IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC371 OF 1999L

KAIAVA MORAWA

V

NLTB and Anor

Gates J.

Mr T. Fa for Plaintiff [Applicant]
Ms S.A. Cevalawa for 1st Defendant
Mr K. Vuataki for 2nd Defendant

8th January 2000, 24th June 2005

JUDGMENT

Order 29; Notice of Motion seeking injunction restraining payment out of land rents to newly decided Head of Mataqali and Yavusa; Head’s appointment disputed and said to be not confirmed; awaiting decision of Appeals Tribunal of Native Lands Commission; whether proposed payment out premature; appointment for proprietors to decide amongst themselves if they can agree s.3 NLA; dispute referred to Appeals Tribunal s.17(1); threat to pay out all outstanding land rents to disputed Head; headship disputes s.17(3); criteria for appointment not specified; whether a "public office"; whether judicial review competent; whether equality provision of Constitution [s.38] applicable; undertaking not supported by evidence in affidavit; whether damages inadequate remedy; balance of convenience.

Introduction

[1] 	This application is about the appropriateness of restraining the Native Lands Trust Board [NLTB] from making a payment out to the newly decided head of a division of native Fijian landowners.

[2] 	The plaintiff says he is a registered member of the Mataqali Namacuku and Yavusa Namacuku in the village of Nasolo Ba. Statutorily the NLTB has the trustee responsibility for control and administration of native lands. It presently holds rents available for distribution to the incoming head of the division.

[3] 	In his affidavit in support of this application the plaintiff lists the members of the mataqali and yavusa who have authorized him to represent them and to initiate these proceedings. In 1997 the then incumbent of the customary headships of Turaga ni Mataqali and Turaga ni Yavusa, Namacuku, Ratu Eloni Naqiri, died. Thereafter the process began of appointing a successor.

[4] 	If possible and properly, the headship is to be decided by the proprietors of the land in question in accordance with "native custom as evidenced by usage and tradition." [Section 3 Native Lands Act Cap 133].

[5] 	However If there is a dispute concerning such headships, the matter goes before the Native Lands Commission for it to determine who should be head [section 17(1)]. Resolution of the dispute is to be achieved after due inquiry and in the process, the Commission is to hear evidence and to hear from the claimants. Finally the Commission decides who is to be the proper head of such division or subdivision of the people. The inquiry may be halted if the claimants agree in writing, in the presence of the Chairman of the Commission, as to who is to be the head of the division.

[6] 	The Commission visited the village and discussed with the chiefly tokatoka who should succeed to these positions. By letter on 2nd June 1998 the tokatoka wrote to the Commission setting out in order of preference 5 names of those it desired to be appointed. The letter said the decision expressed was the unanimous decision of the tokatoka. The letter which was copied widely, first gave the name of the proposed successor, followed further on by the list in order of preference. The letter concluded by stating:

"We hereby confirm that no woman member of our Mataqali shall be exalted to any position of leadership as this does not accord with what our forefathers have done."

[7] 	The Commission must have concluded that the native Fijians in question had not agreed upon the appointment of a successor to head the division of their people. Accordingly the Commission conducted its inquiry pursuant to section 17(1) and then decided upon Luisa Lewatu [2nd Defendant] as the new Turaga. The NLTB [1st Defendant] wrote to the plaintiff’s solicitors inter alia stating that it had received confirmation from the Commission of its decision resolving the dispute in favour of Ms Lewatu’s appointment. The NLTB said it had released a half share of the Head’s entitlement of rents to the new incumbent, and proposed to release the remaining half, if it did not receive a restraining order. No doubt that letter precipitated these proceedings.

Is there a serious question?

[8] 	When considering whether there is a serious question to be raised it is important to consider first the cause of action: American Cyanamid v Ethicon Ltd [1975] AC 396. The indorsement on the writ claims the 2nd Defendant is not the confirmed Turaga until the plaintiff’s appeal has been determined and dismissed. The restraint is sought in order to allow the appeal process to be exhausted. The plaintiff seeks an injunction, damages and costs. The appeal was addressed to the Chairman of the Appeals Tribunal of the Native Lands Commission.

[9] 	Originally there were no appeals provided for from decisions of the Commission under section 17 concerning the headship of divisions. This position was changed by an amendment to section 7 of the Act [section 2 Native Lands (Amendment) (Appeals Tribunal) Act 1998; No. 44 of 1998]. The amendment brought these decisions within the appeal procedure of section 7; see too section 17(3) [disputes as to headship of mataqali etc]. But the amending Act stated there were to be no further appeals from decisions of the Appeals Tribunal. Such decisions were said to be "final and conclusive and cannot be challenged in a court of law" [section 7(5) NLA].

[10] 	The main thrust of the plaintiff’s argument is that the chiefly tokatoka agreed that the new head should have been the candidate that they had put forward. The Act does not specify upon what criteria these decisions should be based. They might depend upon general Fijian native custom as well as upon more localized custom of the particular mataqali and yavusa.

[11] 	At this stage, it is impossible to say what significance the seniority of lineage ought to have had upon the process of selection, or will have, upon the Appeals Tribunal. It may be also, that local custom, if found to favour male eligibility only for the headship, will be trumped by the equality provisions of the Constitution [section 38]. But this may depend upon whether a headship of a division is to be considered "a public office" [Constitution sections 21(1)(b); 194(1)]. Additionally judicial review may fail if the appointment is held to be a private law matter. There may or may not be an arguable appeal here. Too little is shown of the process and decision for the chances of success of the appeal to be gauged. I conclude tentatively that there is a serious question to be tried.

[12] 	I leave aside the issue of standing. The new section 17(3) of the Act speaks of an appellant as "a person aggrieved". That would appear wide enough to cover a person such as the plaintiff. Not only is he a member of the mataqali, the yavusa and the tokatoka and registered in the native register, he claims also to represent the mataqali and the yavusa. He exhibited a petition signed by 76 adult members of the same agreeing that he should be their representative at the Appeals Tribunal and authorizing him to take this action. Neither side has provided evidence of the number of members who dissent from the plaintiff’s viewpoint.

Are damages an inadequate remedy?

[13] 	The answer to this question must be no. 

Balance of convenience

[14] 	None of the parties have gone into the issue of their respective financial standing. The plaintiff gives "the usual undertaking", but it is impossible to evaluate its strength and suitability, for he provides no evidence of his means. The new head, the 2nd respondent, is silent on the matter also. This was a matter which should have been covered in the affidavit material, even though the lack of support for an undertaking in an appropriate case need not result in injustice: Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd (unreported) Court of Appeal, Fiji Civil App. No. ABU0011.04S, 26 November 2004. But on balance the NLTB may well be capable of compensating the plaintiff, if it transpires that its decision was incorrect. This would tend to favour the refusal of injunctive relief.

Conclusion

[15] 	Whilst overlooking weaknesses in the plaintiff’s case for reversing the decision of the Commission, the balance of convenience requires the refusal of the injunction, and I so order. There will be no order for costs.

[16] 	In circumstances such as these, it would be wise for the NLTB to withhold payment out, at least of 50% of the rent proceeds, until its own Appeals Tribunal has been able to rule on the matter.

Orders accordingly.

A.H.C.T. GATES
JUDGE

Solicitors for the Plaintiff: Messrs Tevita Fa & Associates, Suva
Solicitors for 1st Defendant: Native Land Trust Board Office, Lautoka
Solicitors for 2nd Defendant: Messrs Vuataki & Associates, Suva