IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 049 of 2005L

BETWEEN:

RATU KALIOVA DAWAI Villager of Narewa Village, Nadi,
Plaintiff

AND:

THE NATIVE LAND TRUST BOARD a body corporate of 431 Victoria Parade, Suva.
1st Defendant

AND:

THE NATIVE LAND AND FISHERIES COMMISSION
a statutory body set up by law of Carnavon Street, Suva.
2nd Defendant

AND:

LAISE KACILALA DAWAI of 83 Verona Street, Government Quarters, Lautoka, Fiji, Clerical Officer the Administratrix of the ESTATE OF RATU NAPLIONI NAULIA DAWAI late of Nakavu Village, Nadi, Retired, Deceased, Intestate.
3rd Defendant

Appearances;
For the Plaintiff: Mr. I. Fa instructed by Fa & Co.,
For the 1ST Defendant: Ms. Fifita I., 
For the 2nd Defendant: Mr. R. Green,
For the 3rd Defendant by the Administratrix substituted: In person.
Date of Interlocutory Judgment: 5th September 2011.

INTERLOCUTORY JUDGMENT ON PRELIMINARY ISSUES

1)	By the Summons of 1st June 2010 the 2nd Defendant appearing by the Attorney General raised the following issues to be determined as preliminary issues pursuant to Order 33 Rule 3 of the High Court Rules (of 1988 as amended- Cap 13A);

1.	Does the Court have jurisdiction to deal with this matter?

2.	Is the purported installation of the Plaintiff as Tui Nadi a violation of the Consent Order granted by the Court of Appeal on 6th February, 1997. If the answer to the above question is in the affirmative, are the Plaintiff and his supporters in contempt of Court?

3.	Does the previous Native Land Commission proceeding bind the Plaintiff? Even if the Plaintiff was not a party to the previous proceeding.

Wherever in this judgment reference to NLC shall mean and include the iTaukei Lands Commission formerly known as the Native Lands Commission and reference to the Native Lands Act or the NL Act and Native Lands Trust Board shall respectively mean and include the iTaukei Lands Act (Cap 133) and iTaukei Lands Trust Board. 

2)	For convenience of logic I shall consider the said issues in reverse order. The 3rd issue raised sought to be determined as a preliminary issue under Order 33 Rule3 is;

“3. Does the previous Native Land Commission proceeding bind the Plaintiff? Even if the Plaintiff was not a party to the previous proceeding.”

3)	The said 3rd issue by itself, without a consequential issue or an “if so……” issue, does not determine this action. However if it was raised before the 1st issue and the 1st issue to be the resulting or “if so..” issue then the Court could deal with that issue in that context. Otherwise the 3rd issue by itself does not merit consideration as a preliminary issue under Order 33 Rule 3 of the High Court Rules 1988 as amended. 

4)	The 2nd issue sought to be determined under Order 33 R3 is;

“2. Is the purported installation of the Plaintiff as Tui Nadi a violation of the Consent Order granted by the Court of Appeal on 6th February, 1997. If the answer to the above question is in the affirmative, are the Plaintiff and his supporters in contempt of Court?”

5)	This 2nd issue too without an “if so___”- issue hangs in the air, and even if the Plaintiff is in contempt still it does not raise another issue or show how that could terminate or determine this action. In any event the Plaintiff is not a party to the consent order of the Court of Appeal, and Committal proceedings need to be commenced and concluded under Order 52 of the High Court Rules before this Court could answer that issue. Furthermore there is no notice placed before this court, of an application or notice to the Court of Appeal complaining of such contempt by the Plaintiff. The “installation” of Tui Nadi (ie of the Plaintiff) is disputed by the 3rd Defendant and though the 2nd Defendant admits paragraph 2 of the Statement of Claim which claims such installation it again disputes its validity as being “in clear breach of the consent order made by the Court of Appeal on 6 February 1997”. As such there is a dispute as to the installation of the Plaintiff to the title of Tui Nadi between Native Fijians as contemplated under section 17 of the Native Land Act. Such dispute is yet to be determined after an inquiry (after evidence) under section 17 of the Native Lands Act, according to the 2nd Defendant as sought by the 3rd relief of its Statement of Defence. However as observed above in respect of the 3rd issue, if the 2nd issue too was raised before the 1st issue and the 1st issue to be the resulting or “if so..” issue then the Court could deal with that issue in that context. Otherwise the 2nd issue by itself does not merit consideration as a preliminary issue under Order 33 Rule 3, as it does not by itself, determine this action.

6)	The 1st issue sought to be determined under Order 33 R3 is;

 “1.Does the Court have jurisdiction to deal with this matter?”

This is the only issue that warrants consideration, under Order 33 Rule 3, though by itself it lacks particulars. The Court cannot embark upon a voyage of discovery as to the meets and bounds of the local limits of its jurisdiction, examine every and various laws and their particular provisions, the Rules of Court and after an exhaustive search determine whether this Court has jurisdiction or not. The proponent of the issue needs to give particulars if they are admitted, or raise issue upon them and thereafter raise the issue on jurisdiction as a resulting or “if so..” issue. However assuming that the 2nd and 3rd issues are such issues, this Court can proceed to determine the 1st issue, however reminding counsel that Court could reject issues raised in an illogical order, as it would cause hardship and prejudice to the other parties as well, in meeting such issues. 
 
7)	Counsels do make the effort to grasp the facts of their client’s case as well as their opponents and raise the issues with reference to the law. It is no doubt a difficult task to think ahead of the trial and pre-empt the issues, but that is a skill that Counsel in civil actions do and need to master.

8)	Though the 1st issue is raised without particulars, however in their written submissions parties appear to be in agreement that it is on the basis that it is the NLC (2ND Defendant) that has exclusive jurisdiction to determine who is Tui Nadi under section 17 of the Native Lands Act, and not this Court.

9)	With those aspects in mind this court will look at section 17 of the NL Act and the relevant case law as follows;

SECTION 17 OF THE NATIVE LANDS ACT (CAP 133);

“17.-(1) In the event of any dispute arising between native Fijians as to the headship of any division or subdivision of the people having the customary right to occupy and use any native  lands, the Commission may inquire into such dispute and after hearing evidence and the claimants shall decide who is the proper head of such division or subdivision, and such person shall be the proper head of such division or subdivision:

Provided that if the claimants agree in writing in the presence of the Chairman of Commission as to who is the proper head of such division or subdivision it shall not be necessary for the Commission to hear evidence or further evidence as the case may be.

(2) On the conclusion of any inquiry held under subsection (1), the Chairman of the Commission shall inform the parties of the decision and shall transmit a copy of such decision to the scribe of the province in which the land belonging to such division or subdivision is situate and such decision shall be publicly read at the next meeting of the provincial council of that province.
(Inserted by Ordinance 11 of 1961, s. 2.)”

(3) A person aggrieved by a decision of the Commission under this section may appeal against it to the Appeals Tribunal constituted under section 7.
(Inserted by s 4 of Native Lands (Amendment) (Appeals Tribunal) Act 1998).”

10)	 The parties tendered the following “Authorities” with their written submissions;

1. Prasad v Attorney-General [1999] FJCA 52; Abu0058u.97s
(27 August 1999)

2. Palani v Fiji Electricity Authority [1997] FJCA 21; Abu0028.96 (18 July 1997)

3. Kavekini Varo and Apisai Seqatura v Iliaseri Varo, Anare Navutevute, Livinai Sokidrau, NLTB, ANZ Banking Group Ltd; Inoke J. [2010] HBC0234.08L (05 August 2010)

4. Ratu Kaliova Dawai v Native Lands and Fisheries Commission, Ratu Napolioni Naulia Dawai, A.G. of FIJI; Connors J [2005] HBJ004.05L (12 May 2005 

5. Ratu Isireli Rokomatu v Native Land & Fisheries & 4 Ors. [1997] FJCA Abu007.97s (06 February 1997)

6. Ratu Isireli Rokomatu v Native Lands and Fisheries Commission & 4 Ors. Lyons J. [1995} HBJ002/95L(04 December 1995)

7. Ratu Isireli Rokomatu Namulo v Josefa Saronicava Waqairatu & 5 Ors. Townsley J; [2000] HBJ0021.97L (16 March 2000)

8. Ratu Isireli Rokomatu Namulo v The Native Lands & Fisheries Commission & 4 Ors, Lyons J. [1997]HBJ0014.1995L (09 September 1997)

11)	Parties do not refer significantly or relevantly to the Prasad case and the Palani case (the 1st and 2nd in the above list of authorities) in their Written Submissions, and they do not arise out of any dispute to headship between native Fijians, and has little or no relevance to this case. 

12)	The 2nd Defendant appears to refer to the 8th case in the list above being the Ratu Isireli Rokomatu Namulo v The Native Lands & Fisheries Commission & 4 Ors , Lyons J. [1997] HBJ0014.1995L (09 September 1997) case as “Ratu Kaliova Dawai v Native Lands and Fisheries Commission, Ratu Napolioni Naulia Dawai & Attorney General JR No. 14/95L” in the 2nd Defendants List of Authorities. Though it may be a typographical error the significance of noting same is that the first case regarding the dispute as to the headship between the Plaintiff Ratu Kaliova Dawai and the 3rd Defendant Ratu Napolioni Naulia Dawai was the 2005 case of Ratu Kaliova Dawai v Native Lands and Fisheries Commission, Ratu Napolioni Naulia Dawai, A.G. of FIJI; Connors J [2005] HBJ004.05L (12 May 2005), and not the JR No. 14/95L case.

13)	The 5th , 6th ,7th and the 8th case cited in the above list (prior to 2005) are regarding the dispute as to headship of Tui Nadi between Ratu Isireli Rokomatu Namulo (not a party to this action) and the 3rd Defendant in this case Ratu Napolioni Naulia Dawai. 

14)	The 4th to 8th cases cited and listed above were not cited so as to be authorities to be followed on a point of law or to be persuasive of a legal argument but to establish a alleged position of fact such as, that either the Court of Appeal has quashed the appointment of the 3rd Defendant as the Tui Nadi or that the Court has directed the headship to be determined by the NLC. For the Court to proceed on such a basis of fact it must be proved and established by leading the relevant judgments in evidence or acceptable copies of same should be submitted to Court with the agreement of parties. Some of the copies of such judgments submitted to Court especially by the 2nd Defendant with its written submissions bundled as ‘List of Authorities’ are photocopies in which even the case number is not clear. The burden of proof is on the party that alleges those facts, and a party proposing preliminary issues must have those facts either agreed or established, in the record. As such even on that same basis, the Court cannot proceed to determine the case on the alleged fact that the 3rd Defendant was not the Tui Nadi or that the Plaintiff is, without the said judgments and orders and the proceedings being led in evidence at the trial. The Plaintiff has not tendered any judgment or order of a Court of Law or determination of the NLC to prove and establish that he is the Tui Nadi, or that the 3rd Defendant is not the Tui Nadi during the relevant period, which of course the Plaintiff may yet do at the trial. The Plaintiff is not seeking summary judgment nor is he raising preliminary issues though by a typographical error the Plaintiffs written submissions at page 1 refer to the preliminary issues as raised by the Plaintiff. Therefore there is no burden, call or need for the Plaintiff to provide, prove or agree to such acceptable copies of such orders or judgments at this stage in determining preliminary issues, as it is for the 2nd Defendant to do so. However at least it seems to appear from the alleged copies of the consent order of the Court of Appeal as well as of the several orders of the High Court and upon the common basis of the written submissions of parties, that the dispute as to Tui Nadi is directed by the Court of Appeal as well as the High Court to be determined by the NLC. 

15)	According to the copy of the order of Judge Connors in Ratu Kaliova Dawai v Native Lands and Fisheries Commission, Ratu Napolioni Naulia Dawai, A.G. of FIJI; Connors J [2005] HBJ004.05L (12 May 2005), submitted by parties Connors J appears to have ordered thus;

“The Orders of the Court therefore are:

1. Leave is granted to apply for Judicial Review.

2. The 1st respondent be restrained from commencing any Commission of Inquiry or continuing any Commission of Inquiry already commenced for the purposes of determining the holder of the title Tui Nadi until further Order of the Court.”

16)	Yet again in the same case, according to the Plaintiffs written submissions at paragraph 3.6, the following orders were allegedly made of consent;

“1. Composition

1.1	The two disputants would each nominate a member for appointment as Commissioners.

1.2	The Minister would appoint a Chair who must be qualified to be a judge or must be otherwise suitable by virtue of his academic or other qualifications and experience.

2.Terms of Reference

2.1 To determine according to the customs of the Vanua of Nadi who is the rightful holder of the title of Tui Nadi.

2.2 Each disputant to be accorded natural justice in presenting his case or responding to the others case.”

17)	The said case is between the Plaintiff, the 2nd Defendant and the 3rd Defendant and as such is binding between them. The 1st Respondent referred to therein is the 2nd Defendant the NLC in this case. The only additional party in this case is the Native Lands Trust Board which is the 1st Defendant. The 1st Defendant has no part to play in determining the headship of Tui Nadi and moves with the 2nd Defendant in their submission that the Tui Nadi is yet to be determined by the NLC. If such a consent order exists it is that order that ought to have been referred to in the 3rd issue, unless there is no such consent order or the 2nd Defendant is not aware of such an order. 

18)	Therefore the Plaintiff at least is bound by the consent order allegedly made according to the Plaintiff in Ratu Kaliova Dawai v Native Lands and Fisheries Commission, Ratu Napolioni Naulia Dawai, A.G. of FIJI; Connors J [2005] HBJ004.05L, for the NLC to determine according to the customs of the Vanua of Nadi who is the rightful holder of the title of Tui Nadi. It is not clear whether the 2nd Defendant the NLC had consented to the said order, however if they have then there would be no difficulty in the NLC complying with the terms of reference therein and determining as to who is entitled to the title of Tui Nadi. Nevertheless the parties to the said case including the Plaintiff and the 2nd Defendant have failed to do so. Though the Plaintiff in his written submissions do not state when the said consent order was entered, it appears as if a considerable period of time has lapsed since then. It should be noted that though the 2nd Defendant may follow the terms of reference therein it does not mean that the 2nd Defendant has to do that in each and every case thereafter, as such terms allegedly consented is applicable to that case only. However the term for parties to nominate a Commissioner each, in such “consent terms” alleged to have been entered before Connors J, if not agreed to by the appointing Minister, may well be an incursion in to the powers and functions of the Minister concerned. 

19)	Given the fact that according to the Plaintiffs own written Submissions as aforesaid, the Tui Nadi is yet to be determined by the NLC, the Plaintiff would be clearly in breach of the terms of the alleged consent order in claiming to be appointed or installed as the Taui Nadi when in fact so far according to the Plaintiffs own submissions the NLC has not heard the dispute referred of consent by Connors J and as such the Tui Nadi is yet to be appointed. Therefore this Court is compelled take the view on the admitting submissions of the Plaintiff that the Plaintiff is not (yet) the Tui Nadi, but a claimant to that title.

20)	In Satala  v Bouwalu [2008] FJSC 20; CBV0005.2006S (13 October 2008) the Supreme Court observed thus at paragraph 32 therein;

“[32] In our judgment the power in s 17(1) was not conferred for the purpose of enforcing a right, meaning in this context, a private right: Julius v Lord Bishop of Oxford (above) at 235, 243, 244. A claimant to a Fijian title does not have a private right, he only has a claim to such a right.” (Referring to section 17(1) of the Native Lands Act).

21)	Therefore the Plaintiff at the most has only a claim to a right. The Plaintiff as yet does not appear to have a right to give him a locus standi, he only has a claim to such a right. However the Court cannot decide on locus standi as no such issue is raised and the Plaintiff is deprived of the opportunity to respond not to mention the need to lead in evidence acceptable copies of proceedings and determinations before the NLC and the other judgments and orders of Court. 

22)	Therefore it now remains for this Court to determine whether this Court has the jurisdiction to determine whether; 

1. 3rd Defendant was the Tui Nadi during the relevant period, 2. Whether the Plaintiff is Tui Nadi now, 
 
23)	In the Judgments of my brother judge in Lautoka his Lordship Judge Inoke in- JOSUA NAIMILA and EPELI BUKADOGO –vs- ROGOLEA APISALOME,NLTB, Permanent Secretary Lands and A.G- Civil Action No: HBC 187 of 2009L, and in State v Native Lands Appeals Tribunal [2009] FJHC 164; HBJ 2 of 2009L (14 August 2009) , His Lordship examined the jurisdiction of the High Court to intervene in making those determinations that the legislature has seen fit to be entrusted to the NLC and the Native Lands Appeals Tribunal, and held that the High Court had no Jurisdiction to do so. In the State v Native Lands Appeals Tribunal [2009] FJHC 164; HBJ 2 of 2009L (14 August 2009) case Inoke J observed as follows;

“Only in the clearest of cases should the Court interfere. The facts in the Buli Raviravi case was one of those cases although Fatiaki CJ stated that all the applicant needed to show was a "prima facie reviewable error". I would prefer to adopt what Byrne J said in State v Native Lands Commission No 2, Ex parte Koroimata [1997] FJHC 49; [1997] 43 FLR 102 (23 April 1997), that the Court should review if the decision is ‘tainted by the most obvious bias or failure to accord to the parties a fair hearing’. Each case therefore must be determined on its facts. To do otherwise would go against the clear words and intention of s 7(5) of the Act that all matters of Fijian customs and traditions are best left to the Fijians, who know their customs and traditions best, to decide. This does not, in my view, go against the judgments in this Court, the Court of Appeal or the Supreme Court.”

Inoke J further stated quoting Chief Justice Tuivaga,;

 “16. The history behind s 17 of the Act was explained by Tuivaga CJ in Bulou Eta Kacalaini Vosailagi v Native Lands Commission [1989] FJHC 53 as follows:

“It is probably true to say that the Ka Levu dispute, saddening as it is for all concerned, would not have arisen if customary law relating to chiefly succession was in place. Disputes over headship of Yavusas have been a common feature of the Fijian chiefly system since the Cession. This trend was responsible for the amendment of the Act in 1961, which introduced Section 17 to the general law of Fiji. In moving the amendment Bill in the Legislative Council, the law-making body at the time, the then Chairman of the Commission (Mr. J.S. Thomson) explained its purpose as follows:-

"The purpose of this Bill is to give the necessary authority to the Chairman of the Native Lands Commission to settle disputes that may be referred to him by land owning units or groups of land owning units over the headship of the units. Disputes of this nature have been referred for some years now to the Native Lands Commission and these have usually been settled after discussion. There are, however, some disputes which cannot be settled by conciliation methods. Unfortunately, these appear to be becoming more common. In many cases, large sums of rent moneys from the leasing of Native Lands are involved, and in such cases the Chairman of the Native Lands Commission is asked by the disputing parties to decide on the question of the headship of the unit involved. At the moment, Sir, he has no legal authority to settle disputes. The reason for the proposal to vest the necessary authority in the name of the Chairman of the Native Lands Commission is that in recording the ownership of Native Lands and the membership of the various land owning units in the Colony the Native Lands Commission has recorded the history of every yavusa in Fiji (the yavusa being the basic social unit in Fijian Society).

The Commission has also recorded the names of the leaders of those units. Those records are in the custody of the Chairman of the Native Lands Commission. It is customary practice for the units to choose their own leader; normally the units choose the nearest agnate descendants to the founder of the unit.

This Bill does not seek to change that practice. It is only in cases where a dispute exists that the Chairman of the Native Lands Commission will decide on the headship of the units involved. He will reach that decision on the basis of the evidence which is available to him from the records in his custody. There are some disputes outstanding, awaiting the passing of this Bill." (see Fiji Legislative Council Debates, 1961 page 72)...”(underlining mine)

 “20. Notwithstanding such reservations as voiced by Tuivaga CJ in the Bulou Eta case, the Parliament saw fit to enact the 1998 amendment to the principal Act in the Native Lands (Amendment) (Appeals Tribunal) Act 1998, which not only gave jurisdiction to the Tribunal to hear appeals from Commission decisions under s 17 but made the decisions of the Tribunal “final and conclusive and cannot be challenged in a court of law”. This is exactly the same wording that was in s 100(4) of the 1990 Constitution.”

 “21. Thus, the 1998 amendment of the Native Lands Act re-enacted the same law that was in s 100(4) of the 1990 Constitution."

 "22. The current position is that by virtue of s 2 of the Fiji Existing Laws Decree 2009, the existing laws in force immediately before 10 April 2009 continued in force and shall be read with such modifications, adaptations, qualifications and exceptions as may be necessary. The abrogation of the 1997 Constitution on 10 April 2009 therefore had no effect on the law in this area."

"76. Before closing I wish to respectfully restate to the parties and to remind them of the wise counsel of Chief Justice Tuivaga in the Ka Levu case where His Lordship said:"

"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." 

24)	The principles of natural justice was not invented but discovered. Such principles existed in ancient as well as recent systems of justice in the Asian and other regions. In the not too distant past about two centuries ago noblemen and gentleman settled their disputes by duel. Being equally tutored and skilled in swordsmanship or marksmanship the test was not as to who was the better skilled but which of the two had the unwavering courage of his convictions which gave him the advantage in mind. In the midst of a duel if one were to propose that both gentleman stay the duel and submit written submissions, it is highly likely that both disputants in outrage could turn their weapons on the proponent! When the disputants are not of equal skill or up bringing such forms of dispute resolution was abandoned due to the obvious disparity in skill. Equally there could very well be traditional and customary forms of dispute resolution elsewhere that to the disputants is justice. The "vei sorosorovi" refered to by Chief Justice Tuivaga which required a "huge helping of magnanimity wisdom and understanding" is yet another facet of justice perhaps still to be discovered by the world. 

25)	As much as various nations have differing laws and procedure, even within one nation the laws and procedure could vary as in the United State of America from state to state. Procedures and systems of dispute resolution as well as the law differed virtually from port to port till the United Nations and other regional organizations encouraged standard procedures. Many commonwealth countries have permitted and even encouraged the application of customary law and procedure that at times varied with common law concepts, and as such even recognized and applied by the Privy Council. 

26)	This Court is in agreement with the observations of Justice Singh in Neori Tabua v. The Native Land and Fisheries Commission[ HBC 518/03] that " The Court cannot usurp the functions and duties vested in a statutory body by the parliament" subject to the aforesaid and following observations of this Court. 

27)	If not for section 17 of the NL Act, and the NLC given the statutory function of deciding disputes as to headship between native Fijians after hearing evidence from both sides, it is worth noting that the Court may otherwise, act under Order 36(HC Rules) and refer the issue to be determined by a special referee, and as such the action could continue after receiving the report of the special referee and proceed to its conclusion, as observed by Order 36 Rule 2(1); … " further consideration of the cause or matter shall stand adjourned until the receipt of the report.."

28)	However this Court is not the proper forum to determine who is the Turaga Tui Nadi or who is not when the dispute is between two Native Fijians as per section 17 of the NL Act, and as such may not be a matter that could be delegated under Order 36, except when the dispute is not between native Fijians and not as claimants to a headship.

29)	It is clear that it is the NLC (2nd Defendant) that has the statutory power to decide a dispute as to Tui Nadi and not this court. This Court cannot by declaration appoint anyone as Tui Nadi. The Statute has by express provision allocated that function to the NLC.

30)	Once the NLC decides and installs a person as Tui Nadi, then and only then can Court recognize that person as a Tui Nadi. It is not for this Court to determine whether or not –A- or –B- is Tui Nadi. It is a dispute to be decided by the NLC as per Native Lands Act (Cap 133-) -provision 17. The dispute is obviously –arising between native Fijians (the Plaintiff and the 3rd Defendant) as to the headship- as set out in Section 17.

31)	For the Plaintiff to succeed in this action or at least maintain it, he has to establish that he has a locus standi ie, that he has an interest in the monies that he alleges have been paid out "unlawfully" and that the 3rd Defendant was not the Tui Nadi. Unless the Plaintiff alleges that someone else other than 3rd Defendant was the Tui Nadi for that relevant period duly decided or recognized by the NLC, it is not for this Court to determine whether the 3rd Defendant was or was not the Tui Nadi, as that, is a function of the NLC as aforesaid. There is no determination or order of the NLC before Court that 3rd Defendant is not the Tui Nadi or that someone else is. However both sides appear to be in agreement, that, the NLC has determined that the 3rd Defendant is Tui Nadi though challenged by way of Judicial Review or Writ before the Courts and the matter referred back to the NLC to determine who is the Tui Nadi. So far no reference is made by parties to any determination having been made by NLC, that 3rd Defendant is not the Tui Nadi or that some other person is. However as an issue as to locus standi has not been taken distinctly and clearly this Court shall make no finding as to the Plaintiffs locus standi. 

32)	However, on the other hand, if a competent Court has set aside the appointment of 3rd Defendant as Tui Nadi by the NLC, and if such order has survived without challenge, then, there is a situation that this Court may have to recognize, that, the 3rd Defendant is not the Tui Nadi as per such an order and the Plaintiff may maintain the action though that by itself may not entitle him to succeed in this action, as he must also show his locus standi, which according to him is his "appointment" as Tui Nadi which is disputed by the parties. Yet again that is a dispute that needs to be decided by the NLC.

33)	The previous orders of Court and of the Appeal Court submitted by parties are photocopies, and parties, variously interpret the orders therein. However, it appears to be common ground in submissions that the Court of Appeal too has entered a settlement to refer the dispute as to Tui Nadi to be determined by the NLC. This Court too is of the view that a dispute as to Tui Nadi should be determined before the NLC, and that this Court has no jurisdiction to determine whether a person is Tui Nadi or not when the dispute is between native Fijians. According to the 2nd Defendants tenor of submissions the Court of Appeal has only referred the dispute to the NLC and it has not set aside the determination or appointment of the 3rd Defendant as Tui Nadi by the NLC. The Plaintiff appears to submit otherwise. To decide which of the submissions is true, and to determine such a question of fact, the orders and proceedings before the Court of Appeal needs to be led in evidence before this Court or tendered by agreement. 

34)	Without the determination of the NLC as to who was the Tui Nadi, during 1994 to 2000 and thereafter till the institution of this action, it is futile for this Court to proceed to trial in this action.

35)	The Plaintiffs action depends –partly- on the questions whether the 3rd Defendant was not the Tui Nadi, and whether the Plaintiff is the Tui Nadi, questions that when in dispute, only the NLC can by statute determine, and as such, matters which this Court has no jurisdiction to determine.

36)	However, once the NLC determines, whether the 3rd Defendant was the Tui Nadi or not during the alleged relevant period of 1994 -2000, then and only thereafter can this Court determine whether the monies said to be about $700,000/ ($726,480/81)- has been paid out to 3rd Defendant "unlawfully". The NLC may not be able to and would not have the jurisdiction to determine whether the monies were paid out unlawfully or not but this Court certainly has the jurisdiction, to determine whether monies have been paid out unlawfully or not. Whether a payment is unlawful or not may yet again depend on whether the payments were made as entitled to the person holding the title or to the person performing the functions of that title. In other words, whether the payment is made as remuneration, as an award or as a share. Therefore there is still a trial to be had even after determination of the disputes by the NLC. 

37)	However on the question of jurisdiction the issue is whether the NLC has exclusive jurisdiction over all the issues before this court. It is clear that though the NLC may have exclusive jurisdiction -or more appropriately that the NLC may be the proper forum- in respect of some issues, the NLC may well have no jurisdiction over the other issues such as to determine whether payments are "unlawful".

38)	Section 17 gives the NLC the discretion in the use of the words "..the Commission may inquire in to such dispute .." that is usually bestowed on a Court or Tribunal, with the subsequent words; "..and after hearing evidence and the claimants, shall decide who is the proper head of such division or subdivision.." makes the decision of the NLC a judicial decision, and the further use of the words; "…and such person shall be the proper head of such division or subdivision", gives the NLC the exclusive statutory power to decide who shall be the proper head of such division or sub division, to the exclusion of any other. If the Court proceeds to decide in a given dispute (between native Fijians) as to who ought to be or who is the person entitled to such headship, any dissatisfied party or another could again refer the dispute to the NLC under section 17, exposing the Court to embarrassment. The 2nd Defendant and the 3rd Defendant at paragraph 2.2 of their written submissions state that a dissatisfied party to a decision of the NLC has the right of Appeal to the Native Lands Appeal Tribunal, and the 3rd Defendant cites the Satala v Bouwalu [2008] FJSC 20; CBV0005.2006S (13 October 2008) case in support, as section 7 of the said Act makes no reference to section 17. However section 4 of the Native Lands (Amendment) (Appeals Tribunal) Act 1998 has introduced subsection 3 to section 17 to the effect that; "(3) A person aggrieved by a decision of the Commission under this section may appeal against it to the Appeals Tribunal constituted under section 7", as set out in the State v Native Lands Appeals Tribunal [2009] FJHC 164; HBJ 2 of 2009L (14 August 2009) case, further cementing the exclusive jurisdiction of the NLC in such matters. (This Court noted however, the section 17 of the Native Lands Act quoted by the parties in their written submissions did not carry subsection 3 to the said section 17.)

39)	 Be that as it may the decision of the Appeals Tribunal was declared to be final and conclusive by the NL Act at section 7(5), and as per section 7(4) of the Native Lands Act; "If no notice of appeal is given the record of the Commission or commissioner, as the case may be, shall be final." Therefore the exclusive jurisdiction of the NLC in determinations under sections 6, 16, and 17, (subject to Appeal to the Appeals Tribunal) is provided by statute. The Act provides and requires grounds of appeal to be set out before the Appeals Tribunal with additional provision to hear further evidence. Therefore the Appeals Tribunal is invested with more jurisdiction than would a Court exercise in Judicial review, as the same grounds and more can be urged before the Appeals Tribunal.

40)	Part of the Plaintiffs cause of action that alleges that the 3rd Defendant was not the Turaga Tui Nadi and that the Plaintiff is the Turaga Tui Nadi are in dispute and as they are between native Fijians that part of the cause of action falls to be decided before the NLC, and the other part of the cause of action that alleges that the monies were unlawfully paid to the 3rd Defendant remains to be decided by this Court. 

41)	The jurisdiction to decide such matters conferred by the statute on the NLC gives exclusive jurisdiction which even the parties cannot displace rendering this Court with a patent lack of jurisdiction to decide such disputes under such circumstances.

42)	The element of survivability of part of the Plaintiffs claim being that the monies were paid out unlawfully restrains this Court from dismissing this action on the ground of patent lack of Jurisdiction.

43)	Though this action was filed in 2005 the dispute appears to be much older, though not necessarily between the same parties, going back to 1995 regarding the Tui Nadi headship. Therefore it is in the interest of justice that such disputes are brought to a hearing and concluded as early as possible. To that end parties must without further delay proceed to the proper forum to determine the dispute as to Tui Nadi as set out above.

44)	On the 11th December 2009 parties have in the attendance slip of that day informed Court that "FRESH DISPUTE HAS BEEN FILED IN THE NLC TRIBUNAL" and sought a long mention date, and the Court referred this case to the Master for such purpose. Almost 2 years from that date the parties (the Plaintiff especially) have failed to so refer or proceed to obtain a decision of the NLC.

45)	It is the Plaintiff who has filed this action. It is for the Plaintiff to prosecute his case. The burden is on the Plaintiff to lay before the Court his locus standi. It is for him to prove to Court the first part of his cause of action to wit that the 3rd Defendant was not the Tui Nadi and that he is, both matters being in dispute. 

46)	There is more smoke than fire in this case, which is not unusual in some cases involving substantial sums of money, much of that smoke created by reference to various orders made in various actions with reference to the dispute, being to the Headship of Tui Nadi. Though the Courts have from time to time made incidental and supervisory orders the decision as to Tui Nadi has been left to the NLC consistently at least since 1996 according to the copies of such orders tendered. Though the NLC is the 2nd Defendant in this action, it is on a reference under section 17 and by the consequent appointment of a Commissioner or Commissioners that the 2nd Defendant can make a determination as the NLC and not in its status as a party to this action. 

47)	Therefore for the aforesaid reasons the suggested preliminary issues 1-3 are answered as follows;

1.	Does the Court have jurisdiction to deal with this matter?
 Answer; This Court has jurisdiction to determine whether payments were made unlawfully or not, however this Court does not have jurisdiction to determine whether the Plaintiff is Tui Nadi or the 3rd Defendant was or was not a Tui Nadi on such matters being in dispute between Native Fijians the Plaintiff and the 3rd Defendant, in view of section 17 of the Native Lands Act. 

2.	Is the purported installation of the Plaintiff as Tui Nadi a violation of the Consent Order granted by the Court of Appeal on 6th February, 1997. If the answer to the above question is in the affirmative, are the Plaintiff and his supporters in contempt of Court?
 Answer; The consent order of the Court of Appeal referred to is not proved or copy tendered of agreement to Court. Court cannot make a finding as to contempt of Court without Committal proceedings under Order 52 of the High Court Rules. This issue does not qualify to be a preliminary issue. As such issue reserved to be answered at the end of Committal proceedings and the trial.

3.	Does the previous Native Land Commission proceeding bind the Plaintiff? Even if the Plaintiff was not a party to the previous proceeding.
 Answer; Proceedings referred to are not proved or tendered of agreement to Court. Does not qualify as a preliminary issue. As such issue reserved to be answered at the end of the trial. 

48)	As such under Order 33 Rule 3 of the High Court Rules the following matters in dispute needs to be decided upon reference by the Plaintiff to the NLC and decided upon by the NLC before the Court proceeds to trial on the other issues in this case;

1. Was the 3rd Defendant the Turaga Tui Nadi?

2. If so what was the duration or periods within which the 3rd Defendant was the Turag Tui Nadi?

3. Is the Plaintiff the Turaga Tui Nadi?

4. if so from when, or for what duration or periods of time?

49)	As such this case shall stand adjourned till the Plaintiff refers the aforesaid issues in dispute to be determined by the NLC, as it would be manifestly unjust to expect the Defendants to wait indefinitely till such reference is made to the NLC by the Plaintiff, it is further directed that unless the Plaintiff refers the said matters in dispute to the NLC within 3 months OF THIS ORDER and submits to Court with notice to all parties to this action, proof of such reference, the Plaintiffs action shall stand struck out and dismissed. On the Plaintiff referring the said dispute and tendering proof of such referring, the Plaintiff and the 2nd Defendant is further directed to communicate the decision of the NLC with an ENGLISH TRANSLATION within 9 months of this order or seek further time for the said purpose or for the purpose of appeal to the Native Lands Appeals Tribunal by either party and failing such application by the Plaintiff or any party on or before the expiry of 9 months from the date of this order the Plaintiffs action shall stand struck out and dismissed. In the event of this action being struck out as aforesaid Defendants to be entitled to costs to be taxed on the standard basis. 

50)	It is further ordered that the aforesaid reference to the Native Lands Commission under section 17 shall as far as possible be in compliance with the terms of reference if any of any previous orders of consent in previous actions between the Plaintiff and the 2nd and 3rd Defendants. This application is the result of lapses on the part of all parties, and as such they should bear their costs in respect of this current interlocutory application.

Orders on interlocutory judgment;

a. this case shall stand adjourned till the Plaintiff refers the following issues in dispute to be determined by the NLC;

1. Was the 3rd Defendant the Turaga Tui Nadi?

2. If so what was the duration or periods within which the 3rd Defendant was the Turag Tui Nadi?

3. Is the Plaintiff the Turaga Tui Nadi?

4. if so from when, or for what duration or periods of time?

b. that unless the Plaintiff refers the said matters in dispute to the NLC within 3 months OF THIS ORDER or within a time period extended by order of Court, and submits to Court with notice to all parties to this action, proof of such reference, the Plaintiffs action shall stand struck out and dismissed. 

c. On the Plaintiff referring the said dispute and tendering proof of such referring, the Plaintiff and the 2nd Defendant is further directed to communicate the decision of the NLC with an ENGLISH TRANSLATION thereof within 9 months of this order or seek further time for the said purpose or for the purpose of appeal to the Native Lands Appeals Tribunal by either party and failing such application by the Plaintiff or any party on or before the expiry of 9 months from the date of this order and thereafter from time to time as allowed by order of Court the Plaintiffs action shall stand struck out and dismissed. 

d. It is further ordered that the aforesaid reference to the Native Lands Commission under section 17 shall as far as possible be in compliance with the terms of reference if any of any previous orders of consent in previous actions between the Plaintiff and the 2nd and 3rd Defendants. 

e. In the event of this action being struck out as aforesaid Defendants to be entitled to costs to be taxed on the standard basis. 

f. Parties to bear their costs in respect of this application. 

Hon. Justice Yohan Fernando.
JUDGE.
High Court of Fiji

At Lautoka
5th September 2011.