High Court of Fiji

AND: RATU KITIONE EPARAMA TAVAIQIA, on beha the Yasawa Sabutoyautoyatoya of Viseisei Vuda.

1^st Defendant

iTAUKEI LAND TRUST BOARD a corporate of Victoriade, ade, Suva.

2^nd Defendant

REGISTRAR OF TITLE of ou House, Victoria Parade, Suva.

3^rd Defendant

Before : Master U.L. Mohamed Azhar
Counsels: Mr. Isireli Tuifua Fa for the Plaintiff
Ms. Pulekaria Maibatiki Low for the 1^st Defendant

Date of Ruling: 27^th July 2018

RULING
(On res judicata and striking out under O 18, r 18)

Introduction

01. This is the summons filed by the 1^st defendant on 24.10.2016 pursuant to Order 18 rule 18 of the High Court Rules and the inherent power of the Court. The summons is supported by an affidavit sworn by one Jeremaia Natoka. The first defendant seeks the following orders in his summons.

1. An Order that the Plaintiff’s Statement of Claim dated the 28^th day of June 2016 filed on the 28^th of June 2016 be struck out under the High Court Rules 1988 and under the inherent jurisdiction on the ground that
   

(i) It is an abuse of the process of the court;

And that the Plaintiff’s action against the First Defendant be dismissed;

2. An Order that the Plaintiff pays the First Defendant’s cost of defending the action on an indemnity basis together with the costs of and incidental to this application.
   

02. The plaintiff objected the summons and filled the affidavit sworn by Rusiate Naulivou and the first defendant then filed his affidavit in reply sworn by the same person who deposed the affidavit supporting the summons.

03. The plaintiff’s claim revolves around the ownership of the island of Vomo situated 22 kilometers off Lautoka. The plaintiff traces the ownership of the said island to his predecessors back to 1899. Briefly, sometimes in about 1871, the island of Vomo was owned by one George Winter pursuant to a Crown Grant No. 850. Upon the death of George Winter the ownership of Vomo Island was passed to his son Francis Pratt Winter pursuant to Transmission by death. On or about the 25^th of February 1899 Francis Pratt Winter was the registered proprietor of Certificate of Title Volume 12 Folio 1019 being the Certificate of title to Vomo Island comprising approximately 109 hectares who transferred the island to the Mataqali Sabutoyatoya of Yasawa Province for a consideration of 60 pounds. Therefore the Mataqali Sabutoyatoya became the registered proprietor of Vomo Island. Upon the acquisition of Vomo Island by the Mataqali Sabutoyatoya of Yasawa Province, the Plaintiff and his forefathers have used and occupied Vomo Island for farming purposes and for food and sustenance.

04. The plaintiff further stated that, since the purchase of Vomo Island by the Mataqali Sabutoyatoya of the Province of Yasawa, the 1^st Defendant and his predecessors claimed ownership to Vomo Island through custom and tradition of the Defendant and also claimed to the financial benefits of the leasing of Vomo Island. The plaintiff claims that, the 2^nd Defendant too treated Vomo Island as Native land and has administered the island pursuant to section 4 of the Native Land Trust Act. Accordingly, the 2^nd Defendant issued leases over Vomo Island and authorized the carrying out of developments on the island. However, the Plaintiff claims that Vomo Island since 1899 been a freehold land with a certificate of title governed and administered under the principles of the Torrens Systems of title registration. Therefore, the plaintiff seeks the following reliefs from the court;

1. A Declaration that the Mataqali Sabutoyatoya of Yasawa is the registered proprietor of Certificate of Title Volume 12 Folio 1019 being the Certificate of Title to Vomo Island comprising 109 hectares.
   
2. A Declaration that the Mataqali Sabutoyatoya of Yasawa is one and the same as the Yavusa Sabutoyatoya of Wayasewa in Yasawa.
   
3. That the Yavusa Sabutoyatoya of Wayasewa in Yasawa is entitled to a vesting order pursuant to section 78 of the Land Transfer Act that Certificate of Title of Title Volume 12 Folio 1019 being the Certificate of Title to Vomo island comprising 109 hectares.
   
4. A Declaration that the Yavusa Sabutoyatoya of Viseisei Vuda represented by the 1^st Defendant is not the registered proprietor of Certificate of Title Volume 12 Folio 1019 being the Certificate of Title to Vomo island comprising 109 hectatres.
   
5. A declaration that the Yavusa Sabutoyatoya of Viseisei Vuda is not entitled to any monies that arises from the granting of any lease, license or alienation of land on Vomo Island.
   
6. A Declaration that the 2^nd Defendant is not authorized by law to administer Vomo Island as a native land and to issue leases, licenses or alienates land on Vomo Island in any manner or farm.
   
7. A Declaration that all leases and licenses issued or granted by the 2^nd Defendant on Vomo Island to 3^rd parties or any instrument to alienate land or create any tenancy over land on Vomo Island is null and void and of no effect.
   
8. That the 2^nd Defendant provide a Statement of Account to the Plaintiff for all monies that it has received from:
   

• (i) The granting of any lease or license to 3^rd arties of land on Vomo Island
• (ii) The granting of any instrument to 3^rd parties to alienate land or the creation of any tenancies over land on Vomo Island.
  

9. An order for costs.
   
10. Any other relief that this honourable court may deem just.
    

05. The argument of the first defendant, in support of his summons before me, is based on the doctrine of Res Judicata and estoppel. To support his argument, the first defendant stated that, the father of the plaintiff brought the case Naulivou &v Native Land Trust Board [2003] FJHC 341; HBC0069.1994L, decided on 12 November 2003 in the same capacity as the pt plaintiff did in the instant case. The counsel for the first defendant in fact cited the the decisions of High Court, Court of Appeal and the Supreme Court and argued that, the matter had already been adjudged and the plaintiff is estopped from bringing this action again. It would be prudent to consider the doctrine of res judicata before analyzing the submissions of both counsels and the plaintiff’s claim.

Res Judicata
06. The term Res Judicata is Latin term which means “a matter adjudged”; “a thing judicially acted upon or decided”; “a matter or a thing settled by judgment” etc. The full Latin maxim reads as “Res judicata pro veritate accipitur” which means ‘a thing adjudged&#ust b0;#160;taken for&#160 truth7; and over a period oiod of time it shrunk to mere “Res Judicata”. This doctrine is based on two Latin maxims. The first one is “Nemo bebet big vexam pro una et eadem causa&;&#16 it means that &#at “8220;No one ought to be twice vexed for one and the same cause”. The second one is “Interest rei publicae ut sit finis litium,” and it means that &;it is for common good thad that there be an end to litigation”. The effect of this doctrine is that, it estopps a party from later controverting any issue or question that had already becided by a court and also also prevents a party from obtaining same relief for the second time from the same party. A passage considered being the best known or most authoritative on this doctrine is found in the judgment of Sir James Wigram VC in Hsen vdersen (sen (1843) Ha3) Hare 100. It was held at page 115 alows;/pb>