IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBJ 15 OF 2009

BETWEEN:

JEMESA RAMASI
APPLICANT

AND:

THE NATIVE LANDS COMMISSION
1ST RESPONDENT

THE NATIVE LANDS APPEALS TRIBUNAL
2ND RESPONDENT

THE ATTORNEY GENERAL OF FIJI
3RD RESPONDENT

THE NATIVE LAND TRUST BOARD
4TH RESPONDENT

Appearances: Mr. I. Fa for the Applicant.
Mr. Tuberi for the 1st, 2nd and 3rd Respondents.
Ms. Fifita for the 4th Respondent.

Date / Place of Judgment: Friday, 03 August, 2012 at Suva.

Coram: The Hon. Justice Anjala Wati.

JUDGMENT

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CATCHWORDS:

LEAVE FOR JUDICIAL REVIEW – DISPUTE OVER BOUNDARY BETWEEN TWO MATAQALI'S – POWERS OF THE COMMISSION TO HEAR BOUNDARY DISPUTE- RIGHT TO CHALLENGE THE DECISION MAKING PROCESS OF THE NATIVE LANDS COMMISSION AND THE NATIVE LANDS APPEALS TRIBUNAL –WHETHER THE ACT OF INQUIRY UNDER S. 6(1) AND S. 6(5) OF THE NATIVE LANDS ACT AFTER RECORDING BOUNDARIES INITIALLY AGREED BETWEEN THE PARTIES GIVES RISE TO RES JUDICATA- DELAY IN BRINGING APPLICATION FOR LEAVE- EXPLANATION FOR DELAY- FACTORS TO BE CONSIDERED IN DECIDING ON THE ASPECT OF DELAY- WHETHER THERE EXISTS ARGUABLE GROUNDS- LEAVE REFUSED.
 
LEGISLATION:

THE HIGH COURT RULES, 1988 ("HCR"): Order 53 Rule 4(1).

NATIVE LANDS ACT CAP. 133: S. 6.

NATIVE LANDS (APPEALS TRIBUNAL) (AMENDMENT) ACT, 1998: s. 7(5). 

CASES:

Ratu Akuila Kubou v. The State, the Appeals Tribunal and the Attorney General of Fiji [unreported] Court of Appeal of Fiji Islands Civil Appeal No. ABU 0110 of 2006S.

___________________________________________________________________________

The Cause/ Background

1.	The applicant seeks leave to apply for judicial review against the decision of the Native Land Commission ("NLC") and the decision of the Native Lands Appeals Tribunal ("NLAT").

2.	By its decision of 6 October, 2005, the NLC declared that Lot 2 on plan SO 5063 belonged to Mataqali Vunativi. Aggrieved with decision, the applicant on behalf of Mataqali Namatua appealed against the said decision which was dismissed by the NLAT.

3.	The facts of this case are relatively simple. 

4.	The plaintiff is the Turaga ni Mataqali Namatua of Yanuya Village, Yanuaya Island in the Malolo Group of islands. The proceeding is commenced by the plaintiff in his personal capacity as Turaga ni Mataqli and in a representative capacity for and on behalf of the members of the Mataqali Namatua.

5.	On 7 November, 1930, the 1st respondent on oath and by consent recorded the land boundaries of the 4 mataqalis who owned land on Tokoriki island. The 4 mataqalis are Vunativi, Vunaiviv, Namatua, and Vucunisai. When this record was made, there was no dispute over the boundaries or any land.

6.	In 2003, there arose a dispute between mataqali Vunativi and the mataqali Namatua. The 1st respondent carried out a survey of their land boundaries and gave full ownership of the land known Matanibeto on Tokoriki Island to mataqali Vunativi. Dissatisfied with the decision, the applicant instituted legal proceedings which resulted in the 1st respondent in conducting an inquiry under the Native Lands Act and making its decision of 6 October 2005.

7.	The essence of the applicant's case is that once the boundaries were determined in 1930, the 1st respondent was not permitted or empowered by law to make another determination to change the boundaries.

8.	The applicant therefore seeks the following declaratory relief:-

(a)	That the 1st and 2nd respondent's decision is contrary to the decision of the 1st respondent of 1930 which had conclusively settled the boundaries of the 4 mataqalis on Tokoriki Island.

(b)	That the 1st respondent does not have the authority to alter the boundaries of the 4 mataqalis and that the decision of the 1st respondent of 06 October is null and void.

The Parties Position – A Synopsis

9.	The applicant states that the applicant has sufficient standing to bring the application for leave as his mataqali has lost the land it previously owned and occupied. 

10.	The applicant also states that when the decision was made on appeal, the members of the mataqali did not have sufficient money to pay for a lawyer and seek a judicial review of the decision and so the delay of 2 years 8 months in bringing the leave application. In any event, the applicant argued that there is no time limitation in bringing the application for leave unless a certiorari is sought in which case the application must be made within months. 

11.	The applicant further submitted that the 1st respondent has made an error of law and had taken into account irrelevant considerations in arriving at a decision. The error of law was that the issue before the 1st respondent was res judicata after the 1930 decision. By making a decision again on the same issue the 1st respondent exceeded its jurisdiction. 

12.	The applicant argued that the decision reached by the 1st respondent is clearly a decision that was influenced or based on irrelevant considerations and as such is a nullity. It was submitted that the applicant has an arguable case and thus leave must be granted.

13.	Mr. Tuberi and Ms Fifita submitted that the event of 7 November 1930 was to record the land boundaries of the 4 mataqalis after all the mataqalis had agreed on their respective boundaries. The boundaries were therefore recorded by the 1st respondent. 

14.	When the dispute arose in 2003 between the two mataqali's, the 1st respondent exercised its powers under s. 6(1) of the Native Lands Act cap. 133 which permits the 1st respondent to " institute inquiries into 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". It was submitted that the dispute before the Commission was not res judicata as the Commission had never made an inquiry before on the aspect.

15.	The respondents' robustly submitted that s. 7(5) of the Native Lands Act states that the decision of the Native Lands Appeals Tribunal is final and conclusive and cannot be challenged in any court of law. The respondents submitted that since the applicant is also asking for a review of the decision of the 2nd respondent, the Court has no jurisdiction to hear the application for leave against it.

16.	The respondents' also argued that the applicant has failed to show that there was breach of natural justice or procedural impropriety which will allow the application for leave to be granted. 

17.	The respondents' stated that there is undue delay in bringing the application and the explanation given for the delay by the applicant is not legitimate.

The Law and the Analysis

18.	The first issue before me is the question of jurisdiction which arises from s. 7(5) of the Native Lands (Appeals Tribunal) (Amendment) Act, 1998 which provides that "decisions of the Appeals Tribunal are to be final and conclusive and cannot be challenged in a Court of law".

19.	S. 7(5) only includes the decision and not the decision making process. I have to thus examine whether the applicant's argument on leave hinges on the decision making process or the decision itself and then decide whether the Court has jurisdiction to consider the issue of leave: Ratu Akuila Kubou v. The State, the Appeals Tribunal and the Attorney General of Fiji [unreported] Court of Appeal of Fiji Islands Civil Appeal No. ABU 0110 of 2006S: at paragraph 15.

20.	Leave is also sought against the decision of the NLC, which decision does not come within the purview s. 7(5).

21.	I must examine whether the 1st respondent had jurisdiction to conduct an inquiry into the boundary dispute between the two mataqalis. 

22.	S. 6(1) of the Native Lands Act gives the 1st respondent jurisdiction to conduct an inquiry "into to the title to all land claimed by mataqali or other divisions or subdivisions of the people and to describe in writing the boundaries and situation of such lands together with the names and members of the respective communities claiming to be owners thereof".

23.	S. 6(5) states that if there is a dispute as to ownership of any lands marked 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 decision.

24.	I have perused the documents and I find that in 1930 the recording of the boundaries was on oath and with consent of all the mataqali's. There was at that time no dispute as to the boundaries. In 2003 the dispute arose on the location of the Matuku bound. When such a dispute arose the 1st respondent was perfectly entitled to exercise its statutory function to hear and determine the dispute. I do not find that the 1st respondent acted in excess to its jurisdiction or acted without jurisdiction. The recording of the boundaries in 1930 was not a recording after a determination of any dispute.

25.	The 1st respondent relied on the map of Tokoriki prepared by the State Survey Department which set out the boundaries of the 4 mataqalis. I do not find that the map was an irrelevant consideration. That was very necessary for settlement of the land dispute.

26.	There is no other allegation of breach of natural justice or procedural impropriety against the respondents and as such I find that there is no arguable case against the 1st respondent and no jurisdiction to grant leave against the 2nd respondent as the decision in itself is under challenge and not the process through which the decision was arrived.

27.	I will also look at the question of delay. I find that the delay of 2 years 8 months is excessive under order 53 Rule 4(1) of the HCR but the respondents have not established that the delay will cause substantial hardship, or substantially prejudice the rights of any person. However I find that such a delay in bringing an application is detrimental to good administration as the mataqali which has been vested with the land would be having the use of the same and after such a long period the Court is asked to relook at the issue. Land disputes must be brought to the attention of the Court as soon as possible. I do not accept as legitimate the assertion of the applicant that he did not have funds to find a lawyer for the past three years to file his application for judicial review. The applicant could have filed the application in person. There is nothing stopping them from doing so.

28.	In the final analysis, I find that there is no arguable case on breach of natural justice, procedural impropriety or excess of jurisdiction or no jurisdiction for which leave to issue judicial review should be granted.

Final Orders

29.	The application for leave for judicial review has no basis and is accordingly refused.

30.	I order that each party bears their own costs of the proceeding.

31.	Orders accordingly.

Anjala Wati

Judge

03.08.2012