IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION 

JUDICIAL REVIEW No. HBJ 3/2018

BETWEEN		: 	RATU LIVAI DERENALAGI Nawaka Village, Nadi, Retired
									APPLICANT

AND			:	ITAUKEI LANDS APPEALS TRIBUNAL constituted under s.7 
iTaukei Lands Act 1905
									FIRST RESPONDENT

AND 		:	ITAUKEI LANDS & FISHERIES COMMISSION constituted 
under s.4 ITaukei Lands Act 1905
SECOND RESPONDENT

AND			:	THE ATTORNEY GENERAL of FIJI
THIRD RESPONDENT

AND			:	RATU ESAELI DRIU BORABORA of Nawaka Village, Nadi
					FOURTH RESPONDENT

Appearance		:	Mr Nacolawa for the Applicant
Mr Mainavolau for the First, Second & Third Respondents
Fourth Respondent not present or represented

Date of Hearing	:	15 September 2020

Date of Judgment	: 	15 February 2021

DECISION

1.	Pursuant to leave granted in my decision dated 4 March 2020 the applicant Ratu Livai Derenalagi applied (by summons dated 17 March 2020) for judicial review of the following decisions (in chronological order):

i.	A decision of the second respondent, the iTaukei Lands & Fisheries Commission (the Commission) dated 18 July 2017 to confirm the fourth respondent Ratu Esaeli Driu Borabora as Tui Nawaka.
ii.	The decision of the ITaukei Lands Appeal Tribunal (the Tribunal) dated 11 January 2018 deciding and dismissing the applicants appeal against the decision referred to in paragraph (i) above, and confirming the appointment of Ratu Borabora as Tui Nawaka.

2.	The application is supported by:

i.	An affidavit by the applicant dated 17 April 2018 (in support of the application for leave) annexing copies in iTaukei of the decisions complained of and setting out the lengthy background to the dispute.
ii.	An affidavit by the applicant dated 20 June 2018 in reply to the affidavit filed on behalf of the respondents (see below).
iii.	 An affidavit by Navin Kumar (a legal executive in the office of the applicant’s solicitor) dated 28 February 2019 annexing English language translations of the decisions and correspondence annexed to the affidavit of the applicant referred to in (i) above.
iv.	An affidavit by the applicant dated 24 July 2020 in support of the application for judicial review.
v.	An affidavit by the applicant dated 19 October 2020 in response to the affidavit referred to in paragraph 3(iii) below.  

3.	The application is opposed by the first, second and third respondents who have filed:

i.	an affidavit dated 31 May 2018 by Anasa Tawake, as secretary of the Tribunal.
ii.	an affidavit dated 3 September 2020 by Anasa Tawake, in reply to the applicant’s affidavit of 24 July.
iii.	an affidavit dated 1 October 2020 (filed after the hearing with leave) by Kelevi Curuki explaining the procedures of the Commission in deciding a contested confirmation of a customary title. 

4.	In my decision of 4 March granting leave to apply I commented about the failure of the fourth respondent, Ratu Borabora (the so far successful contender for the role of Tui Nawaka) to take an active part in the proceedings.  In spite of my comments, Ratu Borabora has maintained his silence and refusal to take part in the proceedings.  Given this he will hardly be surprised by the outcome. 

Background

5.	The background to this matter is as follows (much of this repeats what is set out in my earlier decision):

(a)	The issue of who is entitled to be appointed as Tui Nawaka has been unresolved since 2013.  The applicant says that the fourth respondent was appointed by an improper process and that he, rather than the fourth respondent is the person who is properly entitled to the appointment.

(b)	 It appears that the Commission first considered the matter, at the request of the applicant, in June 2014.  There was a further meeting/hearing of the Commission in May 2016, and a final hearing on 28/29 June 2017.  The ruling of the Commission was eventually issued in July 2017.  English translations of the proceedings before the Commission in June, and of the Commission’s ruling, have been made available to the Court. 

(c).	There appears to be agreement that the succession for the appointment of the Tui Nawaka is to be determined according to the sibling hierarchy as explained by GV Maxwell, the chairman of the (then) Native Lands Commission in 1913:

The succession to the Chiefly title shall be in accordance with the sibling hierarchy [from eldest to youngest]. If siblings are all deceased, the succession line shall flow from the descendants of the eldest sibling, and so forth. 

But the applicant says that the Commission got things wrong by concluding (contrary to the applicant’s evidence and argument) that the eldest sibling bloodline lies with the family of Nalagi (which is the fourth respondent’s family), rather than the family of Koroba (the applicant’s family). 

(d)	On 23 March 2017 the Commission sent to the fourth respondent a letter that confirms Ratu Borabora’s appointment to the position in the following terms (the translation provided by counsel for the applicant).  The letter is addressed to ‘Esaeli Borabora’: 

CONFIRMATION OF THE CHIEFLY TITLE OF TUI NAWAKA
Ni Sa Bula
I am now writing to you that you have been confirmed in the Chiefly post of Tui Nawaka (VKA No 192/148 in the Vanua of Nawaka).
You are now the head of the Vanua and with it comes the various responsibilities. You are tasked to lead them in exemplary ways that will promote love and respect in their daily lives. You are to promote their protection and safety and not the life full of conflicts and dissensions. 
You are being called by God to lead your Vanua in the best possible way you can.
t will greatly help if you can lead a humble life of faith in God who will always lead and guide you in all your time of leadership. 
The Government gives its best wishes to you and in your role as Tui Nawaka. 
Yours faithfully 

The letter is signed by Mr I.V Vesikula, Chairman of the iTaukei Lands & Fisheries Commission. 

(e)	The applicant argues that the decision evidenced in this letter of March 2017 makes a nonsense of the hearing conducted 3 months later in June, and the decision of the Commission issued in July.  Counsel for the applicant suggests that in light of this letter the subsequent processes of the Commission were merely a charade, and that the Commission had already made up its mind to appoint the applicant to the position of Tui Nawaka, without first giving the applicant the opportunity to be heard and present his case. 

(f)	In April 2017, after becoming aware of the Commission’s letter of 23 March 2017, the applicant appealed to the Tribunal against what he understood to be the decision of the Commission contained in that letter. 

(g)	Because the defendants had not had the opportunity to reply to the late and irregular admission of the letter of 23 March 2017 (see my earlier decision), I allowed them, following the hearing of the application, to file a supplementary affidavit explaining the process the Commission followed in making a decision on the applicant’s claim to be the rightful Tui Nawaka.  It appears from the affidavit of Mr Curuki (see paragraph 3(iii) above) that the Commission has a standard operating procedure that it follows when confirming an appointment.  This procedure consists of the following steps:

1.	The Roko Tui will recommend to the Chairman of the Commission in writing the support of the landowning unit of the person they have elected to hold the position.
2.	The respective officers of the Vanua Section of the Commission will verify all supporting documents and compile submissions. 
3.	Officers of the Commission ensure that the following letters/documents are attached:
c.	confirmation of Turaga ni Vanua or Tui:
	i.	Letter from members of the mataqali.
ii.	Letters from the rest of the Turaga ni Mataqali or a representative within the Yavusa.
iii.	Letters from all the Turaga ni Yavusa or a representative within the Vanua. 
4.	The Chairman will assess the submission and may approve the confirmation for a customary title. 
5.	Roko Tui will be notified for the need of more justifications
6.	A confirmation letter shall be issued to the title holder as per the Chairman’s approval. 
7.	The Roko Tui shall be notified accordingly in writing.
8.	The confirmation shall be registered in the Vola ni Kawa (VKB) accordingly. 

(h)	The standard operating procedure for the Commission where there is a dispute about an appointment to a customary title states:

A dispute may be registered before a person is confirmed or registered to a customary title, OR After a person is confirmed or registered to a customary title. 
1.	In the event of registering any dispute, the Roko Tui informs the Commission in writing that a customary title is being disputed and cannot be solved traditionally by the Vanua.
2.	The Chairman shall instruct to proceed with the registration process.
3.	A 30 days’ Notice for the commencement of the Commission of Inquiry is prepared for Chairman’s endorsement to be published in the Fiji Ryal Gazette and the newspapers. 
4.	A Gazette Notice contains;
•	Nature of Dispute
•	Venue
•	Date
•	Time
5.	A dispute will be registered once the Notice is published in the Fiji Royal Gazette. 
	
And the procedure for the Commission of Inquiry says:

COMMISSION OF INQUIRY
1.	The Commission of Inquiry will commence on the date set out in the Gazette Notice.
2.	The parties to the dispute to give their sworn statement with evidence under oath with evidence.
3.	Witnesses may be called to give sworn statement under oath.
4.	The Chairman of the Inquiry may grant an adjournment to await these witnesses if not present.
5.	All sworn evidence given during the Commission of Inquiry should be recorded in the Evidence Book for Disputes.
6.	If the Chairman or the Commission of Inquiry is satisfied with the enquiry he will adjourn the hearing and announce the date for the decision.
7.	The Commission of Inquiry shall deliver their Judgement accordingly.
8.	Parties shall be informed of the right to appeal.
9.	If the decision is not appealed within the 90 day period then a confirmation letter shall be issued.

(i)	It appears that in accordance with these standard procedures, when a dispute arises – as it did here - before a person is confirmed to the customary title, the Commission nevertheless completes the ‘confirmation’ process, before then commencing the ‘dispute’ (Commission of Inquiry) process.  That is what apparently happened in this case, with the letter of 23 March 2017 confirming the appointment of the fourth respondent being the final step in the confirmation process before the Commission began the dispute process. 

(j)	The dispute process followed by the Commision in this case led to a dispute hearing on the 28/29th June 2017 when the Commissioners went to Nawaka village to hear evidence from the competing applicants for the title, the applicant and the fourth respondent.  A decision of the Commission was issued on 18 July 2017, in which the Commission confirmed the appointment of the fourth respondent to the position. 

(k)	Once the Commission had issued its decision in July 2017, and the applicant had made it clear he was still unhappy with it, the Tribunal was apparently willing to treat the applicant’s April appeal as applicable to the July decision, and there has been no challenge to that approach.

(l)	the Tribunal decided to hear the applicant’s appeal on 4 & 5 January 2018 at the Nawaka Community Hall.  Notices to this effect were published in the Fiji Gazette on 1 December 2017, and broadcast on the radio via the Ministry of iTaukei programme ‘Na Lalakai” on 31 December 2017 (the form of the radio broadcast was not disclosed).  However, it seems no-one told the applicant of the hearing, and he did not hear about it until the morning of 4 January when he was approached by the Nawaka District Representative and told that the Tribunal would be hearing his appeal at 10.00am that morning.  There is no evidence to contradict what the applicant says about not receiving notice of the hearing of his appeal until the morning the hearing was to commence.  In his affidavit of 31 May 2018 the secretary of the Tribunal Anasa Tawake does not say that a notice of the January hearing was sent or delivered to the applicant personally.  Instead Mr Tawake appears to be suggesting that the advice contained in the Commission’s decision of 18 July 2017 that the applicant had 90 days to appeal and prepare for said hearing was by itself sufficient notice of the hearing date.  This is simply unsustainable. 

(m)	The applicant immediately went to the Tribunal, to find it ready and anxious to hear his appeal.  The applicant asked for an adjournment on the basis that he had not been aware of the hearing, and not been able to tell his lawyer of the hearing, and was not ready to proceed.   He asked for an adjournment of two weeks to enable him to prepare for the appeal hearing.  The transcript of the discussion before the Tribunal about this request suggests that the Tribunal thought that the applicant and his lawyer should have been in a state of constant preparedness for the hearing, ready to appear to argue the appeal at a moment’s notice.   Instead of allowing two weeks as requested, the Tribunal adjourned the hearing until the following day.

(n)	On 5 January the Tribunal convened again.  Again the applicant was in attendance, and again sought an adjournment.  He had in the interim sought advice from his lawyer (who was not able to attend at such short notice), who had told him he should decline to give evidence or present submissions in support of his appeal.  The transcript shows the following comments by the Tribunal Chairman:

I believe that I have made myself clear yesterday and again today that there shall be no adjournment.  From the time when the Commission delivered their decision, within 90 days, you have challenged their decision to give Ratu Asaeli the position.  From that time you should prepare yourself properly. 
		and:
Well we shall cut it short, we shall cut it short, if your lawyer not come and give evidence we shall close your case.  We shall then give our ruling. That is alright with you. We are just following our procedures. If your lawyer had advised you not to come and give evidence, your case shall end there.  It simply means you do not tender any evidence in your appeal.  You have no case to appeal against the decision of the Commission where they gave the position to Ratu Asaeli.  

(o)	Accordingly the Tribunal issued its decision on 11 January 2018 as follows:

4.	As Livai Tutuya {the applicant] did not want to give his statement to the Tribunal , the members have decided:
A.	That we confirm the decision of the Commission that was delivered on the 18th July 2017. 
B.	That the head of the Nalagi clan, Noi Vunatoto Tribe and chief of Nawaka, be Esaeli Borabora (VKB 172/148)
C.	90 days is given to Ratu Livai Tutuya (VKB 112/148) to apply for judicial review to the High Court of Fiji.
D.	The Commission to complete all the documentary after 90 days if there is no challenge to the position.

Application for judicial review

6.	In relation to the decision of the Commission dated 18 July 2017, the alleged basis for review is that the Commission reached its decision to confirm the appointment of the fourth respondent before (rather than after) conducting an inquiry into the matter. This is based on the assertion by the applicant that although the enquiry conducted by the Commission took place in June 2017, the Commission had earlier – by letter dated 23 March 2017 (see paragraph 5(g) above) - given its decision in favour of the fourth respondent.  I take this to be an argument that the Commission was biased, i.e. having already decided the issue of who should be the Tui Nawaka as determined in the Chairman’s letter of 23 March 2017, the Commission was incapable of bringing an independent mind to the inquiry that took place in June, and that led to the July decision that the fourth respondent was the ‘proper’ appointee as Tui Nawaka.  

7.	In relation to the Tribunal the bases for the proposed review are (in summary):
i 	A breach of natural justice by failing to provide sufficient advance notice of the appeal hearing to enable the applicant to have his solicitor attend, or to prepare for the hearing. 
ii.	Allowing only a one-day adjournment to enable the applicant to arrange for representation and to prepare for the hearing of his appeal, which time was insufficient to enable the applicant to prepare for the hearing of the appeal.
iii.	That in making its decision of 11 January 2018 the Tribunal did so without conducting the hearing that it was obliged to conduct on the applicant’s appeal. 

The Law

8.	Section 17(1) of the Itaukei Lands Act 1905 provides:

In the event of any dispute arising between iTaukei as to the headship of any division or subdivision of the people having the customary right to occupy and use any iTaukei 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 … 

9.	So the inquiry and determination by the Commission will need to include:

i.	What is the proper basis for determining the particular headship in issue in that division or subdivision of the people having the customary right in the area in question to occupy and use any iTaukei lands (vanua).  It seems that this may differ between one area and another.  This inquiry may cover (among other things), who are the eligible candidates for selection, who may participate in the deliberations, and what process should be followed (including whether any decision needs to be unanimous). 
ii.	Applying those rules, who is the person properly entitled to 
appointment to that headship. 

10.	A decision of the Commission is open to challenge by appeal to the Tribunal, but of course is also susceptible to judicial review if it is reached unlawfully.  A decision of the Tribunal is not open to challenge except by judicial review.

11.	A decision reached in breach of the principles of natural justice is outside the jurisdiction of the decision-making body, and so is void in exactly the same way as if the body had acted outside its statutory jurisdiction.  In the House of Lords decision in Ridge v Baldwin [1963] 2 All ER 66 Lord Reid said (at page 82):+

… there was considerable argument whether in the result the watch committee's decision is void or merely voidable. Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void and that was expressly decided in Wood v Woad. I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.
	
The breadth and scope of the obligation to give effect to natural justice is touched on in these words from Lord Loreburn Board of Education v Rice [1911] AC 179:

In the present instance … what comes for determination is a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone.  In such cases the Board of Education will have to ascertain the law and also to ascertain the facts.  I need not add that in doing either they must act in good faith and listen carefully to both sides, for that it a duty lying on everyone who decides anything.
	
That refusal of an adjournment, when reasonably requested, may amount to refusal of a fair hearing is established by the decision of a full court in Priddle v Fisher & Sons [1968] 3 All ER 506.  In that case the appellant was prevented by bad weather from attending the hearing of his case, his representative being unable to attend due to ill-health.  The Court was in no doubt that the decision of the Tribunal should be set aside because of its adoption of wrong principles in failing to allow an adjournment.  Although that case was an appeal, rather than an application for judicial review, Lord Parker CJ drew an analogy with certiorari in the following passage:

In my judgment it is clear that the exercise of a judicial discretion on wrong principles does amount to a point of law, and accordingly this court has jurisdiction to deal with the matter without the necessity of a motion of certiorari being preferred.
	
Although the case itself in Priddle was an appeal, the Court obviously took the view that a remedy would also be available via certiorari (or – nowadays – via an application for judicial review). 

12.	Where a breach of natural justice occurs because a decision-maker has not allowed a fair hearing before making a decision it may be possible for the decision-maker to correct that error and give a valid decision by affording the parties a proper opportunity to be heard, even if the original decision is then confirmed.  Strictly speaking it seems that this ‘rehearing’ does not validate the original decision.  Rather the fact that a sufficient rehearing has been conducted may be a factor in the court, in the exercise of its discretion, refusing a remedy for the original bad decision.  See the decision of Cooke J the New Zealand Court of Appeal in Reid v Rowley [1977] 2 NZLR 472, and the discussion of that and other cases by the Privy Council in Calvin v Carr [1980] 2 All ER 440.  While these cases consider whether the exercise of appeal rights ‘cures’ the failure to observe natural justice in coming to in the original decision, the thinking also seems applicable to those cases where the decision-maker, having made a decision in breach of natural justice, then revisits that decision in a manner that remedies any previous defects.  But as the Privy Council made clear in Calvin v Carr (supra), whether the ‘cure’ is effective or sufficient depends on the case:  

Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or rehearings will not be sufficient to produce a just result. Many rules (including those now in question) anticipate that such a situation may arise by giving power to remit for a new hearing. There may also be cases when the appeal process is itself less than perfect; it may be vitiated by the same defect as the original proceedings, or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it had the means to make a fair and full inquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision. These are all matters (and no doubt there are others) which the court must consider.

Analysis

13.	As I have noted, Ratu Derenalagi’s application for review relates to the decisions of both the Commission and the Tribunal.  The complaint about the Commission’s decision is that it was reached in March 2017, before Ratu Derenalagi had an opportunity to present his case to the Commission.  In light of the evidence now given about the Commission procedure (see paragraph 5(g) & (h) above) for confirmation of an appointment, and resolving a dispute as to appointment, the understanding that I expressed in my previous decision needs to be examined further.  Instead of the decision to appoint the fourth respondent being obviously made without consideration of the plaintiff’s case, the situation is more complex.  The Commission’s position is that the decision notified to the fourth respondent in the letter of 23 March 2017 was merely the result of following its normal confirmation process, and did not in any way impinge on its ability to look with fresh eyes at the plaintiff’s claim to be the rightful Tui Nawaka when it came to the hearing on the 28 and 29 June 2017 at the Nawaka Community Hall.  

14.	I am not convinced that in a situation such as applied here, where it was well known from an early stage of the process of appointment that the plaintiff was claiming to be the rightful Tui Nawaka, it is wise to continue to conduct an appointment process following the standard procedure outlined in paragraph 5(g) above.  Paragraphs 4-8 of the process are as follows: 

4.	The Chairman will assess the submission and may approve the confirmation for a customary title. 
5.	Roko Tui will be notified for the need of more justifications
6.	A confirmation letter shall be issued to the title holder as per the Chairman’s approval. 
7.	The Roko Tui shall be notified accordingly in writing.
8.	The confirmation shall be registered in the Vola ni Kawa (VKB) accordingly.

I appreciate that the confirmation procedure may occur in circumstances where the Commission has no knowledge, until after the decision is made, that the appointment is contentious.  In that situation it has no option but to follow its procedures, and cannot be criticised for doing so.  But where the appointment is known to be contested, proceeding to make and notify a decision is likely to be misunderstood, as happened here.  Having issued its decision making the appointment of Ratu Borabora, any subsequent actions and decisions of the Commission were always likely to be viewed with suspicion by any rivals for the role.  It might have been better, in this situation, for the Commission to abandon the confirmation process and move straight to the dispute process described in paragraph 5(h) above. 

15.	Nevertheless, while the notification in March 2017 of Ratu Borabora’s appointment led to an unfortunate misunderstanding, and the suspicion on the plaintiff’s part that the Commission had predetermined the issue, it is clear I think that the hearing conducted by the Commission in June gave Ratu Derenalagi the opportunity he was entitled to to present his case for appointment.  A review of the transcript (38 pages) of that two- day hearing, and of the Commission’s decision of 18 July 2017 gives no indication that the four members of the Commission had a closed mind on the issue.  The plaintiff and his supporters/witnesses gave evidence, were questioned by the Commission members, and had the chance to ask questions of other witnesses and to argue their case.  In its decision that followed the hearing the Commission has reviewed the evidence and arguments, and reached a conclusion that (although it is not for me to say whether it is right or not) appears to be coherent and logical.  Apart from the appearance of pre-determination arising from the letter of appointment from the Commission to Ratu Borabora in March no submissions were addressed to me about the conduct of the hearing, or defects in the decision that might justify setting the decision aside on judicial review - as opposed to appeal - grounds.  

16.	I therefore decline the plaintiff’s application for judicial review of the ITaukei Lands and Fisheries Commission decisions of 23 March 2017 and 18 July 2017. 

17.	With regard to the decisions of the Appeals Tribunal in January 2018 the position is different.  In those decisions the Tribunal declined the plaintiff’s application for adjournment and, because of the plaintiff’s unwillingness or inability to present his case, dismissed his appeal.  In coming to its decision to refuse the plaintiff’s application for a meaningful adjournment (granting an adjournment of one day did not adequately address the plaintiff’s problem) it seems from the record that there was some discussion about whether the plaintiff had been given prior notice of the hearing scheduled for 4 January.  Some evidence was given by the Roko Tui Ba to the Tribunal (and has been given in this court on behalf of the Tribunal) about a letter delivered at some unspecified date to the plaintiff, although it seemed that the letter was merely a general advice that the Tribunal would visit Nawaka for the hearing of the appeal at some unspecified date in the future, and outlining what the plaintiff would need to do in support of his appeal.  But none of this evidence (a copy of the letter has not been put in evidence, nor is there any evidence about whether, and if so when, and by whom this letter was actually given to the plaintiff) was sufficiently clear to cast doubt on the evidence of the plaintiff that he only found out about the hearing on the morning that the hearing was scheduled to begin when he fortuitously encountered someone who asked if he was going to attend the hearing.  He had engaged a solicitor, but the solicitor – unsurprisingly - could not attend at such short notice.  I do not accept that allowing an adjournment of one day, and then expecting the appellant to proceed without a solicitor gives him a fair opportunity to present his case.  I can appreciate that the Tribunal would have been frustrated by the situation it was presented with, but there is no evidence that the plaintiff was responsible for it.  I certainly do not accept – in the absence of evidence to show that this is a commonplace and generally understood and accepted method of giving notice of a hearing- that advertisement on the radio or publication in the Gazette is sufficient notice to the plaintiff of the hearing date.  Again, there is no evidence from the respondents about what exactly any such advertisements said, or when and where they were published.  Public service radio and newspaper/Gazette publication are means of notifying the wider public of an upcoming event, so that parties who may be interested have the opportunity to lodge objection, or to attend a hearing.  They are not an effective means of notifying a particular person of something that is important to him/her.  There is a suggestion in the submissions of counsel for the defendants that the plaintiff should have been in a state of constant readiness, able to appear with his solicitor at a moment’s notice at any time after the appeal was lodged.  This is quite unrealistic, particularly at the time of year that this hearing occurred, when the courts and most of the legal profession are likely to have been on holiday.  If that was the expectation of the Tribunal it should have been spelled out very clearly to the plaintiff at the start of the process.  

18.	Because he did not get sufficient notice of the hearing of his appeal, and because his application for an adjournment was refused, the plaintiff did not have a fair opportunity to present his case, and the decision that the Tribunal gave on his appeal is null and void for breach of the principles of natural justice.  I make a declaration to that effect and order the iTaukei Lands Appeals Tribunal to rehear the plaintiff’s appeal against the decision of the iTaukei Lands & Fisheries Commission to confirm the appointment of Ratu Esaeli Driu Borabora as the Tui Nawaka. 

19.	The first, second and third respondents are collectively ordered to pay costs of $2,000 to the plaintiff for the costs of this application and the application for leave to apply for review. 

Orders

20.	I therefore make the following orders:

i.	The application for review of the decisions of the iTaukei Land & Fisheries Commission dated 23 March 2017 and 18 July 2017 is dismissed.
ii.	The decision of the iTaukei Lands Appeals Tribunal dated 11 January 2018 dismissing the plaintiff’s appeal against the decisions referred to in (i) above is quashed, and the Tribunal is directed to rehear the plaintiff’s appeal against those decisions. 
iii.	The first, second and third respondents are ordered to pay costs of $2,000.00 to the plaintiff for this matter (including the application for leave to apply for review). 

__________
A.G. Stuart
Judge

At Lautoka
Dated this 15th day of February, 2021

SOLICITORS:
Nacolawa & Co. – for the Plaintiff
Attorney General’s Office – for the Defendant