Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Vukiti No.1 v Itaukei Land Trust Board [2011] FJHC 418; HBC370.2002L (3 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 370 of 2002L

BETWEEN:

SOLOMONE VUKITI NO 1 & OTHERS as Trustees of TOKATOKA NASIRITI
Plaintiffs

AND:

iTAUKEI LAND TRUST BOARD
First Defendant

AND:

WAISAKE RAVUTU & VILIAME BATIDEGEI as Trustees of MATAQALI NAVUSABALAVU
Second Defendants

JUDGMENT ON JURISDICTION

Judgment of: Inoke J.

Counsel Appearing: No Appearance (Plaintiff)
Mrs L Macedru (1st Defendant)
Mr N Nawaikula (2nd Defendants)

Solicitors: Sahu Khan & Sahu Khan (Plaintiff)
In house solicitors (1st Defendant)
Nawaikula Esq (2nd Defendants)

Dates of Hearing: 3 August 2011

Date of Judgment: 3 August 2011

INTRODUCTION

[1] This is a dispute between iTaukei members of Mataqali Navusabalavu. It is about the distribution of land lease monies by the First Defendant. The plaintiffs allege that their share of the monies should be distributed to them and not through the second defendant Mataqali.

[2] The dispute has been ongoing since 1996. There has been another court action but that came to an end in 1998. In 2002 the plaintiffs filed this action. It eventually came before me for hearing on 3 August 2011.

[3] One of the preliminary issues to be determined is whether this Court has jurisdiction to hear disputes between iTaukei members in respect of their lands. After hearing counsel I dismissed this action for want of jurisdiction and indicated that I would publish my reasons in writing in due course. These are my reasons.

LEGAL REPRESENTATION FOR THE PLAINTIFFS

[4] The plaintiffs were represented by Dr Sahu Khan who is now disbarred and resides overseas. His firm is now taken over by receivers but they did not appear at the hearing, nor did the plaintiffs. I did not think that it would have made any difference to the outcome so I heard counsels for the first and second defendants.

[5] However, I do direct the Deputy Registrar of this Court to send a copy of this judgment to the receivers Messrs Ram and Shailendra Krishna of Krishna & Co, Lautoka.

THE BACKGROUND

[6] The Writ and Statement of Claim were filed on 15 November 2002. The plaintiffs are the members of Tokatoka Nasiriti. The tokatoka is one of three tokatokas that comprise Mataqali Navusabalavu, the second defendant. According to the statement of claim, since 1996, the first defendant, who is charged with the duty to distribute land lease monies, had distributed the plaintiffs’ share of those monies through the second defendant instead of directly to the plaintiffs. They seek consequential orders and damages of $210,000.

[7] The second defendants deny the claim and say that they are the proprietary unit of the lands in question and the monies for all the lands owned by the iTaukei were rightly distributed to them. The second defendants say that prior to October 1996, the plaintiffs received all the lease monies and used them for themselves instead of for the benefit of all the landowners. On 2 July 1998, a majority of the Mataqali Navusabalavu signed a deed of trust appointing the second defendants as the trustees for the Mataqali. A second deed of trust was signed on 28 April 1999 by a majority of the members affirming the first deed and vesting all real and personal property of the Mataqali in the second defendants. They have used the monies for the betterment of all landowners as a whole including members of the plaintiff tokatoka.

THE LAW

[8] The law on the point has been the subject of several decisions of this Court in recent times. There are differing opinions on it but the weight of authority is that this Court does not have jurisdiction to hear such a dispute. I need only refer to my decision in Varo v Varo [2010] FJHC 408; HBC234.2008L (5 August 2010) and the more recent one in Dawai v Nakovacake Development Trust [2011] FJHC 323; HBC302.2007L (3 June 2011). In the latter decision I explained the rationale behind the law as follows:

[8] The policy of the (iTaukei Lands) Act (ss 6, 7, 16(1)) is that all disputes between iTaukei Fijians concerning iTaukei 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 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 that the "iTaukei 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".

[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.

CONCLUSIONS

[9] I come to the same conclusions in this case for the same reasons and therefore dismiss this action as well.

[10] I am fortified by the observations of Sir Moti Tikaram PA to the same effect in civil appeal ABU 042 of 1998 from civil action HBC 394 of 1996 between the same parties over the same lease monies.

COSTS

[11] I make no order as to costs as is my usual practice in these sorts of matters.

ORDERS

[12] I therefore order as follows:

• (a) The plaintiffs' claim is dismissed for want of jurisdiction.
  
• (b) There is no order as to costs.
  

Sosefo Inoke
Judge