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Taiyab v Native Land Trust Board [2010] FJMC 22; Civil Case 71.2009 (6 April 2010)

IN THE FIRST CLASS MAGISTRATES COURT
AT NAUSORI
FIJI ISLANDS

Civil Case No: 71 of 2009

MOHAMMED TAIYAB (f/n Mohammed Yakub) of Naduru Road, Nausori, Driver
Plaintiff

V

NATIVE LAND TRUST BOARD, a body corporate duly constituted under the Native Land Trust Act, cap 134
Defendant

Before: Chaitanya Lakshman
Resident Magistrate

For the Plaintiff: Mr. Sunil Kumar, Esq.
For the Defendant: Rt. Alipate Mataitini

JUDGEMENT

Introduction

1). On 11th September 2009, the Plaintiffs Solicitor filed Writ of Summons and a Statement of Claim seeking an injunction restraining the Defendant, his servants or agents from entering the Plaintiffs premises or interfering or obstructing the Plaintiff for peaceful and exclusive possession of his house and land allocated by the land owners, in the alternative damages in the sum of $46,390.00, interest at the rate of 10% from 3rd July 2008 until judgement and cost of this action.

2). The Plaintiff also filed an Inter-Parte Notice of Motion on 11th September 2009 seeking Orders that: (a) the Defendant, his servants or agents from entering the Plaintiffs premises or interfering or obstructing the Plaintiff for peaceful and exclusive possession of his house and land allocated by the land owners upon the grounds contained in the Plaintiffs affidavit, (b) Police and Fiji Military Force assist the Plaintiff in enforcing the Order, (c) that the Defendant be ordered to pay cost of the application on solicitor client basis. The Court on 14th September granted Interim Order as per the Inter Parte Motion dated 11th September 2009.

3). The Defendant on 1st October 2009 filed a notice of Intention to Defend and on 23rd October 2009 filed a Statement of Defence. On 6th November 2009 the Plaintiffs Solicitor filed a reply to the Statement of Defence.

The Hearing

The hearing for the case took place on 9th March 2010. The Plaintiff in this action called 3 witnesses. The Defendants called 1 witness.

The Plaintiffs 3 witnesses were Mohammed Taiyab (Pw-1), Veera Chand (Pw-2) and Rukshana Begum (Pw-3). The Defendants witness was Tevita Nawila (Dw-1).

Following the hearing the Court gave the Defendants, 1 week to file submissions and the Plaintiffs 1 week thereafter to respond.

The Evidence

The Court has heard the evidence of the witnesses in this case. The Plaintiff in his examination in chief stated that "NLTB officers came and checked the house under construction. They came 4 times. Tevita came and asked my wife about the papers. Tevita told me I can build the house." In cross examination the Plaintiff told the Court that "there was no written letter to build. Only verbal. Maciu showed me the land to build the house. I know Maciu as mataqali." In re-examination the Plaintiff told the Court "I was told by the Mataqali to build the house."

The material evidence of the Defendants witness, Tevita was that "the Board is not obliged to give consent after mataqali. Plaintiff should obtain lease before construction of the dwelling. No express approval to build the house. In cross examination the witness told the Court he visited the Plaintiff 4 times or more and that he told the Plaintiff it was unlawful development.

The Court also noted and scrutinsed the evidence of Veera Chand (Pw-2) and Rukshana Begum (Pw-3).

The Law

Part II of the Native Land Trust Act, Cap 134 provides for the control of Native Land. Section 4 (1) provides that "the control of all native land shall be vested in the Board and all such land shall be administered by the Board for the benefit of the Fijian owners."

Section 12 (1) of the Native Land Trust Act provides that the Consent of Board is required to any dealings with lease – "except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void"

Analysis of the Law and the Evidence

The Court notes that the Plaintiff obtained the necessary consent of the Mataqali of the land. The Plaintiff lodged the application with the Board (NLTB). The Plaintiff also paid fees for FEA consent.

The NLTB for its part in accepting the FEA consent fees stated that "this consent does not constitute any legal right to occupy the land..."

The Plaintiffs evidence is that he relied on the Mataqali’s consent to build the house. The Plaintiff also told the Court that he was told by Tevita to build the house. The Defendant’s witness, Tevita denied telling the Plaintiff to build the house. The Court noted the demeanor of the witnesses and believes the Defendants witness.

The law is clear on dealings involving native land, it states "it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void."

The Plaintiff has built a house without first obtaining a lease or consent from the Defendant, Board. The granting and withholding of consent is the absolute discretion of the Board. The Plaintiff relied on the consent of the Mataqali to build his house. The Plaintiff did not have consent to build the house or a lease from the Defendant, Board.

The Orders

The Plaintiffs Claim is dismissed. The Interim Order is set aside.

Costs

No order as to costs.

Right of Appeal

The Parties have the right to appeal.

Chaitanya Lakshman
Resident Magistrate

06/04/10