[1992] 38 FLR 25

TOKYO CORPORATION

Civil Jurisdiction

v

MAGO ISLAND ESTATE LIMITED & JAMES BORRON

Jayaratne J

24 February 1992

Land- State land-foreshore- whether island foreshores privately owned- State (Crown) and Act (Cap 130) Sections 2, 20, 23 (1), 23 (2) & 33.

The Plaintiff bought a freehold island but following completion the Defendant vendors claimed not to have sold the foreshore. The High Court HELD: absent evidence to the contrary foreshores are public lands the title to which is vested in the State.

Cases cited:

A.G. v Richards (1795) 2 Australia 603
Philpat v Bath (1905) 21 TLR 634

Action for declaratory judgment in the High Court.

Q. Bale for Plaintiff
K. Bulewa for Defendants

Jayaratne J:

This is an action filed by the Tokyu Corporation on 6.4.1987 against Mago Island Estate Limited the first defendant and James Borron the 2nd Defendant by way of Originating Summons seeking a Declaration that the Defendants have no proprietary rights over the foreshore of Mago Island or over the waters and reefs surrounding it. The plaintiff also seeks a restraining order against the Defendants from denying access to the principal wharf with an order for the removal of the obstruction of a fence to such access. The plaintiff will hereinafter be referred to as the Corporation and the first Defendant as MIEL.

The Corporation also has filed an Inter Partes Summons seeking an interim Injunction restraining the defendant from denying access to the wharf and also for an order for the removal of the obstruction. The affidavit accompanying these summons reveals that the Corporation has purchased the island comprised in Certificate of Title 5330 in or about the month of October, 1985; the vendor was the first Defendant; the 2nd Defendant is the Managing Director of the 1st Defendant MIEL; by the said purchase the Corporation became entitled to the exclusive possession of the island; the 2nd Defendant took steps to bar the Corporation from having access to the wharf by erecting a fence. The order for an Interim Injunction was granted as sought on the 10th of April and is in operation even to date.

Borron in his affidavit dated 30.4.1987 apparently in reply to that of the Corporation has deposed that he or his company MIEL is the owner of the reef, fishing- rights and the foreshore. He supports the deposition with a letter JARI from the Native Lands and Fisheries Commission. He has further deposed that the Corporation has completed the construction of the wharf.

Hideo Jajima has filed two affidavits as the Assistant General Manager of the Overseas Development Department of the Corporation in the registry on the 8.5.87. Taking the first one which is in direct reply to that of Borron and the document JARI, he has deposed that the 2nd Defendant never owned Mago Island or any part of the reef and fishing rights or the foreshore; the jurisdiction of the Native Fisheries Commission was to determine the native Customary fishing rights under the Fisheries Act Cap 158 and the regulations made there under; the opinion tendered in JARI is ultra vires the claim presented to the Fisheries Commission for the determination; the English translation of the Commission's ruling is a misrepresentation of the official ruling; the ownership of all reefs, foreshore and the soil under the sea is vested in the Crown since the Deed of Cession on 10th October, 1874.

In a more elaborate affidavit the same deponent has deposed that the Corporation purchased the island of Mago Island for $US6,000,000 along with the islets D surrounding the said island; after the sale, the 2nd Defendant was given time for a period of 6 months to remove his personal possessions; subsequently he started asserting ownership to the reef and the foreshore for himself and MIEL; historical background to the previous ownership does not support the contention of the 2nd Defendant; in any event the Crown is the prima facie owner of the foreshore.

Borron in his affidavit dated 14 day of September 1987, has deposed that Thomas Kirk Ryder retained ownership to the soil under the sea, fisheries, reefs and foreshore and therefore the ownership in the above properties devolved on the 1 st Defendant; the 1 st Defendant MIEL did not sell those interests to the plaintiff.

On the day of hearing of the Originating Summons, Mr. Bale representing the plaintiff moved court to call oral evidence to support his affidavits. Mr. K. Bulewa had no objection. Mr. Bale called Ilaitia Caginavanua. He said in his evidence that he is the acting Chairman of both Native Lands Commission as well as Native Fisheries Commission established under the two different Acts; he was assigned to consider the registration of the Native Customary Fishing Rights; he knew about the fishing rights around Mago Island; he was familiar with the procedure of the Fisheries; he has the evidence led at the Commission; it had a decision (P1). He further said that they do not decide the proprietary rights of the foreshore - only the fishing rights. In answer to cross examination by Mr. Bulewa he said fishing rights were sold in 1863 to non Fijians; there was no repetition of it again; the only claimants were from Namalata fishing rights do not belong to the Crown; Tokyu Corporation cannot have any fishing rights; they can be owned only by native Fijians. The next witness was Vatiliai Navunisaravi - Minister of Fijian Affairs. He said in his evidence that he was employed in the Native Land Commission and the Native Fisheries Commission in April 1980; retired in 1987; he later became the Chairman Native Land Commission; in 1986 he had to consider fishing rights on Mago Island and a decision was reached; Decision P 1; he recognised the decision he gave; he said that proprietary rights and fishing rights are two concepts; Native Fisheries Commissions is only concerned with fishing rights; it has nothing to do with ownership; the government owns the fishing rights; all the foreshores are enjoyed by indigenous Fijians; he could recall what happened in 1986; he had to consider the principal issue whether Namalata people had the right to use the fishing rights in Mago Island; that they lost their fishing rights prior to cession and they were settled elsewhere; they were given alternative land and fishing grounds:, he did not go into the issue whether or not Borron owned the fishing rights - not a part of his decision; it was a separate issue. Letter written by Vari was referred to. He said he doubted that he said what was contained in the letter; Vari was the Assistant Commissioner in the Native Lands Commission; he did not authorise the last line in the letter; competing rights of Borron and Namalata people were decided; Vari's letter relates to usage rights; fishing rights are now enjoyed by Borron; his decision vested on usage rights and not on ownership. In answer to re-examination he said there was only the claim of Namalata - there was no competing claim. With this witness he closed his case. Mr. Bulewa did wish to call any oral evidence.

On 14th of May 1991 an agreement was reached between Mr. Bale and Mr. Bulewa to confine themselves to Clause 3 of the main Prayer of Originating Summons and leave out the evidence on fishing rights. Both parties did not desire a decision on the fishing rights. Mr. Bale submitted his written submissions. Mr. Bulewa had not done so. When reminded of it he sought from me a few more days to do so which I readily granted. He had not still tendered his. Considering the time frame within which I have to conclude the pending work, I am unable to wait for Mr. Bulewa's written submissions. I decided to proceed with the Judgment.

I have already touched upon the oral evidence led in the case which will sense me much less than I expected as the determination on fishing rights is no longer in issue. Nevertheless, the evidence so led will be considered in regard to other aspects if they are relevant. I shall now consider the points highlighted by Mr. G Bale in his written submissions. He has submitted that Mago Island situated in Lau Group is largely undeveloped comprising a land area of 5411 acres; the Corporation entered into sale and purchase Agreement with MIEL for a sum of 6 million US dollars on 11th September 1985 to purchase it, He refers me to Clauses 1 and 2 (b) and 5 of the agreement.

Clause:

1. The vendor will sell and the Purchaser will purchase all that freehold island known as Mago Island situated in the Lau Group of islands in Fiji, which island is contained and described in Certificate of Title 5330 (hereinafter called 'the property') together with the buildings, stock and chattels as listed on the inventory annexed hereto and thereon marked 'A'-

2(b) - By payment of the balance of US$5,400,000.00 (Five Million Four Hundred Thousand United States Dollars) on or before the seventh day after the written consent of the Minister of Lands under the Land Sales Act to the purchase is received or the 7th day of October, 1985 whichever shall be the later (hereinafter called "the date for completion"), such payment to be made to the Vendor in Fiji or in such other country as the parties may agree, at which time the Vendor will comply with his obligations under Clauses 5 and 6 hereof,

5 Vacant possession of the property shall be delivered by the Vendor to the Purchaser on the date for completion PROVIDED that Mr. James A.R. Borron the Managing Director of the Vendor together with such workmen as are required shall be allowed to visit and stay on the property for D a period of up six months from the date for completion for the purpose of packing and removing all Mr. Borron's personal effects presently on the property and for the purpose of finalising all his personal and business matters relating to the property;

Mr. Bale has further submitted that MIEL through the second defendant had asserted that they had sold only the dry land down to the high water mark and they had even put up a residential holiday house on what they claimed as foreshore property on the assumption that they were the legal owners; this assertion on the part of the second Defendant led to this action. Mr. Bale's chronological synthesis is in line with what is recorded in the court file and I have already alluded to them on the very important steps taken.

Mr. Bale has stated in his written submissions, tracing the historical background, that Maafu made a request of Tui Cakau that a tribe come and live in Vanuabalavu as his people to which he agreed. Consequently the inhabitants of Mago Island went over to Maafu. He has further submitted that at about this time a foreigner William Hennings had offered to buy this island. Tui Cakau, Ratu Golea sold the island to Hennings free of the native inhabitants; the inhabitants settled down in Namalata village; they lived in their new land enjoying customary fishing rights; Hennings sold and transferred it to Thomas Kirk Ryder; as was recommended by the Lands Commission appointed after the cession of Fiji to Great Britain, he obtained a Crown Grant to the island. It passed through a few other hands and ultimately James Samons Kidston Braddock Borron sold and transferred it to MIEL. The last land transaction was between MIEL and the Corporation. Mr. Bale's argument as stated in the written submissions is that there was never a doubt that all that was being conveyed and transferred were the whole of the island of Mago about higher water mark and the islets within the reefs which surrounded the island. He further agrees that recital in the conveyance was consistent with the English Law that the land in the foreshore up to the high water mark is vested in the State (then the Crown). He refers me to Clause 1 of the Deed of Cession of Fiji in October 1874. It reads thus:

"..... the possession of and sovereignty over the waters adjacent there to and of and on all ports, harbours, havens, roadsteads, rivers, estuaries and other waters and all reefs and foreshores within or adjacent thereto".

He has submitted that Hennings had transferred to Ryder rights which he never got from Tui Cakau such as creeks, rivers, waters, ores, minerals etc. He has further submitted that the title was superseded by the Deed of Cession. He also referred me to Section 2 and 33 of the Crown Lands Act Cap. 130 which reads as follows:

Section 2:

"all public lands in Fiji, including foreshores and soil under the waters of Fiji, which are for the time being subject to the control of Her Majesty by virtue of any treaty, cession or agreement and all lands have been or may be hereafter acquired by or on behalf of Her Majesty for any public purpose."

Section 33:

"No action or other remedy by or on behalf of the Crown for the recovery of the possession of Crown Land shall be barred or affected by any Act or other Law of limitation"

I shall refer to these sections with my comments as I progress in the Judgment. Mr. Bale has submitted that Ilaitia Caginavanua Acting Chairman of the Native Fisheries Commission testified strongly that fishing rights to fish in the foreshore area are not proprietary rights; they are customary rights and therefore there cannot be any claim to any proprietary rights of the foreshore below high water mark. Mr. Bale further submitted that the next witness Vatiliai Navunisaravi the former Chairman of the Native Fisheries Commission, now the Minister for Fijian Affairs confirmed the conceptual issue spoken to by the previous witness; that the inhabitants of Mago Island in their claim for fishing rights around the island lost their claim as Tui Cakau had transferred them to Hennings at the time of the sale of the island. He further submitted that no opinion was even expressed on the letter of the clerk dated 1.4.1986:

"that all rights as contained in the original conveyance as the ownership of the reefs and fisheries over Mago waters still remain the property of Mr. J. Borron."

Mr. Bale has further submitted the MIEL had put up structures and fences on the land above the high water mark which is trespass and also structures on the foreshore below high water mark which is unlawful as it belongs to the State. He has said that the land below the high water mark is the property of the State supported by Philpat v Bath (1905) 21 TLR 634 at 636 and A. G. v Richards (1795) 2 Australia 603. He is seeking a declaration that the Defendants have no proprietary rights over the foreshores of Mago Island or over the waters and reefs surrounding the island and also and order that the Defendants cause to be removed from the foreshores all the structures, chattels and property.

Borron in his affidavit of 14.9.1987 has deposed that MIEL was the owner of C the land contained in Certificate of Title 5330; the plaintiff purchased it on 21.10.1985; Kirk Ryder retained ownership to the soil under the sea, fisheries, the reef and the foreshore; that ownership of these interests devolved on subsequent purchasers and ultimately vested in first Defendant; the first defendant did not tell these interests to the plaintiff.

All these foregoing pages in this Judgment so far dealt with history of the island, the change of ownership at various stages, pleadings, evidence both oral and affidavit, and the written submissions. Now it is my task to evaluate and assess the evidence to resolve the issues now narrowed down only to the proprietary rights to the foreshore below the high water mark.

Undoubtedly Mago Island by virtue of the sale erected on 21.10.1985 is now the property of the plaintiff. It is admitted by the MIEL of which the 2nd Defendant is the Managing Director that they put up fences and structures on the foreshore below the high water mark. MIEL's argument is that these: rights in the foreshore below the light water mark along with the reefs and the waters never went to the State or remained with the state at any time. Instead they state that the rights in these interests simply went on passing from one purchaser to the other on the various deeds of conveyance, It may be so. When William Hennings transferred the island to Thomas Kirk Ryder, he purported to transfer by the deed of conveyance the island with all the creeks, rivers, waters, ores, minerals and woods, all bays and harbours and anchorages. But, Tui Cakau had not given such a title to him (Hennings). If Hennings had not been given such title to the island, he could not have given it to Ryder. As the legal concept goes a person cannot give a better title than what he has. The Deed of Cession of Fiji in October 1874 is of special significance throwing light as to the ownership of the foreshore. The Deed of Cession of Fiji in no unmistakable terms surrendered to Queen Victoria the whole of the Fiji Islands particularly the possession and sovereignty over the waters adjacent thereto and of and over all ports, harbours, havens, roadsteads, rivers estuaries and other waters and all reefs and foreshores within or adjacent thereto.

After the Cession, under the Lands Commission appointed for the purpose of investigating the claims of those of European descent, Thomas Kirk Ryder too lodged his claim to obtain legal validity to his title. He was in fact issued a Crown Grant for his possession. However he failed to obtain a Crown Grant for the whole island of Mago with all rights of fisheries and all rocks and islets. What was certified in the Crown Grant was the land of the Mago Island above the high water mark. Even if there was a title conveyed to Ryder by Hennings over all the creeks, water bays etc., such a title could not have outlived the Deed of Cession. This theory of vesting the foreshore into Crown up to the high water mark is consistent with the English law.

This position of the placement of the foreshore in the hands of the Crown by the Deed of Cession has led to its statutory recognition. Sections 2, 20, 23 & 33 of the Crown Lands Act Cap. 132 depict the position in clear terms.

Section 2 - (Interpretation Section) -

"Crown Land" means all public land in Fiji, including foreshores and the soil under the waters of Fiji, which are for the time being subject to the control of Her Majesty by virtue of any treaty, cession or agreement and all land which have been or may be bought acquired by or on behalf of Her Majesty for any public purpose.

Section20 - A grant or lease under this Act shall not, unless otherwise expressly provided therein, confer any right to the foreshore or the soil under the waters of Fiji.

Section 23 (1) - If any foreshore land or land to the seaward of any such land embanked or reclaimed under a lease made under the provisions of the Act ........ no person or body shall, by virtue of any title to any land which he or it was empowered to retain a foreshore have any estate, right or interest in or to the land so raised in height or reclaimed by reason that such raising or reclamation has been gradual and imperceptible ........ aforesaid.

Section 23(2) - The right title of such lands so raised and reclaimed shall continue vested in the Crown as if the same had continued subject to the flow and reflow of the ordinary tides. Section 33 - No action or other remedy by or on behalf of the Crown for the recovery of the possession of Crown land shall be barred or affected by any Act or other land of limitation.

Statutorily and analogically there are other statutes such as the Wrecks and Salvage Act Cap. 198 and Rivers & Streams Act Cap. 136 which confirm that the state is the owner of the foreshore and the sea bed.

Mr. Bale has cited Philpat v. Bath which I considered. Its decision in no small measure as so long ago as 1905 had confirmed that the foreshore was prima .facie vested in the Crown. The decision went on to say that as the sea was an encroachment on the Defendant's land, he had only an easement on the plaintiffs land. The decision in Attorney General v. Richards cited by Mr. Bale further clarifies the position to the effect that the Crown has a prima facie right to all ports, ores of the sea and to the soil thereof.

The two witnesses who gave evidence in the case eminent and knowledgeable though they were on fishing rights did not help me much decide the issue before me as customary fishing rights is no longer in use. Hence their evidence is considered of little, value.

It is now appropriate to consider the agreement of the plaintiff to purchase Mago Island from MIEL effected on 11.9.1985. Clause 1 refers to the conveyance of freehold island known as Mago Island in the Lau Group of Islands of Fiji together with a buildings stock and chattels as listed in the Inventory. The sale was effected in the month of October 1985. Since that time up to now the plaintiff had been seeking a freehand to repair the wharf for its normal purpose under an Injunction Order against the defendant. We are now in 1992 and the Injunction is in operation.

What the plaintiff categorically is seeking is a declaration that the Defendants have no proprietary rights over the foreshores of Mago Island or over the waters or reefs surrounding the island.

Considering all the affidavit evidence in the case, there is an abundance of weighted authority to consider the legal position to be favouring the plaintiff in their endeavour to such a remedy. It can be established beyond doubt that prima facie the foreshore, waters and the sea bed are all vested in the: state. It is unequivocal and definite. Statutory recognition is given to this right of the state to protect it at any cost. This too is unequivocal.

In resume, I release myself from this Judgment by declaring that the defendants have no proprietary rights over the foreshores of Mago Island or over the waters and reefs surrounding the island, I further order the Defendants cause to be removed from Mago Island and its foreshores forthwith all and any structures or other property belonging to them which either impede or interfere with the rights of the plaintiff I allow the plaintiff costs taxed if not agreed.

(Judgment for the Plaintiff.)