IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 354 of 2005

BETWEEN:

EPARAMA ROKOMOUTU of Yavusa Nacaqaru, Mataqali Nacaqaru, Tokatoka Nacaqaru of Waisavusavu Village, Navuakece, Naitasiri for and on behalf of himself and on behalf of Yavusa Nacaqara
Plaintiff

AND :

DIRECTOR OF LANDS, of Government Buildings, Suva
1st Defendant

AND:

SANAILA CAVUDUADUA of Delaiwaimale, Navuakece, Naitasiri, Farmer
2nd Defendant

AND:

THE REGISTRAR OF TITLES of Suvavou House, Suva
3rd Defendant

AND:

THE ATTORNEY GENERAL for and on behalf of the 1st and 3rd Defendants and the Government of Fiji
4th Defendant

AND :

THE NATIVE LAND TRUST BOARD, a body corporate established under the Native Land Trust Act Cap 134 of 431 Victoria Parade, Suva
5th Defendant

Appearance : Mr N Nawaikula of Nawaikula Esqr. Barrister & Solicitor for the Plaintiff
Ms T Baravilala of AG's Chambers for 1st; 3rd; and 4th Defendants
Ms A Veretawatini for the 2nd Defendant
Ms E Raitamata for the 5th Defendant

Date of Judgment : 4th February 2015

JUDGMENT

1.	This is a matter which was originally heard before Hon. Justice Jitoko, in 2005 and 2007 and was reheard by me. The Plaintiff filed originating Summons and Affidavit in Support on 15 July 2005 and sought the following Orders:

(1)	A DECLARATION that the Director of Lands acted beyond its powers in granting to the 2nd Defendant a lease being Crown Lease No. 14729 registered on the 18th April 2002.

(2)	A DECLARATION that the said lease being Crown Lease No. 14729 is null and void and of no effect.

(3)	AN ORDER of Mandanus directing the Registrar of Titles to cancel the said lease.

(4)	Costs of this action.

2.	In limine claim for an Order of Mandamus cannot be entertained by this court since the Plaintiff had not instituted action as per Order 53 of the High Court Rules and claim for Mandamus is refused and I am proceeding with the other claims for declaration.

3.	The Plaintiff is the Turaga ni Yavusa of the Plaintiff Yavusa Nacaqaru and by the Affidavit sworn by him on 11 July 2005 it was stated:

3.1	The State Lease No. 14729 issued by the 1st Defendant on 9 April 2002 and registered on 15 April 2002 (Annexed as ER1) on the subject land and the first Defendant had no power to issue the said lease.

3.2	The 1st Defendant issued the lease to the 2nd Defendant, an Agricultural Lease over Schedule A where the lease was expired in 1998.

3.3	In July 1999 the 4th Defendant announced by tabling two bills in the Parliament (Bill 15 and 16) proposing to transfer to the 5th Defendant control of Schedule A and B lands (Bill 15 and 16 annexed as ER2).

3.4	On 23 August 1999 the 5th Defendant in anticipation written to the 1st Defendant requesting the 1st Defendant to refrain from issuing any new lease over Schedule A and B lands under its control.

3.5	When the 2nd Defendant applied to the 1st Defendant for renewal on 3 March 2000 replied that all Schedule A and B lands will be reverted to the 5th Defendant in due course and the Bills are still in the Parliament and they are unable to extend the lease until finalization of the Bills (ER4).

3.6	In May 2000, a coup occurred in Fiji and Bill No. 15 and 16 were never passed.

3.7	On 30 November 2000, the Interim Government of Fiji passed two Decrees No. 15 and 16 transferring all Schedules A and B lands which were under the control of the 1st Defendant to the control of the 5th Defendant, (ER5).

3.8	On 1 May 2002, the Government elected under the restored 1997 Constitution passed Act No. 12 and 13 of 2002 to formalize and validate the effect of Decrees No. 14 and 15 with effect from 30 November 2000; (Act No. 12 and 13 are marked as ER6).

3.9	On 9 April 2002, the 1st Defendant issued lease to the 2nd Defendant.

3.10	The Plaintiff stated issuing lease to the 1st Defendant who acted ultra vires as it had no power to deal with the subject land, since the control of the said land was transferred to the 5th Defendant on 20 November 2000 pursuant to Act No. 12 and 13.

3.11	The Plaintiff complained to the 5th Defendant and the 5th Defendant on 31 March 2003 sent a letter (marked ER7), the 1st Defendant acted unlawfully in issuing and registering the lease in favour of the 1st Defendant in April 2004. 

4.	1st, 3rd, and 4th Defendants by the Affidavit sworn by Barma Nand, Director Lands on 22nd December 2005 stated inter-alia:

4.1	Admitted that State Lease No. 14729 was issued by the 1st Defendant on 9 April 2002 and registered on 15 April 2002.

4.2	Paragraph 4 was admitted.

4.3	The Plaintiff's allegation in para 5 of his Affidavit was denied and stated the 1st Defendant had requisite power to issue the lease to the 2nd Defendant under the provisions of the State Land Act and it was validated by the provisions of Section 1(3) of the Native Lands Trust (Amendment) Act No. 12 of 2002 in respect of former Schedule A (referred to Annexure ER 6) of the Plaintiff's Affidavit. It was further stated lease granted to 2nd Defendant is valid as the State land Act was the only legislation which existed at that time.

4.4	The contents of paragraphs 6, 7, 8, 9, 10, 11, 12 and 13 are admitted by the 1st, 3rd and 4th Defendants as they were not contentious matters. 

4.5	The allegations made in paragraph 14 was denied and reiterated that the 1st Defendant had the requisite power and the actions of his are validated and protected under Section 1(3) of Act No. 12.

4.6	Whilst admitting the letter of 31/3/2002 received from the 5th Defendant (NLTB) stated in paragraph 15 of the Plaintiff's Affidavit the 1st Defendant replied the said letter on 15 April 2003, annexed as BN1.

4.7	Further it was stated the 2nd Defendant issued an offer of commitment dated 9 November 1998 (BN2) and the lease was acknowledged. Subject lease was finally approved in January 2002.

4.8	The 1st Defendant advised the 2nd Defendant by letter dated 3/6/2003 of the Transfer and Administration of Leases over Crown Schedule A and B lands comes under the 5th Defendant and the copy was annexed marked as BN3.

4.9	The 1st; 3rd and 4th Defendants further stated the Bill No. 25 and 26 were deferred pending 1999 elections the same were amended and reformatted as Bill Nos. 15 and 16 of 1999 and the Bills were at the committee stage when the coup occurred on 19th May 2000.

4.10	Subsequently, the Interim Civilian Government carried it by the enactment of Decrees 14 and 15 of 2000 purported to transfer all Schedule A and B lands to the Native Land Trust Board on 30 November 2000 the date in which the decrees became effective. The Court of Appeal decision on Chandrika Prasad case it was determined through advice the impact of the decision was that the Decrees 14 and 15 of 2000 that changed ownership of Schedule A and B lands to Native Land Trust Board was invalid and was in fact rendered/deemed null and void.

4.11	The 1st, 3rd, and 4th Defendants states that the Administration of Schedules A and B lands fell back to the Director of Lands until the gazetting of Native Land Trust (Amendment) Act (on May 2002) the Director of Lands was the legal leaser of Schedules A and B lands and he had granted the leases in absence of an statute under the Constitution of 1997.

4.12	It was further stated in the Affidavit even though the said Acts are deemed to have come into force on 30 November 2000, the Section 1(3) of the Act No. 12 of 2002, validates all dealings done by the Director of Lands between 30 November 2000 and the date of publication of the Act in the gazette (10 May 2002). The intention of the Section 1(3) to validate the actions of the Director of Lands during the said time period. Although, the Director of Lands was replaced by the NLTB for all purposes, terms and conditions of the leases issued by the Director of Lands remain unchanged. Accordingly lease granted to the 2nd Defendant is valid in law.

4.13	The 1st, 3rd, and 4th Defendants states that back dating the commencement of the Act to 30 November 2000 was to validate some reserves over Schedules A and B lands that NLTB published in the gazette after 30 November 2000. The actual transfer of Schedules A and B lands commenced after the publication of the Acts in the gazette (10 May 2002) and the Lands Department files were transferred from the office to the NLTB was on 14 October 2002.

5.	The 2nd Defendant filed the Affidavit in Reply to the Plaintiff's Affidavit on 27 September 2005 and stated inter-alia.

5.1	Admitted that the Plaintiff is the Turaga ni Yavusa of the Plaintiff Yavusa and he had stated he doesn't know whether the Plaintiff has the authority from the Yavusa to make the Affidavit or not.

5.2	The 2nd Defendant admitted he was issued with the Lease No. 14729 by the 1st Defendant.

5.3	The land in question was a Crown Grant for his father on his death, lease expired in 1998 and he applied and obtained a fresh lease.

5.4	The 2nd Defendant admitted the allegation in paragraph 6 in the Plaintiff's Affidavit and referred to paragraph 5 of his Affidavit.

5.5	Paragraphs 7 and 8 of the Plaintiff's Affidavit is admitted.

5.6	In replying to paragraph 9, the 2nd Defendant had submitted his application for grant of lease was submitted before the Bill was tabled in Parliament.

5.7	The 2nd Defendant admitted the paragraph 10 of the Affidavit and stated Decrees are not deemed to be laws of the land.

5.8	The 2nd Defendant was unaware of the contents of paragraph 12 of the Plaintiff's Affidavit and he neither deny nor admit the contents thereof and admitted paragraph 13 of the Plaintiff's Affidavit.

5.9	The 2nd Defendant stated that the Plaintiff had wrongly joined him as a party since the main bodies who were instrumental in the grant of lease is the 1st Defendant.

5.10	The 2nd Defendant was not aware of the paragraph 16 of the Affidavit.

6.	The 5th Defendant filed its Affidavit dated 11 January 2006 sworn by Savenaca Ralagi who stated:

6.1	The contents of paragraphs 1, 2, 4, 6-15 were admitted and subject to the discretion of this court.

6.2	The contents of paragraphs 3 can neither be denied nor confirmed as the 5 Defendant has no knowledge whatsoever.

7.	When the matter came up before Hon. Justice Jitoko on 2 March 2007, directives was issued to the parties to file Supplementary Affidavits and by the Plaintiff's Affidavit dated 22 August 2007, the following documents were tendered to this court:

(1)	The letter dated 1 May 2007 by the Plaintiff's solicitor requesting for the copy of proclamation notices referred in the letter of 23 August 1999 by the General Manager Native Land Trust Board (NLTB).

(2)	The reply by NLTB was sent by the letter dated 31 May 2007 annexing the notices pertaining to proclamation annexed marked LL2.

8.	In reply to the Plaintiff's Affidavit dated 22 August 2007, the 1st, 3rd, 4th and 5th Defendant filed Supplementary Affidavits dated 28 November 2007 sworn by Tulsi Ram, Senior Lands Officer of the 1st Defendant and stated inter-alia:

8.1	On 20 February 1998, 2nd Defendant had written a letter in Fijian language making an application to renew the lease (TR1).

8.2	On 9 November 1998, 1st Defendant informed the 2nd Defendant extension is approved subject to certain conditions which were agreed by the 2nd Defendant (TR2).

8.3	On 30 May 2000 the 1 Defendant sent a memorandum to the Director Extension of Ministry of Agriculture, Fisheries and Forests (MAAF) informing that the 1st Defendant had stopped all dealings of Schedules A and B lands until the Bill was passed (TR3). By letter dated 3 March 2000 the 1st Defendant had advised the 2nd Defendant that since the Schedule A and B lands will be reverted to NLTB that 1st Defendant is unable to extend the lease until the Bills are finalized by the Parliament (TR4).

8.4	On 6 March 2002, the Department of Lands had written to the 2nd Defendant advising the lease document being prepared and awaiting his execution (TR5).

8.5	On 8 April 2002, the 2nd Defendant had paid the 1st Defendant back rentals and fees for the lease document and receipts were annexed as TR6.

9.	On 30 October 2008, the Plaintiff's solicitor made an application to substitute the Plaintiff since he died and the Hon. Justice Jitoko made directives to file a motion to substitute the Plaintiff and no date was given.

10.	No steps were taken by the Plaintiff's solicitor and the Summons was filed by the 5th Defendant on 3 September 2010 to strike out for want of prosecution. 

11.	The matter was taken up for hearing by the Learned Master Amaratunga (as then he was) was concluded on 19 November 2010 and Ruling was fixed for 10 December 2010. Then on 10 December 2010 Ruling was vacated for 25 January 2011 and the Learned Master had made an Order that this matter be listed before a Judge since he did not have the Jurisdiction.

12.	When the matter was mentioned before me on 3 July 2012, Leave was granted to substitute the Plaintiff by the Administrator Vilikesa Rokosuka and summons for the strike out application was fixed for 4 June 2014.

13.	On 4 June 2014, Ms Komaitai submitted that the 5th Defendant is not proceeding with the strike out application filed before Hon. Justice Jitoko and the substantive matter was fixed for hearing for 19 August 2014.

14.	When the matter was taken up for hearing on 3 October 2014, counsel made their submissions.

15.	Analysis and Determination

15.1	The issue to be decided in this matter is as to whether the 1st Defendant had the power and authority to issue Crown Lease No. 14724 dated 9 April 2002 registered on 15 April 2002 (Annexed to the Affidavit of the Plaintiff marked as ER1).

15.2	The Plaintiff claims that the 1st Defendant did not have the power or authority to issue the said Crown Lease No. 14729 to the 2nd Defendant.

15.3	The Plaintiff submitted that the 1st Defendant acted beyond its power in granting the lease to the 2nd Defendant and as such the said lease is null and void. Bill Nos. 15 and 16 (Annexure ER2) was for the purpose of bringing all Schedules A and B lands under the control of the 5th Defendant. It is a fact that these Bills never came into operation and those were in the form of Bill as such, the letter dated 23 August 1999 (ER3) has no effect in law. I also note RT2 annexed to the Affidavit of Tulsi Ram dated 9.11.98 agreed by the 2nd Defendant is a letter of commitment acknowledged by the 1st Defendant and the 2nd Defendant for extension of the lease for 30 years from 17 September 1998. The original lease was granted from 17 September 1975 which was to expire on 16 September 2000 (Annexure TR3). However, the 1st Defendant did not have authority to act on the letter dated 23 August 1999 and it was a conditional letter of commitment which did not form an agreement between the 1st and 2nd Defendants until the purported lease No. 14724.

15.4	As stated in the Affidavit of the 2nd Defendant, he applied for the extension of the lease on his father's demise. However, there is no evidence adduced by the Plaintiff before me that on the 2nd Defendant's father's death and that the lease was expired. 

15.5	I also considered the following sequence of events to arrive at a conclusion on this matter:

(a)	In the year 1999 Bill No. 15 and 16 were proposed to transfer Schedule A and B lands;

(b)	On 19 May 2000 Coup occurred and the Bills were not passed and did not become Law;

(c)	In November 2000, 2 Decrees Nos. 14 and 15 were passed by the Interim Government vesting the control to the 5th Defendant to deal with lands specified in Schedule A and B;

(d)	1st March 2001 Chandrika Prasad Decision was delivered and held that the Coup was illegal and the Parliament was to be recalled;

(e)	Between July and September 2001, elections were held and on 19th September 2001 the President summoned the Parliament;

(f)	On or about the 14th day of April 2002, the lease was registered in the 2nd Defendants name by the 1st and 3rd Defendants;

(g)	On or about the 1st day of May 2002, by Gazette, the Government gave legal effect to the Decrees passed sometimes in November 2000. The Decrees were backdated to the 30th day of November 2000.

15.6	As stated in paragraph 3.4 of this judgment by the letter dated 23 August 1999, the 5th Defendant in anticipation of the Bills No. 15 and 16 being passed by the parliament requested the 1st Defendant to refrain from issuing any new lease over Schedule A and B lands. It is a fact these 2 Bills were never passed by the parliament because of the coup that occurred on 19/5/2000 and not become law of the country.

15.7	Thereafter, the Decree No. 14 and 15 were enacted by the interim government with regard to the transfer of Schedule A and B lands to the 5th Defendant, the Native Land Trust Board. In May 2002, Act No. 12 and 13 were enacted and the Decrees No. 15 and 16 were replaced with regard to Schedule A and B lands. What is important to consider is Section 1(3) of Act No. 12 and 13 of 2002 which states:

"1………………………..

(3) Any act done in respect of matters set out in Section 9 of this Act between November 2000 and the publication of this Act in the Gazette is validated and deemed to have been done under the principle Act or other written law."

The above Acts were published in the gazette on 1 May 2002.

The Section 4 of the Interpretation Act (Cap 7):

"Every Act shall be published in the gazette, shall be a public Act and shall be judicially noticed."

Accordingly, this court concludes the effective date of the Act is 1 May 2002 where judicial notice can be taken. However, the Act was passed with retrospective effect.

15.8	By Section 1(3) of the Act validate the acts done under the Principal Act or other written law. The Section 1(2) of the Act No. 15 states:

"In this Act, the Native Lands Act (Cap 133) is referred to as the 'Principal Act'"

15.9	This court has to consider as to whether the Decree passed during the period of Interim Government can be taken as law. In case of the The Republic of Fiji and Attorney General of Fiji v. Chandrika Prasad (Civil Appeal No. ABU 0075/2000S) was cited by both the parties. The Court of Appeal of Fiji had considered the legality of the decrees, executive acts, and decisions of the administration since 19 May 2000. The two Decrees No. 14 and 15 Native Lands Act (Amendment) Decree 2000 came into force on 12 July 2000.

In page 47 and 48 of the said Judgment it is stated:

"Legality of Intervening Acts

Our conclusion that the 1997 Constitution remained in force throughout raises the question of the extent to which the decrees, executive acts and decisions of the administration since 19 May 2000 are to be recognized as valid. This point was discussed in the Privy Council in Madzimbamuto v. Lardner-Burke [1969] 1 AC 645, but the majority found it unnecessary to decide the question. At p726 Lord Reid referred to decisions of the Supreme Court of the United States dealing with the situation after the American Civil War, in the former Confederate States and he cited Horn v. Lockhart (1873) 17 Wallace 570, 580 (84 US), where the Court said:

" We admit that the acts of the several States in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary states touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the National Government, and did not impair the rights of citizens under the Constitution."

In Madzimbamuto Lord Pearce said at p.732:

"I accept the existence of the principle that acts done by those actually in control without lawful validity may be recognized as valid or acted upon by the courts, with certain limitations namely (a) so far as they are directed to and reasonably required for ordinary orderly running of the State, and (b) so far as they do not impair the rights of citizens under the lawful…..Constitution, and (c) so far as they are not intended to and do not in fact directly help the unsurpation…"

We respectfully adopt this statement as an expression of the law applicable to Fiji."

It is clear from the above statement which was adopted by the Fiji Court of Appeal; the court should act with limitations. As regards to the Decree Nos. 13 and 14, the principle adopted in Chandrika Prasad's case is relevant, and the principle adopted in the said case did not give any authority to the 1st Defendant to grant leases since the Decree No. 14 and 15 were in force until the Act was passed in May 2002.

15.10	The Plaintiff's argument is that:

(a)	Quoting Chandrika Prasad case the words "what reasonably required for ordinary orderly running of the state" means "what is necessary for the day to day running of the state". The Acts 12 and 13 of 2002 were made to have retrospective effect from November 2000 for the same reasons that Government had acknowledged Decree 14 and 15 were not for the purpose for the day to day running of the state;

(b)	The Plaintiff had admitted that Acts being gazette on 1 May 2002 and became law from that day. However, this position does not help the Defendants since the two Acts have the effect from 30 November 2000. The 5th Defendant had empowered with legal authority to act upon the lands after 30 November 2000 and the offer given to the 2nd Defendant on 6 March 2002 is unlawful and as such null and void;

15.11The 1st; 3rd; and 4th Defendants submitted the interpretation of retrospective effect does not give legal validity to the Decree No. 12 and 13. This is a far fetch argument and does not carry any merits. The Director of Lands 1st Defendant was well aware about the law existing at the time for grant of the lease. The reason for giving effect retrospective to the Acts No. 12 and 13 of 2002 was that to condone the provisions of the two Decrees Nos. 13 and 14. The argument that Director of Lands had the right to grant the lease in April 2002 fails and I determine the Director of Lands acted ultra vires and without any lawful authority. Accordingly, there is no merit of the submissions made by the 1st; 3rd and 4th Defendants, on this issue.

16.	I further conclude the lease granted by the 1st Defendant on 6 April 2002 cannot be recognized under Section 1(3) and (4) of Act No. 12 because Section 1(3) validates only matters set out in Sections 6 to 9. The recognition was given for the leases granted by the Director of Lands prior to the commencement of the Act No. 12 ie. 30 November 2000. The leases given after 30 November 2000 are not recognized under the provisions of the Section 8 and 9.

17.	Accordingly, I make the following Orders:

(1)	Order and declare that the 1st Defendant had acted unlawfully and beyond its powers in granting Crown Lease No. 14729 to the 2nd Defendant.

(2)	Order that the Crown Lease No. 14729 is null and void.

(3)	It is ordered and declared that the power and authority on the land described in Lease No. 14729 is vested with the 5th Defendant with effect from November 2000 and all actions taken by the Director of Lands after the said date is void and no effect in law; and the 3rd Defendant is ordered to make necessary endorsements.

(4)	Claim for Writ of Mandamus refused.

(5)	The 1st Defendant is ordered to pay summarily assessed costs of $2,500.00 to the Plaintiff.

Delivered at Suva this 4th Day of February 2015.

………………………..
C. KOTIGALAGE
JUDGE