer for and on
behalf of himself and Yavusa Natutale
APPLICANT
A N D : NIKOTIMO DRIU of Sikituru Village, Nadi.
INTERESTED PARTY
Appearances:
Mr Kitione Vuetaki for the Applicant
Ms. M. Lee for the Respondent
Mr K. Tuinidau for the Interested Party
JUDGMENT
of the Respondent given on the 6th of June, 2014 that it had jurisdiction to hear an appeal from the Interested Party against a decision of the iTaukei Lands Commission concerning removal of his name from Mataqali Sauvana.
being granted to issue Judicial Review proceedings. The reliefs sought by the Applicant in his Originating Motion are as follows;
(i) A declaration that the decision of the Chairman of the then Native Land
Commission given on the 16th day of November, 1990 that Nikotimo Driu’s name be removed from Mataqali Sauvana was a final and binding decisionon Nikotimo Driu and the iTaukei Land Commission and Respondent are estopped from further considering the issue.
(ii) A declaration that the Respondent had exceeded jurisdiction in erroneously
deciding to hear an appeal from a decision of the Chairman of the iTaukei Lands Commission under Section 10(2) of the iTaukei Lands Act that Nikotimo Driu’s name be removed or struck out from Mataqali Sauvana Vola ni Kawa Bula as reiterated by the iTaukei Land Commission that it will no longer consider the matter.
(iii) Alternatively, a declaration that the Respondent failed to consider the
relevant consideration that the removal of Nikotimo Driu’s name from Mataqali Sauvana was a decision under Section 10(2) of the iTaukei Lands Act and not within its jurisdiction and it therefore exceeded jurisdiction in hearing an appeal against the removal or striking out of his name from Mataqali Sauvana Vola ni Kawa Bula.
(iv) A declaration that the Respondent did not consider the relevant consideration
to give rights of natural justice to Yavusa Natutale by giving them a copy of the decision of the iTaukei Lands Commission dated 9th December, 2011 and the purported appeal of Nikotimo Driu via his Solicitor dated 9th January, 2014 so they could seek legal advice thereon and question them on their jurisdiction.
(v) A declaration that upon Nikotimo Driu informing Chairman of Respondent at
the hearing that said Chairman was his teacher there was perceived bias in said Chairman not reclusing himself and thereby the Respondent was not within jurisdiction as an unbiased tribunal.
(vi) A declaration that the hearing conducted by Respondent at Moala village on
6th June, 2014 regarding removal of Niko Driu’s name from Vola ni Kawa Bula of Mataqali Sauvana was in excess of jurisdiction and any decision resulting there from is null and void.
(vii) Certiorari to issue quashing decision of Respondent to hear the Interested
Party’s Appeal dated 9th January, 2014 and any decision given pursuant to the 6th June, 2014 hearing of said purported appeal.
(viii) Permanent Stay of Proceedings pursuant to the Respondent’s decision to
hear Nikotimo’s appeal from decision of iTaukei Land Commission dated 9th December, 2011 and any decision by Respondent pursuant to Respondent’s hearing conducted at Moala Village on the 6th of June, 2014.
(ix) Other Declarations or Mandamus Orders as the honourable Court may decide.
(x) Costs on an indemnity basis.
Applicant - Affidavit sworn by him 29th July, 2014.
1st Supplementary Affidavit sworn by him on 6th August, 2014.
2nd Supplementary Affidavit sworn by him on 8th August, 2014.
Respondent - Affidavit in Opposition sworn by Peni Waqa the Secretary of
theRespondent Tribunal sworn on 21st October, 2014.
Interested Party- Affidavit sworn by the Interested Party on 18th August,
2014.
orally argued the matter and tendered their written submissions too.
Background
had a child named Nikotimo Driu (Interested Partyin this matter) on 18th December, 1958. The child was registered by Native LandsCommission (NLC) now known as the Native Lands and Fisheries Commission (NLFC) in the Tokatoka Nadugulagi, Mataqali Betovakabuli, Yavusa Nasaunivalu in 1959.
(ii) On information provided by the Magistrate Court at Lautoka, pursuant to an adoption order Driu was then written as the child of his grandmother Asena Lewagasau on 17th November, 1966. Driu was also written into Mataqali Sauvana in the Register of Native Lands (RNL) coined in the iTaukei Language as Vola ni Kawa Bula (VKB)through his grandmother Asena of Moala Village.
(iii) On 11th October, 1990 the NLC conducted a hearing attended by Assistant Roko S. Matalomani and members of Moala Village where Nikotimo Driu and others gave evidence. On 16th November, 1990 the Chairman of NLC decided that Nikotimo Driu remain in his father’s Mataqali and his name be removed from Mataqali Sauvana VKB as double registration was prohibited. On the 7th November, 1990 the NLC had written a letter to Driu concerning its decision and he sought Judicial Review of the said decision in Lautoka High Court Judicial Review No. HBC 0077 of 1991L which was refused on 18th April, 1997.
(iv) Upon removal of Driu and one Apenisa Madrai’s name from Tokatoka Sauvana, Mataqali Sauvana and Yavusa Sauvana became extinct in copy of VKB of Mataqali Sauvana Tokatoka Sauvana lands were then gazetted on 23rd February, 2001 with 426.13 hectares reserved to the Applicant Yavusa Natutale comprising Tokatoka Numbers 25, 32, 33 and 34 and 76.02 hectares reserved for Mataqali Nagatagata and Yavusa Nacaqaru of Sikituru Village.
(v) The Register of Native Lands (VKB) of Tokatoka Matarasiga of Mataqali Sauvana were amended by deleting the said Tokatoka and Mataqali and the land was registered in the name of Applicant’s Yavusa Natutale. Two other Register of Lands of Yavusa Sauvana were amended, one of which was reserved to Tokatoka Nalubati of Yavusa Nacaqara and one to Mataqali Nagatagata of Yavusa Nacaqaru. The lands were then administered by iTaukei Lands Trust Board and leased to other persons.
Proceedings Complained about
letter written by one Luke Cagimaira Sayabo that Maqali Ketenavu and Yavusa Ketenavu were still in existence. At the time and still now, there were two Yavusas’ in Moala Village, namely Yavusa Natutale and Yavusa Nacaqaru collectively known as Ketenavu.
(ii) Sayabo then gave evidence at the sitting that he was of Mataqali Ketenavu of Yavusa Ketenavu of the district of Nadi and that their lands should be returned to them. The Commission then said that Ketenavu and Sauvana were extinct and no further Commission will sit to consider it.
(iii) Thereafter the Respondent, iTaukei Lands Appeals Tribunal (Respondent) came to Moala Village concerning Nikotimo Driu’s appeal. However, the Applicant’s Turaga Ni Yavusa nor Turaga ni Koro had not received any letter from the Ba Provincial Office setting out the particulars of Respondent’s coming in order for them to prepare for the sitting.
(iv) The Applicants had not sought legal advice and did not have their Lawyer present when the Respondent came to their village to adjudicate on 6th of June, 2014.
(v) The Chairman of the Respondent said that they have received a letter dated 9th January, 2014 from Mr Tunidau as Nikotimo Driu’s Lawyerregarding a decision of the iTaukei Lands and Fisheries Commission decision on 9th December, 2011. The Applicants were not shown the said decision or the letter and the Applicants were not aware of any decision of the iTaukei Lands Commission on 9th December, 2011 regarding removal of Driu’s name from Mataqali Sauvana VKB except that decision of the Chairman of the NLC dated 16th November, 1990. The Chairman of the Respondent also stated that the appeal was founded on the iTaukei Lands Act which gave the right to a member of a Mataqali or Tokatoka to appeal the decision of the Chairman of the iTaukei Lands Commission within 90 days of his decision on a dispute.
(vi) The Applicant believes that the Appeal was out of time as it was 1 year
10 months late if the decision was dated 9th December, 2011 and the purported appeal dated 9th January, 2014.
(vii) Driu gave evidence at the hearing and the Applicant was allowed to ask
Questions from him and no other evidence was taken and the Respondent stated that its decision will be given on the 6th of August, 2014.
Grounds upon which Judicial Review is sought
1990 heard evidence on removal of name of Driu from Mataqali Sauvana and the Chairman of the NLC has decided on 16th November, 1990 that Driu’s name be removed from Vola ni Kawa Bula (“VKB”) of Mataqali Sauvana and Yavusa Sauvana. The Chairman of the said Commission has power under Section 10 (2) of the Native Lands Act to order deletion of a name of any iTaukei recorded and registered in any proprietary unit other than the proper unit. The said decision of the Chairman was final and binding on Nikotimo Driu and The iTaukei Lands Commission and the Respondent Appeals Tribunal were stopped from considering the matter further.
(ii) Under Section 7(1) of the Native Lands Act the Respondent Appeals Tribunal only has the power to hear and determine appeals from decision of the iTaukei Lands Commission under Section 6 and 17 of the Act and Section 16 decision of a Commissioner.
(iii) The Respondent failed to consider the relevant consideration that the Chairman of the NLC had decided the removal of Nikotimo Driu’s name on 16th November, 1990 and this decision was final and binding and both Chairman of the Commission and Driu were stopped from fresh reconsideration of the issue and the Respondent thereby exceeded jurisdiction.
(iv) The Respondent failed to consider the relevant consideration of its powers under Section 7 (1) or exceeded its jurisdiction in hearing an appeal against a decision of the Chairman of the NLC under Section 10(2) of the Act.
(v) The Respondent at a sitting at Moala Village on 6th June, 2014 claimed jurisdiction under the iTaukei Lands Act of an appeal within 90 days from a decision of the Chairman of iTaukei Lands Commission.
(vi) The Respondent failed to consider the relevant consideration that any party to a dispute must be given rights of natural justice in disclosures of the decision being appealed and the ground before the appeal so it could prepare itself for the hearing. The Respondent was not within the jurisdiction as it failed to give copy of the 9th December, 2011 decision of the Chairman of iTaukei Lands Commission and the grounds of appeal of Driu’s purported appeal to Yavusa Natutale being a party effected by the removal of Driu’s name from Mataqali Sauvana.
(vii) There was perceived bias taking the Respondent outside its required unbiased jurisdiction to determine and hear the appeal due to the fact that the Chairman of the Respondent on being told at the hearing that he was a former Teacher of Driu did not recluse himself from the hearing.
Issues raised during the substantive hearing
to the Applicant? Or was there a breach of natural justice?
(c) Was the Chairman of the iTaukei Lands Appeal Tribunal biased as he
was a Teacher at one time of Nikotimo Driu the Interested Party.
Issue No. 1
Court Rules for Judicial Review of a proceeding of the Respondent held on 6thJune, 2014 at Moala Village in Nadi that it had jurisdiction to hear an appeal from Nikotimo Driu against a decision of the iTaukei Lands Commission givenon 30th October, 2013 that they will stand by the decision of the Commission made in 1990 that Driu cannot be registered twice in the Vola ni Kawa Bula or VKB.Though the Applicant states in his Notice of Statement that the decision appealed is the decision of the iTaukei Lands Commission dated 9th December, 2011 the Respondent and the Interested Party contended that the said appeal by Driu is from a decision of the iTaukei Lands and Fisheries Commission dated 30th October, 2013.
(ii) The Applicant states that the decision of the Chairman of the NLC given on
16th November, 1990 that Driu’s name be removed from Mataqali Sauvana was a final and a binding decision and Driu and the NLC and Respondent are estopped from further considering the issue. He also states that the Respondent exceeded jurisdiction in erroneously deciding to hear anappeal from the said decision of the Chairman of the NLC given under Section 10(2) of the iTaukei Lands Act that Driu’s name be removed or struck out from Mataqali Sauvana VKB.
(iii) The Respondent submits that the said decision of the NLFC dated 30thOctober, 2013 was a decision under Section 6(5) of the iTaukei Lands Act and not a decision under Section 10 of the said Act and therefore the Interested Partyhas a right to appeal the said decision.
(iv) TheInterested Party contends that Niko Driu’s Solicitors letter of 30th September, 2013 written to the Chairman, NLFC brought into perspective the Adoption Order given by the Magistrate Court and its legal effect. Driu was registered as an iTaukei by virtue of his iTaukei parents through his legal mother Asena Lewagasau under the said Adoption Order and the legality of Birth Certificate RG. No. 649477. It is submitted that Driu was registered by entry in the Register of Native Lands as Vola ni Kawa Bula (VKB) under his iTaukei legal mother Asena Lewagasau via the said Birth Certificate RG No. 649477 pursuant to Section 23(2) of the Birth Registration Act. It is contended by the Interested Party that the Adoption Order and its legal effect was not inquired into by the Native Lands Commission in its inquiry in 1990 resulting in the deregistration of Niko Driu from the proprietary unit of his grandmother Asena Lewagasau in the Vola ni Kawa Bula.
(v) The Interested Party states further that Section 10 of the iTaukei Lands Act is inapplicable to be relied upon by the Applicant to oppose Nikotimo Driu’s appeal to the Respondent because the legality of Driu’s Birth Certificate RG No. 649477 was never an issue with the Applicant or the Native Lands Commission inquiry in 1990.
(vi) They argue that the appeal of the Respondent is primarily premised on Section 6 and 17 of the iTaukei Lands Act and does not relate to Section 10 of the said Act.
(vii) In his Affidavit in Opposition the Interested Party has deposed that his biological parents have passed on and so is his adoptive mother Asena Lewagasau but none had advised him being legally adopted. He also deposes that no official of the Native Land Commission (NLC) had produced or disclosed at the inquiry in 1990 any information or document about his legal adoption.
(viii) The Interested Party states further in his Affidavit that by letter dated 13th October, 2010 the Native Lands Fisheries Commission advised him that the basis of registration with the VKBis only Birth Certificate. He also states that by letter dated 30th September, 2013 his Solicitor, acting on his behalf, disputed the material non-disclosure, omission and failure by the NLC inquiry in 1990 to consider, investigate, enquire and or scrutinize the details of his legal relationship with Asena Lewagasau via his birth Certificate RG No. 649477 and it genesis vide the adoption Order of the First Class Magistrate Court at Lautoka in 1966 in contrast to his initial birth records entry in the VKB.
(ix) In the said letter dated 30th September, 2013 addressed to the Chairman of the NLFC annexed marked as ND6 to the Affidavit in Opposition the Solicitor of theInterested Partyhad stated that their reading of the Native Lands Act Cap 133 shows no provision which states that a decision of the Native Lands Commission cannot be overturned or overridden by any subsequent Commission. He also states that there is a good and justifiable cause for the Commission to review, alter and change the decision made by Commissioner Ilaitia Caginavanua and to re-register Niko Driu back into the roll of the Vola ni Kawa Bula under his adoptive mother Asena Lewagasau.
11. (i) The Respondent Tribunals jurisdiction to hear appeals from decision of the
NLFC is provided by Section 7 of the Native Lands Act as amended by Native Lands (Amendment) (Appeals Tribunal) Act No. 44 of 1998.
(ii) I set out below full Text of Section 7(1) and (2) of the act as follows:
“7(1) There is hereby constituted an Appeals Tribunal consisting of a chairman and two other members all to be appointed by the Minister. It shall be the duty of the Appeals Tribunal to hear and determine appeals from decisions of the Commission under Section 6, 7 and from a Commissioner under Section 16, and any such determination by the Appeals Tribunal shall be final.
(2) Any person aggrieved by any such decision of the Commission or of a commissioner, shall within 90 days of the announcement thereof
give notice of his desire to appeal, which shall be signed by the appellant or his duly authorised agent, to the Commission. The
notice shall contain the grounds of appeal.”
(iii) It is clear from the above provision that the Native Lands Appeal Tribunal is vested with the jurisdiction to hear appeals from decision of the Commission under Section 6 and 17 and from a Commissioner under Section 16.
Analysis and Determination
Fisheries Commission dated 30th October, 2013 which is the subject matter of Nikotimo Driu’s appeal pendingbefore the Native Lands Appeal Board (annexed marked ND8 to the affidavit of the Interested Party). This letter is addressed to the Interested Party’s Lawyer Mr Tunidau.
(ii) The gist of the aforementioned letter are contained at the 3rd to 5th paragraphs
and translated to English as follows:
“Please be advised that the decision given by the former TLFC Chairman Ilaitia Caginavanua to delete the name of Niko Driu from Asena Lewagasau and register him with Tokatoka Nadurulagi under Eroni Datitiwa his biological father will remain and not to be changed.
We the iTaukei are registered in the VKB only to our biological father or mother. An adoption is the second birth certificate under the law but it did not remove the true information about who our true parents are.
We will only work on the basis of the information about his true parents as written in the first birth certificate.
This also confirmed that we the iTaukei are registered only once and not twice in the VKB.”
(iii) The said letter does not convey a decision taken by the NLFC after an
Inquiryheld pursuant to Section 6, 16 or 17 of the Native Lands Act. It is a letter sent to the Interested Party’s lawyer Mr Tunidau in response to Mr Tunidau’s letter dated 30th September, 2013 (ND6) addressed to the Chairman of the NLFC. It states that the decision given by the former NLC Chairman Ilaitia Caginavanua in 1990 will remain and not be changed. No inquiry has been held by the NLFC under Section 6, 16 or 17 of the Native Lands Act prior to issuing the said letter. Therefore I am of the view that the letter dated 30thOctober, 2013 only confirms the decision of the NLC taken in 1990. As such at the very outset I find that there is no appealable decision given by the NLFC on 30thOctober, 2013.
(iv) From the evidence adduced and the Submissions filed by the Interested Party I find that he is trying to interpret the NLFC letter dated 30thOctober, 2013 as a decision given under the provisions of Section 6, 17 of the Native Lands Act as he cannot appeal against the decision given on 16th November, 1990 due to the 90 days- time limit to appeal imposed by the Act. The Interested Party’s intension is clear from the grounds of appeal. What he is seeking is to overturn the NLC decision given in 1990.
(v) His contention is that his Adoption Order and the Birth Certificate has not been considered at the Natives Lands Commission Inquiry which was held on 11th October, 1990. It is evident from document PR8 attached to the Applicant’s Affidavit that the Interested Party Driu and one Apenisa Madrai has sought Judicial Review of the decision of the Native Lands Commission in Lautoka High Court Judicial Review No. HBJ 0077 of 1991Land it was refused by Justice Lyons on 18th April, 1997. In his ruling dated 18th April, 1997 Justice Lyons has held that Section 100 (4) of the Constitution precludes the High Court from dealing in any way with changes to the Native Lands Commission’s decisions.
(vi) Furthermore in the Affidavit in Opposition filed by the Interested Party he has deposed that he has never seen or in possession at any time of his Birth Certificate referenced as RG No. 184/59. He states that upon his Solicitors examination of his Birth Certificate he was advised that he was legally adopted by his paternal grandmother Asena Lewagasau on 17th November, 1966 by an Adoption Order of the Lautoka Magistrate Court. He also states that the copy of the Adoption Order was obtained in March, 2014. It is contended by him that his former Birth Certificate RG No. 184/59 is null and void because it had been extinguished by Adoption Order No. 3 of 1966. He deposes that the iTaukei Lands and Fisheries Commission (formerly the Native Lands Commission) cannot re-register his name in the Vola ni Kawa Bula in 1990 under his biological father because Birth Certificate RG No. 184/59 had been extinguished by Adoption Order No. 3 of 1966.
(vii) The above evidence confirms that the Interested Party is challenging the 1990 decision of the Native Lands Commission on the ground that he was not aware or he was not in possession of his valid Birth Certificate at the time of the inquiry held in 1990. The Adoption Order he refers to is an Order given in 1966. Though the Appeals Tribunal has the power to hear further evidence in Appeal proceedings Interested Party must first satisfy that he has the right to appeal to the Appeals Tribunal.
13. (i) The Learned Counsel for the Interested Party argues that the said decision of
theChairman of the Native Lands Commission is a decision made under Section 6(1) of the Act and it entitles the Interested Party to dispute the question of ownership of his lands made extinct as the consequences of the said Order. It is also contended by the Learned Counsel for the Interested Party that the letter of 30th October, 2013 falls within the ambit of Section 17 of the iTaukei Lands Act.
(ii) Section 6 of the Native Lands Act empowers the Native Lands Commission to institute inquiries into the title of all lands claimed by the Mataqali or other divisions or subdivisions of the people. The decision given by the Native Lands Commission in 1990 and confirmed by its letter dated 30th October, 2013 is not a decision in regard to title of lands but it’s a decision to remove the Interested Party’s name from Mataqali Sauvana Vola ni Kawa Bula as double registration is prohibited. As such I am of the view that the Chairman’s decision of 1990 does not fall within the ambit of Section 6(1) of the said Act.
(iii) Furthermore, I cannot agree with the Learned Counsel for the Interested Party that the decision also falls within the ambit of Section 17 of the Native Lands Act as the dispute resolved by the Native Lands Commission was not a dispute which arose between native Fijians as to the headship of any division or subdivision of the people having the customary right to occupy and use native lands. It is evident that the dispute adjudicated by the Chairman of the Commission in 1990 was in respect of an error in the Vola ni Kawa Bula records of the Interested Party being registered in two Mataqalis. The Chairman of the Commission has decided that it was an error to have him recorded in Mataqali Sauvana. As such the said decision cannot be considered as a decision which falls under the ambit of Section 17 of the Native Lands Act.
(iv) From all of the above I conclude that the letter dated 30th October, 2013 sent by the NLFC to the Interested Party is not a decision given under Section 6, 16 or 17 of the Native Lands Act and therefore the Respondent Tribunal has exceeded jurisdiction by hearing the appeal of the Interested Party.
14. (i) I agree with the Learned Counsel for the Applicant that the aforementioned
decision of the Chairman of the NLFC falls under the ambit of Section 10(2) of the Native Lands Act as it’s a decision by the Chairman of the Native Lands Commission directing the Registrar of Titles to remove the Interested Party’s name from Mataqali Sauvana from the Vola ni Kawa Bula as double registration is prohibited.
(ii) Section 10(2) of the Act states :
“When it is found that an error has been made in the preparation of such register or that any Fijian has been recorded and registered in any proprietary unit other than the proper unit or that the name of any Fijian has been inadvertently omitted from the register recording the proper unit of such Fijian, it shall be lawful for the Registrar of Titles on the receipt of an order under the hand of the Chairman of the Native Lands Commission to correct the same or delete or add the names of such persons as the case may be.”
(iii) Scope of Section 10(2) of the Act has been discussed in Native Land Trust Board v Kaukimoce [2012] FJCA 17; ABU 0043.2008 (21 March 2012).
(iv) I will quote paragraph 28, 31 and 40 of the said Judgment which I think is relevant to the issue in this matter.
Paragraph 28 - Under Section 10(1) the volumes of VKB are deposited with the Registrar of Titles for safe keeping. It is Section 10(2) of the Act which deals with errors that may have been made in compiling the ‘VKB’. Whether an error has been made is a matter for the Chairman of the iTaukei Lands Commission. If the Chairman is satisfied that an error has been made he shall direct the Registrar of Titles to correct that error. It is only the Chairman of the Commission who has jurisdiction to determine whether an error has been made and if so to direct the Registrar of Titles to correct that error.
Paragraph 31 - Although there was no material before the Court to
support that claim, it is clear that if the Appellant has made that assertion then it is not correct. Section 10(2) expressly gives the Chairman the authority to order the Registrar of Titles to correct the Register if the Chairman has found that an error has been made. The Chairman is required to determine whether an error of the kind to which reference is made in Section 10(2) exists.
Paragraph 40 - In the present case the Respondent deposed in his Affidavit that numerous requests had been made for the alleged error or errors to be corrected. It is stated in the Affidavit that the Appellant claimed that there was no jurisdiction to correct such an error. It would appear that the Respondent might have been in a position to pursue an application under Order 53. However the Affidavit also stated that the last request was made in 2004. As a result any application for Judicial Review would at some stage have been met with the objection of substantial delay. However there does not appear to be any impediment to the Respondent making a further formal application to the Chairman. The procedure under Order 53 may then be utilised in the event that the Appellant has refused to exercise his statutory function. Furthermore, any decision made by the Chairman may be amendable to challenge under Order 53.
[emphasis added]
(v) It is clear from the said Judgment it is only the Chairman of the NLFC who has jurisdiction under section 10(2) of the Act to determine whether an error has been made in compiling the VKB and if so to direct the Registrar of Titles to correct the error.
(vi) In the said case the Respondent Yavusa has made request to the NLC to correct an error contained in the NLC record but the NLC has said it has no power to correct its records. The Court of Appeal has said if the NLC made that assertion then it was not correct. In my view what the Court of Appeal meant was that the Chairman NLC has a right to revisit his decisions when there are errors made in the VKB. In the light of the principle laid down in the said decision of the Court of Appeal, I cannot agree with the argument of the Learned Counsel for the Applicant that the Chairman’s decision given on 16th November, 1990 was a final decision on the Interested Party and the NLC and Respondent. Though the Respondent has no jurisdiction to hear an appeal from a Section 10(2) decision of the Chairman of the NLFC, Chairman, is not stopped from revisiting the said decision to see whether there is an error made in the VKB.
(vii) The Court of Appeal has said further when a statutory body such as the NLFC does not perform a function that is expressly required of it under the act the aggrieved party is entitled to make an application for Judicial Review under Order 53 of the High Court Rules. It is further stated in the said Judgment that any decision made by the Chairman maybe amenable to challenge under Order 53.
15. (i) Before parting with the matter I would make some relevant observations,
whether the Interested Party can utilise the procedure under Order 53 as their earlier application for Judicial Review has been dismissed by Lyons J. Lyons J has dismissed the earlier application for Judicial Review in respect of the decision made by the NLFC by its letter dated 7th November, 1990. The said decision of Lyons J is not a decision given after considering the merits of the application. It is a decision given upon considering the provisions set out in Section 100(4) of the 1997 Constitution of the Republic of the Fiji Islands and the principles laid down by the Fiji Court of Appeal in Ratu Nacanieli Nava v NLC and NLTB Civ App 55 of 1993. Lyons J has stated in his Judgment that Section 100(4) of the Constitution preclude the Court from dealing in any way with the changes to the NLC decisions. He has said the Court of Appeal held that the Courts in Fiji have no jurisdiction to entertain challenges from decisions of the NLC whether it be by Judicial Review or otherwise.
(ii) The said decision of Lyons J is founded on the provisions of Section 100(4) of
the 1990 Constitution which states that:
“100(4)-For the purpose of this Constitution the opinion or decision of the Native Land Commission on;
(a) matters relating to and concerning Fijian Customs,
traditions and usage or the existence, extent or
application of customary law; and
(b) disputes as to the headship of any division or sub-division
of the Fijian people having the customary right to occupy
and use any native lands,
shall be find and conclusive andshall not be challenge in a Court of Law”.
(iii) As Section 100(4) of the 1990 Constitution was not replicated in the 1997 Constitution there is no bar for the Interested Party to utilize the procedure under Order 53 of the High Court Rules in respect of the Chairman’s decision dated 30th October, 2013, but not the decision given in 1990 as his right for Judicial Review of the decision is prospective and not retrospective with the amendment of the Constitution.
(iv) Furthermore the Interested Party has stated in his Affidavit that he found his
valid Birth Certificate in 2013 and it was not produced before the NLC at the inquiry held in 1990. The Chairman of the NLFC is required
under the Act to consider such evidence to determine whether an error of the kind to which reference is made in Section 10(2) exists.
If the Chairman is refusing to exercise his statutory functions or gives an incorrect decision after exercising his powers, Interested
Party should utilise the procedure under Order 53 of the High Court Rules instead of appealing to the Respondent Tribunal. As I
have said before the decision given by the Chairman dated 30th October, 2013 is not a decision given under Section 6, 16 or 17 of
the Act,but a decision which falls under the ambit of Section 10(2) of the Act. Therefore such a decision is amenable to challenge
under Order 53 as per the decision of the Court of Appeal mentioned herein before; not by way of an appeal to the Appeal Tribunal.
16. Conclusion
(i) In view of the reasons set out as above I conclude that the Respondent failed to consider the relevant consideration that the removal of Nikotimo Driu’s name from Mataqali Sauvana was a decision under Section 10(2) of the iTaukei Lands Act and not within its jurisdiction and it therefore exceeded jurisdiction in hearing an appeal against the removal or striking out of his name from Mataqali Sauvana Vola ni Kawa Bula.
(ii) I am of the view that the issue b and c in regard to breach of Natural Justice and bias alleged by the Applicant in this application need not be discussed and determined in this Judgment as I have held that the Respondent iTaukei Appeals Tribunal has exceeded jurisdiction in hearing the appeal of the Interested Party.
(iii) Though the Applicant has asked for indemnity costs I do not think it is proper to make an order for costs in this matter as it involved interpretation of Statutory provisions of an act with the participation of the State as well. Therefore I make no order as to costs; the parties are to bear their own costs of these proceedings.
16. Final Orders
(i) In the light of all I have said above I grant the following declarations and orders.
(a) A declaration that the Respondent failed to consider the relevant consideration that the removal of Nikotimo Driu’s name from Mataqali Sauvana was a decision under Section 10 (2) of the iTaukei Lands Act and not within its jurisdiction and it therefore exceeded jurisdiction in hearing an appeal against the removal or striking out of his name from Mataqali Sauvana Vola ni Kawa Bula.
(b) A declaration that the hearing conducted by Respondent at Moala village on 6th June, 2014 regarding removal of Niko Driu’s name from Vola ni Kawa Bula of Mataqali Sauvana was in excess of jurisdiction and any decision resulting there from is null and void.
(c) A Writ of Certiorari is issued to quash the decision of Respondent to hear the Interested Party’s appeal dated 9th January, 2014 and any decision given pursuant to the 6th June, 2014 hearing of said purported appeal.
(d) Permanent Stay Order is issued to Stay of Proceedings to pursuant to the Respondent’s decision to hear Nikotimo’s appeal from decision of iTaukei Land Commission dated 30th November, 2013 and any decision by Respondent pursuant to Respondent’s hearing conducted at Moala Village on the 6th of June, 2014.
(e) Parties to bear their own costs.
Lal S. Abeygunaratne
[Judge]
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URL: http://www.paclii.org/fj/cases/FJHC/2016/417.html
