IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

JUDICIAL REVIEW NO 02 OF 2008

IN THE MATTER of an application made by TANIELA NAIKA VARO for a Judicial Review under order 53 of the High Court Rules 1988.

AND IN THE MATTER of a purported exercise by the Native Land Commission of Powers under Section 21 of the Native Lands Act.

THE STATE and THE NATIVE LANDS COMMISSION
First Respondent

ILAMI MALI for and on behalf of himself and his children Taniela Vulako Naika, Tamalesi Kula Bogidrau and Seeima Melrose Neimate all of Sabeto in the Province of Ba.
Second Respondent

EX-PARTE TANIELA NAIKA VARO of Narokoroyawa, Sabeto in the Province of Ba, Turaga ni Mataqali for and on behalf of Mataqali Drakoro.
Applicant

FINAL JUDGMENT

Judgment of : Ms Dias Wickramasinghe J.

Counsel : K. Vuataki for the Plaintiff
 R. Green for the Defendant

Solicitors : Vuataki ESQ for the Plaintiff
 AG’s Office for the Defendant

Date of Judgment : 8 December 2011

Keywords: VKB, s 10(2) of the Native Lands Act; Judicial Review

 INTRODUCTION
[1]	This is an application for Judicial Review of a decision of the Native Lands Commission (currently known as I Taukei Commission) dated 5 November 2009, wherein the applicant is seeking to review the decision of the Commission registering Ilami Mali under his father’s tokatoka Nabousakiki.

[2]	At the commencement of the hearing there was an issue whether this court has jurisdiction to determine the matter. After due consideration I concluded in my interlocutory judgment dated 8 December 2010 that I had jurisdiction to hear the matter. I will now consider the merits of the application.

BACKROUND 

[3]	The primary issue relating to this judicial review application is centered on the several registrations and deregistration of Ilami Mali, in the Vola Ni Kawa Bula (VKB). 

[4]	Ilami Mali’s mother-Ane Naqani was registered in the VKB under Totatoka Taladrau, and his father- Simeli Tubaleima in the VKB under Tokatoka Nabousakiki. 

[5]	Ilami Mali was first registered in his mothers VKB on the basis that the father was unknown. Subsequently, based on an affidavit deposed to by the mother disclosing the father’s identity, he was later registered under his father’s VKB in 1991. However, in 2001, the Commission removed Ilami Mali’s name once again from the father’s Tokatoka and reconfirmed him under his mother’s Tokatoka. 

[6]	It appears that the Commission's decision of 17 December 2001 (Exhibit "TVN4") was communicated to the parties only by letter dated 31 October 2007, i.e. after five years, as shown in Exhibit "TVN5". The reason for the delay is not evident from the documents before me, nor has it been explained by the parties. 

[7]	Thereafter, once again on 13 November 2007, Ilami Mali was deregistered from the mother’s Tokatoka and transferred back to the father’s Tokatoka. The Commission reconfirmed the registration by its letter dated 29 November 2009. 

LEGAL MATRIX

[8]	The applicant seeks several declarations, but at the hearing informed court that he would only pursue the reliefs sought in paragraphs (iii), (iv), (vi), and (vii) as set out below. 

 (iii) A DECLARATION that Native Land Commission was functus by its decision of 17th December 2002 in deregistering Ilami Mali as a member of Tokatoka Nabousakiki and had no authority to re-register Ilami Mali on 13th day of November 2007 as a member of Tokatoka Nabousakiki and Mataqali Drakoro.

(a)	A CERTIORARI to quash the decision of the Respondent to register Ilami Mali and his children, Sereima Melrose Neimate, Temalesi Kula Bogidrau and Taniela Vulakoro Naika as members of Tokatoka Nabousakiki and Mataqali Drakoro.

(vi) FURTHER DECLARATION AND OR ORDERS or other reliefs as to the Court may deem just and expedient.
 (vii)Costs of this action.

[9]	 Section 8 of the Native Lands Act requires the Commission to maintain a Register of Native Lands, whereas section 9 of the Act requires the Commission to record the names of the persons comprising the proprietary unit of the native land in the VKB, where the Commission had decided ownership of the Fijian lands.
 
[10]	Section 21 of the Native Lands Act permits the inclusion of the names of illegitimate children in the VKB of either of the mother or of the father as seemed just and equitable.

[11]	Section 10(1) requires the Commission to transmit the register to the Registrar of Titles to preserve the 'Native Land Register' and section 10 (2) empowers the Commission to Order the Registrar to correct, add or delete the names during eventualities stated therein. 

[12]	It is in this Vola Ni Kawa Bula traditionally referred to as VKB- that the Commission has been making orders one after another registering and deregistering the name of Ilami Mali between mother's Tokatoka and father's Tokatoka.

[13]	 Section 10(2) of the Native Lands Act reads as follows:

"10(2) When it is found that an error has been made in the preparation of such register or that any Fijian has been recorded and registered in any proprietary unit other than the proper unit or that the name of any Fijian has been inadvertently omitted from the register recording the proper unit of such Fijian, it shall be lawful for the Registrar of Titles on the receipt of an order under the hand of the chairman of the Native Lands Commission to correct the same or delete or add the names of such persons as the case may be".

[14]	According to the aforesaid section, the 'Native Lands Register' could be amended only on three separate instances, viz:

(a) In the event of an error;

(b) If a Fijian has been recorded and registered in a different unit than the proper unit; and

(c) If a Fijian is inadvertently omitted from the Register.

[15]	The procedure that should be followed in maintaining the VKB is laid down in 'Instructions as to entries in the Register of Native Lands Owners' dated 30 September 1926 issued by the then Governor of Fiji, Eyre Hutson, under reference MP 4089/26. (Order) In my interlocutory judgment dated 8 December 2010, I had set out most of the paragraphs of the said Order, and I do not wish to reproduce the Order at lengh except - some of the relevant paragraphs.

[16]	Paragraph 3 of the Order of the Governor, sets the foundation for the registration in the VKB, which is based on the information maintained in the Register of Births and Deaths. It explicitly prohibits obtaining information from any other source whatsoever for its registration.

[17]	Paragraph 6 and Paragraph 7 stipulate the manner in which the children of illegitimate birth should be registered when the father is known or unknown. When father is known, the illegitimate child should be registered under the father's Tokatoka whereas when the father is unknown then the registration should be done in mother's Tokatoka. 

The application for judicial review

[18]	Let me now determine whether in this application for Judicial Review, the Commission had followed the above statutory and the basic administrative principles when making the decision to register Ilami Mali. 

[19]	The applicant provided two birth certificate of Ilami Mali containing registration no 1145 and another containing registration no 914.

[20]	The respondent sates that birth certificate no 1145 of Ilami Mali, which did not have father's particulars, was amended on 22 February 2002 under s.16 of the Births, Death and Marriages Registration Act (Cap 49]. Ilami Mali's father IIsemeli Tubailima and his mother Ane Naqani, had sworn a joint affidavit deposing fathers particulars and consequently, the second Birth Certificate No 914 was issued on 1 March 2002 with the father's particulars. 

[21]	The respondent also states that before deposing the affidavit IIsemeli Tubailima had adhered to the tradition protocol of seeking forgiveness of Mali's mother's mataqali.  He had also performed the traditional ceremony of the Ilakovi i.e. requesting the elders of his mother's mataqali to consent to Mali being registered under his Tokatoka.  The respondent states that this is significant in the sense that Mali's mother's mataqali traditionally brought Mali to his father's mataqali.  I am mindful that there are many Fijian traditions that are in existence and often courts have taken judicial notice of those traditions. 

[22]	However, the Order made by the Governor relating to registration of persons in the VKB is explicit, that the registration in the VKB can be based only on a birth certificate. 

[23]	The first birth certificate of Ilami Mali depicts the father's name as unknown and the Commission correctly registered Ilami Mali under the mother's Tokatoka. However after the subsequent amendment to the birth certificate, the father's name was included and the VKB was thereafter amended to include Ilami Mali under the father's Tokatoka. In my judgment, both these acts are correctly performed in accordance with the law- section 10(2) of the Native Lands Act read with the Order of the Governor. I am mindful that there are other registrations and de-registrations in between. However, due the last registration that has been correctly decided, any future consideration of the in between registrations would only become academic. 

[24]	The applicant says that when the Commission took its decision of 17 December 2002 it is functus in deregistering Ilami Mali as a member of Tokatoka Nabousakiki and had no authority to re-register Ilami Mali on 13 November 2007 as a member of Tokatoka Nabousakiki. In my opinion, the applicant's contention is fundamentally flawed. 

[25]	The Commission is established under the Native Lands Act and it exercises statutory powers as a quasi-judicial body, when registering names in the VKB. Section 10(2) of the Native Lands Act empowers the Commission to take corrective measures in any of the three instances stated therein. This clearly envisages that the Commission could change its decision to update the VKB. Therefore, the applicant's argument that the Commission is functus after its first decision has no basis.

[26]	The applicant also argues that the Commission cannot amend its decision under the principles of res judicata and cites Sunbeam Transport Ltd v Pacific Trasport Ltd [1995] FJCA 19. However, that case can easily be distinguished from the present case because the facts in that case are totally different when compared with the facts of the present case. 

[27]	Whilst I agree that quasi judicial decisions could be changed only in limited circumstances such as fraud or similar instances, the dictum in that case would not apply when a quasi judicial body exercise statutory powers to give effect to procedural matters such as registering Fijian citizens in the VKB. In the instant case, it is the statute that empowers the Commission to update the VKB from time to time and doing the Commission can change its former decision subject to section 10(2) of the native Lands Act. 

[28]	The applicant also relies on rules of estoppel and cites Lord Denning MR in Fidelitas Shipping Co Ltd v V/O Exportchleb [1965] All ER 4 at 8 that;

 "…….within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that once an issue has been raised and distinctly determined between the parties, then as a general rule neither party can be allowed to fight that issue all over again".

[29]	Similar to the principles of res judicata, the rules of estoppel have no application when the Commission exercise its powers under section 10(2).

[30]	I see no basis for the applicant's application for a declaration or for a writ of certiorari. Accordingly, I dismiss the application. 

[31]	Considering the nature of the application, I do not award Costs. 

D. Dias Wickramasinghe
Judge