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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0069 OF 1994L
NAULIVOU
V
THE NATIVE LAND TRUST BOARD
Gates J.
Mr K. Vuataki for the Plaintiff
Mr R. Matebalavu for the Defendant
3-4 April, 27 June, 26 July, 29 May 2002
12 November 2003
JUDGMENT
Introduction
[1] This case calls for a decision on what type of land holding is in dispute, who owns that land, and to whom should the income derived from it be distributed.
[2] Pre-Cession, a George Winter purchased Vomo Island, an island of 270 acres 22 kilometres off the coast of Lautoka. Winter bought it from the then Tui Vuda, Ratu Nasorowale and paid for it with a 26 foot schooner. This transaction was thought to have occurred in the year 1871. After Cession, the title was registered to Winter. Such sale was finally approved and confirmed by the Governor on 8 June 1883 and the title became registered on that day as Crown Grant No. 850.
[3] Upon George’s death, his son Francis Pratt Winter succeeded to the property. The transmission by death was noted on the Certificate of Title.
[4] Perhaps because he had moved on to Papua New Guinea, Francis Winter was prepared to sell the island. He sold it for £60. The possibility of re-purchase had been discussed at a Council Meeting for the Province of Ba and Yasawa held at Nailaga in 1897. The money was raised under the co-ordination of the Tui Vuda in time for the next meeting in 1898 and the re-purchase was approved by the Governor on 22 November 1898.
[5] On 25 February 1899 the Government Commissioner registered the transfer on the Certificate of Title, noting "the mataqali Sabutoyatoya of the Province of Yasawa" as the newly registered owner.
[6] David Wilkinson headed a Native Lands Commission of Inquiry. He carried out a painstaking inquiry into the ownership of land in the Ba and Yasawa province between the years 1893-98. On one view Wilkinson had referred to all yavusas in the District of Vuda as mataqalis, a smaller land owning community than the yavusas.
[7] There is a Yavusa Sabutoyatoya who reside at Namara Village on Wayasewa Island in the District of Waya. This island comes within Yasawa Province. The Plaintiff comes from Namara and is a member of the Yavusa Sabutoyatoya, hereafter Yavusa Sabutoyatoya [Wayasewa]. He claims to represent the yavusa, and the tokatokas the family groups that are within the yavusa, tokatokas Nos. 41-45 as listed in the Vola ni Kawa Bula [the VKB].
[8] There is a second group. They reside at Viseisei Village in the District of Vuda of Ba Province who also claim to be the Yavusa Sabutoyatoya. I shall refer to them as the Yavusa Sabutoyatoya [Viseisei].
[9] On 12 March 1989 the Defendant, on behalf of the owners, the Yavusa Sabutoyatoya, leased Vomo Island, comprising Vomolevu and Vomolailai Islands, to a resort company for 99 years. Consideration for the lease was $80,000. From 1988 the annual rent was to be $10,000 advancing to $100,000 per annum from 1993 onwards, with provision for periodic reassessment. The increase in the commercial value of the land asset naturally sharpened the interest of the two parties to the dispute.
[10] The Yavusa Sabutoyatoya [Wayasewa] also referred to as the Yavusa Sabutoyatoya [Namara] has not been recognised officially as owners or part owners of Vomo. They have not received any capital or income payments from the Defendant, who has acted as Trustee for the yavusa. Instead all monies from the lease to the date of the hearing had been paid out to the Tui Vuda "as sole owner and sole recipient".
What type of land is it?
[11] When George Winter acquired Vomo Island from Ratu Nasorowale in 1871, he purchased land that was from then on to be treated as outside of the scheme of lands for native owners. Whether or not the sovereignty of King Seru Cakobau held sway in the Yasawas was perhaps not to great point for the freehold title was not registered till after Cession. By then the paramount chiefs at Cession had conferred the sovereignty of the Fiji Islands upon Queen Victoria.
[12] The source of private title was reviewed definitively in The Queen (on the prosecution of C.H. McIntosh) v Symonds [1847] PCC 387. Chapman J. in a remarkable and learned judgment said (at p.388):
"It is a fundamental maxim of our laws, springing no doubt from the feudal origin and nature of our tenures, that the King was the original proprietor of all the lands in the kingdom, and consequently the only legal source of private title: 2 Bl. Com. 51; Co. Litt. 65, a."
[13] Not only was the Queen the exclusive source of private title, but the mode of verification by matter of record meant a full adoption and affirmation by the colonial courts of the rule of English law. "No freehold, interest, franchise, or liberty can be transferred by the Crown, but by matter of record" (p.389).
[14] Chapman J. concluded (p.389):
"In this Charter, we find the invariable and ancient practice followed: the Governor, for the time being, being authorized to make and execute in Her Majesty’s name, and on her behalf, under the public seal of the Colony, grants of waste lands, &c. In no other way can any estate or interest in land, whether immediate or prospective, be made to take effect; and this Court is precluded from taking notice of any estate, interest, or claim, of whatsoever nature, which is not conformable with this provision of the Charter; which in itself is only an expression of the well-ascertained and settled law of the land."
[15] His lordship added:
"Any acquisition of territory by a subject, by conquest, discovery, occupation, or purchase from Native tribes (however it may entitle the subject, conqueror, discoverer, or purchaser, to gracious consideration from the Crown) can confer no right on the subject. Territories therefore, acquired by the subject in any way vest at once in the Crown. To state the Crown’s right in the broadest way; it enjoys the exclusive right of acquiring newly found or conquered territory, and of extinguishing the title of any aboriginal inhabitants to be found thereon. Anciently private war was not unusual. The history of Sir Francis Drake is an instance of a subject acquiring territory for the Queen, by a mixture of conquest and discovery, without a Commission. In like manner an accidental discovery is taken possession of, not for the benefit of the discoverer himself, but for that of the Crown. The rule, therefore, adopted in our colonies, "that the Queen has the exclusive right of extinguishing the Native title to land," is only one member of a wider rule, that the Queen has the exclusive right of acquiring new territory, and that whatsoever the subject may acquire, vests at once, as already stated, in the Queen. And this, because in relation to the subjects, the Queen is the only source of title."
[16] His lordship writing in 1847 considered the practice of extinguishing Native titles by fair purchases to be then more than two centuries old. The law existed to uphold fair transactions if accompanied by genuine consideration, as well as to protect Native owners from exploitation. At p.390 his lordship continued:
"In the case of the Cherokee Nation v. State of Georgia [1831] USSC 6; (1831) 5 Peters 1 the Supreme Court threw its protective decision over the plaintiff nation, against a gross attempt at spoliation; calling to its aid, throughout every portion of its judgment, the principles of the common law as applied and adopted from the earliest times by the colonial laws: Kent’s Comm. Vol. iii, lecture 51."
[17] Rejecting the idea of a right of pre-emption Chapman J. concluded:
"But the right which resides in the Crown is, as we have seen, the exclusive right of extinguishing the Native title."
[18] Martin CJ in the same case referred to the Commentaries on American Law by Mr Chancellor Kent of the State of New York. Land sales in the American States were only recognised under the Sanction of Treaties, not individual purchases. He said:
"The only power that could lawfully acquire the Indian title was the State, and a Government grant was the only lawful source of title admitted in the Courts of justice."
[19] George Winters rights to the freehold remained undisturbed by Cession. In Oduntan Onisiwo v Attorney-General of Southern Nigeria (1912) 2 Nig. LR 77 Osborne CJ decided as regards the effect of the Southern Nigeria Cession of 1861 that he was of opinion that "the ownership rights of private landowners, including the families of the Idejos, were left entirely unimpaired, and as freely exercisable after the Cession as before."
[20] Viscount Haldane delivering the judgment of the Privy Council in Amodu Tijani v Secretary, Southern Nigeria [1921] UKPC 80; (1921) 2 AC 399 at p.407 said:
"A mere change in sovereignty is not to be presumed as meant to disturb rights of private owners; and the general terms of a cession are prima facie to be construed accordingly."
[21] A cautious approach to the recognition of individual title was adopted by the colonial and imperial courts. In the 1880s white settlers from South Africa moved North into Matabeleland and Mashonaland, over which the British Government recognised Lobengula as an independent King. In re Southern Rhodesia [1919] AC 211 was a decision of the Privy Council which affirmed that a chartered company’s conquest of territory was to be treated as being made on behalf of the Crown.
[22] Lord Sumner delivering the report of the Council said at p.217:
"The Imperial Government desired to avoid the scandal and disorder to which a scramble for the natural resources of the country would lead unless the white immigrants were placed under effective control, and to secure the aboriginal inhabitants in the conditions necessary to their tribal mode of life, until they should have become adapted to take their place in a civilized community."
[23] Lord Sumner explained the need for caution (at p.236):
"Private concessions of large extent and of ambitious character, when obtained by white financiers from untutored aborigines, are generally and justly objects of close scrutiny, but their Lordships are relieved from the duty of inquiring into the circumstances under which this grant was made by the fact that competent officials reported to the High Commissioner, after making full inquiry under his direction, that the concession had been properly obtained and that its terms correctly expressed Lobengula’s intentions and exactly reflected his understanding of the matter."
[24] In Winter’s case, not only was registration achieved after Cession, but the land sale underwent necessary scrutiny before the Governor gave his confirmation and approval. Winter possessed a freehold title to the land, as also did his son Francis when he succeeded on his father’s death.
[25] It cannot be doubted that a freehold title was purchased by "the mataqali Sabutoyatoya of the Province of Yasawa." Conceptually that title remained a freehold. The quality and category of land does not mutate dependent on the race or community formation of the new owner.
[26] The Native Lands Act Cap. 133 defines unequivocally (at section 2) that:
"native lands" means lands which are neither Crown Lands nor the subject of a Crown Grant.
[27] The situation here bears some similarity to that in Volavola v Mara [1986] 32 Fiji LR 9. In Volavola the land was leased to a resort company and was also freehold. Similarly there was a misunderstanding that the freehold had reverted to Native land.
[28] On behalf of the Plaintiff in the instant case it has been pleaded "that by virtue of the Native Lands Amendment Ordinance 1895 the said Certificate of Title was cancelled and the islands reverted to the yavusa and became native land." In its defence, the Defendant denied such a claim. No such Ordinance has been brought to my attention. My own researches did point to The Native Lands Ordinance 1905, where the definition of native lands was identical to that found in the subsequent Native Lands Act Cap. 133. Sections 5 and 6 of the 1905 Ordinance provide for the Crown to be the ultimus haeres, the last or remote heir, of extinct mataqalis and for the Crown to purchase native land of reduced mataqalis. Neither circumstances are relevant here.
[29] In Volavola (supra at p. 14B) Rooney J. said:
"The land comprising Yanuca island is not native land as defined by the Native Lands Act, as it is freehold. It has been treated as such since 1906. It has a Certificate of Title and is registered under the Land Transfer Act Cap. 131. It has never been placed under the control of the Native Land Trust Board or administered as if it were native land."
[30] The judge concluded (at p.14D):
"As Yanuca Island has once been the subject of a Crown grant and could no longer be treated as native land, it was made the subject of a trust in favour of the people considered to be the rightful owners. I have no information as to how this situation first arose and when, but, the solution adopted was a practical one."
[31] It is difficult to imagine how (or why) a mataqali, once registered as owners of a freehold title, would seek to divest itself of such rights. It is possible it could arrange for a private Act of Parliament to convert such land back to native title, with its consent, or that the Director of Lands could accept a surrender of the Crown Grant and instead arrange for the issuance of a native title. But without one of the means I have mentioned freehold land remains freehold land. A freehold title is not a chameleon to change its colour depending on whose grasp within which it is held.
[32] The Register of Native Lands at Vol. A Folio 443A is conceptually incorrect therefore in referring to the subject land as native land. The land should not be listed in the Register of Native Lands. Nor could the Acting Chairman of the Native Lands Commission on 6.5.92 lawfully have made an order to correct the same Register by adding Tokatokas Nos. 41-45 to the Yavusa Sabutoyatoya from Namara on Wayasewa. The intention was proper but the concept was misconceived.
[33] Similarly the tenant, Offshore Resorts Ltd., should have been granted an ordinary lease, not a native lease. Nor is the lease subject to the consent of the Board, the Defendant. The Board may act as an ordinary Trustee. The owner of the freehold is not however bound to engage the Defendant as Trustee.
[34] On 26 April 1990 the Native Lands Commission purported to make a ruling. It ruled as follows (p.11):
"Therefore, the Commission has ruled that Vomo Island be transferred and registered in the Register of Native Lands, under the ownership of the Yavusa Sabutoyatoya of Viseisei, Vuda and that administration and use of the island is vested solely with the holder of the title of the Tui Vuda."
[35] The NLC is "charged with the duty of ascertaining what lands in each province of Fiji are the rightful and hereditary property of native owners, whether of mataqali or in whatever manner or way or by whatever divisions or subdivisions of the people the same may be held" [section 4 NLA]. Lands in each province here refers to native lands not to freehold or Crown Leasehold. The manner of holding refers to the community landholding units, the mataqalis, yavusas or tokatokas, or to a unit as understood by custom.
[36] "All Lands" claimed by mataqali, into which the Commission may inquire must refer similarly only to native lands. The Native Lands Act is not legislating for other land titles such as freehold or Crown Lease, which are not "native lands".
[37] The Commission misunderstood its role here. It had no power to re-investigate freehold land. This would be a matter for the courts alone. It follows the Commission would have no powers "to correct the register" or to convert freehold land into native land or vice versa. It was incorrect to say as the Commission expressed itself in its ruling" "... it is now the Native Land Commission’s prerogative to correct this error," and:
"The final decision on the ownership of Vomo Island rests solely with the Native Lands Commission, therefore it will be the Commission’s task to issue forth a ruling by clarifying the island’s ownership which will then be transferred to the Register of Native Lands."
[38] The fact of its freehold nature was not questioned by the various Commissions of Inquiry. It is said the issue in dispute was as to the meaning of the registration to "the Mataqali Sabutoyatoya of the Yasawa Province". Even in its own ruling the NLC conceded (at p.5):
"Thus, it was registered as a freehold land and all Commissions of Inquiries that followed, that is Wilkinson in 1895, Maxwell in 1914, and Ratu Sukuna in 1925 did not, again inquire into the Vomo Island issue."
[39] I conclude that the land has been properly registered as freehold land, that there has been no basis for changing that status, and that the subject land remains freehold land to this day.
Plaintiff’s right to sue
[40] The Defendant pleaded in its Defence that the Plaintiff did not have the authority of all or the majority of the members of the Yavusa Sabutoyatoya and the tokatoka for him to bring his claim. The Plaintiff’s locus standi was questioned.
[41] However in the agreed facts this challenge was not pursued. Cullinan J. in Waisake Ratu No. 2 & Anor. v NLDC and NLTB [1991] 37 Fiji LR 146 considered communal associations of indigenous for the sharing of communal proprietary interests not to be alien to statutory laws. Indeed the 1970 Constitution as well as subsequent Constitutions enshrine many protections for such groups. His lordship had reviewed other decisions prior to coming to the conclusion (at p.184) that:
"the Constitution has entrenched and protected "Fijian land, customs or customary rights" While such aspects may be alien to the law of England as applied to Fiji, it cannot in anyway be said that they are alien to the Constitution or the written law of this country."
[42] His lordship observed (at p.185):
"Once the right is established as part of the customary law of Fiji, and therefore as part of the law of Fiji, how then can the right be regarded as other than a legal right? Again, once it is established that a legal right has been unlawfully or unjustifiably infringed, I cannot then see why, in an appropriate case, even a declaration or an injunction, much less damages, would not follow."
[43] On the question of suing the Board the judge said (at p.187):
"That cannot mean that the Board cannot be sued by the native owners, or a member of a proprietary unit, in a proper case."
and:
"What if, for example the Board were to completely ignore the provisions of section 9 and were to grant a lease? In such a case, deprived of the use of their land without agreement, say, for 99 years, it would obviously be grossly unjust that the native owners could not sue the Board in its capacity as trustee."
[44] The question of access to the courts is an important one. It is right and just in many cases that access be freely allowed. The courts must also be inclined to rescue justice from the perils of technical or human error. Justice is not to be denied or obstructed on such insubstantial grounds. The Plaintiff has a proper nexus with the claim and a proper interest. There is no question of the floodgates being opened.
[45] Cullinan J. put the significance of denying access for native owners in this way (again p.187):
"I would be slow to interpret the section as meaning thereby that the Legislature intended that the native owners, comprising 50% of the population, holding 85% of the lands of Fiji should be excluded in person from the Courts of Fiji."
That judgement was delivered in 1987, though it was not reported till 1991. It was not till 2002 that the Court of Appeal decided conclusively that such actions as the present one can be maintained. It was held in Mesulame Narawa and Anor. v NLTB and 4 Others (unreported) Court of Appeal Fiji Civil App. No. ABU0012 of 1999S; 31 May 2002 that a representative action could be pursued since the mataqalis had a common interest and so "that they (can) receive whatever is due to them (from the Board) from the agreements." The relief was also likely to be seen as beneficial to the members or at least to most of them.
[46] The large majority of members there, as here supported the action. Finally it was said (at p.12):
"the appellants have no other course open to them. They cannot sue personally. They cannot bring an action as an unincorporated association because they would not obtain unanimity."
[47] I find there is no impediment in this case to the bringing of a representative action in this form.
Who owns the land?
[48] It is urged that the use of the word mataqali in the freehold title is significant. The Defendant says it was a mistake and the word yavusa should have been written.
[49] The Native Lands Act refers to mataqali when charging the Native Lands Commission with the duty of ascertaining the rightful owners, and indeed throughout the Act. Yavusa is never mentioned [sections 4, 6, 14, 17, 18]. Mataqali was the word used in the 1905 Ordinance and it is retained today without change after the passage of 18 amending Acts as at 1978.
[50] As for the cases, in Ame Gavidi [1946-55] 4 Fiji LR 14 the Accused was found not to be a trespasser since the mataqali had allowed a native who was not a member of the mataqali to plant crops on their land. Customary permission from the mataqali was recognised by the court.
[51] In Meli Kaliavu & Others v Matanivunga and the NLTB [1956-57] 5 Fiji LR 17 it was the mataqali who owned the 230 acres, and in whose name the native land was registered. Similarly in Naimisio Dikau No. 1 and 4 Others v NLTB and Anor. [1986] 32 Fiji LR 179 the mataqali was the landholding unit. On the other hand Commissioner Maxwell insisted that the tokatoka or its equivalent was "in most cases the proprietary unit."
[52] It has not been claimed that there is a Mataqali Sabutoyatoya. It is claimed that this usage referred to the Yavusa Sabutoyatoya of Wayasewa and Namara with its accompanying tokatokas as pleaded.
[53] The Defendant did not challenge the evidence of the Plaintiff on the history and origin of the people of Wayasewa and Namara or of their use of the island of Vomo. The Defendant simply called an accounts officer from its Western Division office to deal in unspecific terms with the distribution to date.
[54] All of the Plaintiff’s witnesses acknowledged the Tui Vuda as their paramount chief. On ceremonial occasions "(the Tui Vuda) drinks first" said the Plaintiff "because he is the Turaga Taukei. He holds the higher title (than our own Chief)".
[55] Historically the Tui Vuda was instrumental in raising the money to re-purchase the island. Monies were raised said the witnesses by the people of Namara also, which they had to work for. But then the Tui Vuda’s people also contributed.
[56] Nothing turns on the naming of the Province for the yavusa since both Namara and Vuda fell into the original province of Ba and Yasawa.
[57] As was clear from the evidence given by Isireli Dawai before Ratu Sir Lala Sukuna, the Native Land Commissioner in 1925, three groups of people made up the Namara people on Wayasewa. The first group were the Kai Yabola, a dissident group from Vuda. They built a temple on Vomo, and built Namara on a hill on Wayasewa. A second group came from Solevu, Malolo. They also settled on Wayasewa. The third group came to Namara because of a falling out amongst the chiefs at Vuda. As a result, a chiefly brother Tavutunawai was offered sovereign rights at Namara. The Namara chiefs are descended from him.
[58] Isireli Dawai ended his evidence before Ratu Sir Lala by saying:
"But Mr Wilkinson’s Land Commission put land ownership by mataqalis. The Mataqali boundaries have been ascertained and the members of each Mataqali are also known in the Yavusa Sabutoyatoya and likewise the Tokatoka of each person."
[59] Nacanieli Nabukavou, who was a Commissioner of the Native Lands Commission gave evidence concerning the history of the yavusa and from where it originated. He exhibited various documents. He commented on the composition of the yavusa and said "This mix of peoples is not usual".
[60] He said "In NLC records we have 2 separate yavusas of Sabutoyatoya". He referred to the Turaga ni Yavusa of Sabutoyatoya of Namara and the Turaga ni Yavusa of Sabutoyatoya of Viseisei. He indicated he knew of another such situation where lands were owned in common and where other lands were owned separately by the two yavusas.
[61] He referred to the NLC records and said "There was another yavusa listed under Sabutoyatoya for Viseisei. They fall into the Waya District, but they pay allegiance to the Tui Vuda. This is not to say that the Tui Vuda is a member of the same yavusa".
[62] It was after this witness’ evidence that Mr Rabo said "It has been put beyond doubt by documentation that the yavusas are separate. This is the main issue. It appears to be overwhelming evidence". An adjournment was requested to seek further instructions from his client. This adjournment was granted.
[63] I find that the two yavusas are indeed separate. I also find that they are owners in common of the freehold title to Vomo Island. When the Tui Vuda of the day asked his people to raise the re-purchase money for Vomo, it must have been done to help his subjects on Wayasewa who used Vomo. He and his tokatokas would gain in various ways from this communal effort, but the re-purchase would not have been done to exclude the Yavusa Sabutoyatoya of Namara. I am certain he did so to benefit his people on Wayasewa also.
How is the freehold to be governed?
[64] At the moment the NLTB acts as Trustee for the yavusa. The NLTB has perpetual succession and could prove a less cumbersome trusteeship and with more experience than individual trustees if drawn from the yavusa. However the yavusa could seek outside trustees since this is not native land. In Volavola I understand the court eventually appointed alternative or additional trustees.
[65] Seeing no discord in the unruffled co-existence of written law with customary law in Fiji, I conclude that all dealings with the freehold are to be conducted in accordance with those written laws and the common law of Fiji. But as between the owners in common, the two yavusas and their members, such succession and other interests as between themselves should be governed in accordance with customary law as already established in Fiji.
How is the income to be distributed?
[66] Since there are clearly two yavusas to share the proceeds, I find that the income should be distributed on the basis of a 50% share to each yavusa.
[67] This was not native land and so it does not follow that the Defendant may make a statutory deduction as provided for by section 14 of the Native Land Trust Act. The matter of fees and charges should be subject to negotiation and a percentage figure agreed commensurate with the work carried out as non-statutory Trustee.
[68] Distribution should follow the arrangements laid down in Regulation 11 of the Native Land Trust (Leases and Licences) Regulations Cap. 134.
[69] Finally it is to be observed that it is difficult to understand why the people of Namara and Wayasewa were disregarded for so long from the advantages of ownership of the freehold of Vomo.
[70] The mere raising of their interests by having to come to court was itself a great embarrassment to the Plaintiff and to the persons he represented. The Plaintiff said it was a breach of protocol. The Appeals Tribunal recorded in 1990 that the then Tui Vuda had authorised the inclusion of the Yavusa Sabutoyatoya of Wayasewa in the distribution along with his Yavusa Sabutoyatoya of Viseisei. Of course in law no such amendment was necessary. The Yavusa Sabutoyatoya were always entitled to ownership and any income from the freehold.
[71] Yet no-one was called forward to testify why official recognition had never been given, and why the islands of Wayasewa were denied their lawful share in the bounty from the tourist lease. I am not asked to right all of that wrong.
Result
[72] In the result I make the following orders:
A.H.C.T. GATES
JUDGE
Solicitors for the Plaintiff: Messrs Vuataki & Associates.
Solicitors for the Defendant: Messrs Esesimarm & Co.
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