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Dawai v Nakovacake Development Trust [2011] FJHC 323; HBC302.2007L (3 June 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 302 of 2007L

BETWEEN:

SOLOMONI NAIKELI & TOMASI NAULUMATUA DAWAI for and on behalf of YAVUSA NADI (BOTILUVUKA)
1st & 2nd Plaintiffs

AND:

NAKOVACAKE DEVELOPMENT TRUST
1st Defendant

AND:

ILIASERI VARO as trustee and chairman of the NAKOVACAKE DEVELOPMENT TRUST
2nd Defendant

AND:

TOMASI NAULUMATUA as trustee and vice-chairman of NAKOVACAKE DEVELOPMENT TRUST
3rd Defendant

AND:

i TAUKEI LAND TRUST BOARD
4th Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr V Mishra (Plaintiff)

Mr K Vuataki (1st 2nd 3rd Defendants)

No appearance (4th Defendant)

Solicitors: Mishra Prakash (Plaintiff)

Vuataki Law (1st 2nd 3rd Defendants)

In house (4th Defendant)

Dates of Hearing: 11 April 2011

Date of Judgment: 3 June 2011

INTRODUCTION

[1] This is a dispute between i Taukei[1] members over distribution of the proceeds from the lease of their i-Taukei lands. The Plaintiffs claim that they are entitled to a one third share under the deed of trust but the Defendants say that they are entitled to only one fourteenth.

[2] The First, Second and Third Defendants apply to strike out the Plaintiffs' claim on the grounds that this Court has no jurisdiction to decide the dispute because it is a dispute within the ambit of s 16 of the i Taukei Lands Act which the i Taukei Lands Commission, Tribunal and the Minister for i Taukei Affairs have exclusive jurisdiction to decide.

THE PARTIES

[3] The Plaintiffs are the head and representatives of the members of the "Yavusa Nadi". The First Defendant is a private trust established in 2006 to manage lease monies for the beneficiaries of the trust who are the members of the Yavusa Nadi and two others, Yavusa Noi Naiqoro and Yavusa Tukani. The three yavusa comprise the Vanua of Kovacake which is the owner of large areas of i-Taukei land in the Nadi district. The Second Defendant is the chairman of the trust and the Third Defendant is the vice-chairman. Lease payments for these lands are collected by the Fourth Defendant, the statutory trustee for i-Taukei lands, the "NLTB", and eventually distributed to the i-Taukei through their trust.

THE DISPUTE

[4] This dispute is about the distribution of lease monies. The Plaintiffs say that they are entitled to a one third share in accordance with the number of Yavusas. But instead, the trust had distributed to them only a one fourteenth share according to the number of Tokatokas.

[5] If this is a dispute over ownership of i-Taukei lands then this Court has no jurisdiction.

JURISDICTION

[6] Section 16 of the i Taukei Lands Act [Cap 133] provides:

Settlement of disputes between Fijians in special cases

16.–(1) In the event of any dispute arising the parties to which are Fijians (i Taukei) in connection with land in a province or tikina in which the proprietorship of the Fijian owners has been ascertained by the Commission or in a province or tikina which it may be inconvenient or inexpedient for the Commission to visit without delay or in any other case when he may deem it expedient, the Minister may delegate a member of the Commission or some other proper person to inquire into the same.

[7] Also relevant are sections 6 and 7 which provide:

Commissioners to enquire into titles and describe boundaries of lands claimed

6.-(1) The Commission shall institute inquiries into the title to all lands claimed by mataqali or other divisions or subdivisions of the people and shall describe in writing the boundaries and situation of such lands together with the names of the members of the respective communities claiming to be owners thereof.

(Amended by 7 of 1959, s. 3.)

Rules re procedure

(2) The Commission shall, with the approval of the Minister, make rules for regulating the procedure to be followed and prescribe forms to be adopted at any such inquiry.

Owners to mark out land

(3) When any inquiry is to be held in any tikina of which notice in accordance with the rules of the Commission has been duly given it shall be the duty of the persons claiming to own lands in that tikina to mark out and define in such manner as the buli of the tikina may direct the boundaries of the lands of which they claim to be the respective owners. Every such person failing to comply with this provision shall be liable to a fine not exceeding two dollars or to imprisonment for one month and shall defray any expense in marking out and defining the boundaries caused by his default.

Commission to record boundaries where no dispute

(4) If there is no dispute as to the ownership of any lands marked out and defined as aforesaid and the Commission is satisfied that the claim is bona fide and that all conditions as to notice of the inquiry and the claim made have been duly complied with and that full opportunity of objecting to the ownership claimed has been given to all interested in the Commission shall record the boundaries of such lands and the names of the owners.

Disputes to be decided by Commission

(5) If there is a dispute as to the ownership of any lands marked out and defined as aforesaid the Commission shall inquire into it and, after hearing evidence and the parties to the dispute, decide the question of ownership and record its decisions:

Provided that if the parties to the dispute agree in writing in the presence of the chairman of the Commission to a compromise the Commission shall record the boundaries of the lands and the names of the owners in accordance with such compromise.

Record of encumbrance, etc.

(6) When recording the owners of any lands the Commission shall ascertain and record the name of any person who holds with respect to that land any customary title or office and shall also record any encumbrance or easement to which the land may be subject.

Announcement of decision

(7) On the conclusion of the proceedings recording the ownership of any piece of land the Commission shall announce its decision to the parties concerned:

Provided always that the Commission may adjourn to such date as it may think fit for the purpose of considering such decision.

Power to summon witnesses, etc.

(8) For the purposes of any inquiry the Commission shall have the same powers as those vested in magistrates to summon and examine on oath any person whom they may think able to give relevant evidence and to require the attendance of all claimants to any land the title of which is being inquired into and of all persons likely to be interested in the title to such land.

Other powers

(9) In the event of the persons claiming to own any native lands refusing or neglecting when called upon to give such full and proper information to the Commission as will enable it to carry out the provisions of section 4, the Commission shall have the power to make such division of the lands as may seem to it just and equitable.

Powers of Minister

(10) Pending such division it shall be lawful for the Minister to direct that no rents accruing from such lands be paid to any native claimant.

(3 of 1912, s. 2, amended by 8 of 1919, ss. 6 and 7, 14 of 1925, s. 6, and 7 of 1959, s. 3.)

Appeal

7.-(1) There is hereby constituted an Appeals Tribunal consisting of a chairman and two other members all to be appointed by the Minister. It shall be the duty of the Appeals Tribunal to hear and determine appeals from decisions of the Commission under section 6 and from a commissioner under section 16, and any such determination by the Appeals Tribunal shall be final.

(2) Any person aggrieved by any such decision of the Commission or of a commissioner shall within ninety days of the announcement thereof give notice of his desire to appeal, which shall be signed by the appellant or his duly authorised agent, to the Commission. The notice shall contain the grounds of appeal.

(3) For the purpose of determining an appeal the Appeals Tribunal shall have power to hear further evidence, but only if all of the three following conditions are satisfied:-

(a) if it is shown that the evidence could not have been obtained with reasonable diligence for use at the inquiry before the Commission or commissioner;

(b) if the further evidence is such that, if given, it would probably have an important influence on the decision;

(c) if the evidence is such as is presumably to be believed.

(4) If no notice of appeal is given the record of the Commission or commissioner, as the case may be, shall be final.

(Section inserted by 7 of 1959, s. 4.)

[8] The policy of the Act is that all disputes between i Taukei Fijians concerning i Taukei lands are to be determined by the Commission subject to the right of appeal to the Tribunal whose decision is final and not open to scrutiny by the civil Courts. This has been affirmed recently in a number of cases and I need only refer to the Court of Appeal judgement in Namatua v Native Lands and Fisheries Commission [2005] FJCA 85; ABU0020.2004S (4 March 2005) and my judgment in the Tui Vitogo case: State v Native Lands Appeals Tribunal [2009] FJHC 164; HBJ 2 of 2009L (14 August 2009).

[9] The Plaintiffs' claim[2] that the three Yavusas are the registered joint proprietors and each hold an equal one third undivided share. The First, Second and Third Defendants deny the claim. They say[3] that the "i Taukei land in Nadi referred to is owned by 'Tukani, Noi Naiqoro and Nadi Mataqalis'. The Mataqalis of Tukani are Weilulu, Nadakia, Nauralose and Naobeka. The Mataqalis of Nadi (Botiluvuka) is Duiyata. The Mataqalis of Noi Naiqoros are Savusavu and Vunamasei". The NLTB draft defence pleads that the three Yavusas "neither admit nor deny that (they) hold an equal one third undivided share each and puts the Plaintiff to strict proof thereof"[4].

[10] Is this case about proprietorship of i Taukei lands? I think it is. It is true that the parties are disputing distribution of lease monies but that issue cannot be resolved without answering the question: "Who owns the lands, Yavusas or Mataqalis, and in what proportions?"

[11] I therefore hold that this Court has no jurisdiction to hear this matter and therefore dismiss the Plaintiffs' Writ of Summons and Statement of Claim. I leave it to the parties and their counsel to determine the best way to resolve this dispute.

[12] Lastly, and with the greatest of respect, I think it is worth reminding the parties of the wise counsel of Sir Timoci Tuivaga, the former Chief Justice, that[5]:

"Fijian custom and tradition has its own in-built method of resolving even the hardest of disputes. It is called "vei sorosorovi" and is invoked in order to restore peace and harmony to village life and in a larger context to the life of the vanua. It of course requires a huge helping of magnanimity wisdom and understanding. It is only when Fijian custom and tradition is ignored or gives way to expediency that disputatious situations will arise in Fijian society."

COSTS

[13] As in similar cases in the past I make no order as to costs.

ORDERS

[14] The orders are as follows:

• (a) The Plaintiffs' Writ of Summons and Statement of Claim is struck out for want of jurisdiction.
  
• (b) There is no order as to costs.
  

............................................................
Sosefo Inoke
Judge

^[1] See the Native Land Trust (Amendment) Decree 2011 which substitutes all references to “native” in all written laws with “i Taukei”.
^[2] Statement of Claim, para 6(a).
^[3] Defence filed on 16 October 2009, para 6(a).
^[4] See annexure SB1 to the affidavit of Sosiveta Boila filed on 24 September 2009.
^[5] See the “Ka Levu” case [1989] FJHC 53.