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Salamailagi v i-Taukei Lands & Fisheries Commission [2022] FJHC 136; HBC255.2020 (23 March 2022)

In the High Court of Fiji
At Suva
Civil Jurisdiction

Civil Action No. HBC 255 of 2020

Kinisena Salamailagi
Paula Nawiriwiri
Plaintiffs

v
i-Taukei Lands & Fisheries Commission
First defendant

i-Taukei Lands Trust Board
Second defendant

Kini Raqoli of the Turaga Ni Mataqali Nakausoqo
Third defendant

Counsel: Ms U. Fa for the plaintiffs

Ms S. Taueki with Ms M. Motofaga for the first

defendant

Mr F. Vosarogo for the third defendant
Date of hearing: 30^th March,2021
Date of Judgment: 23^rd March,2022

JUDGMENT

1. The plaintiffs, in their originating summons seek the following reliefs:
   1. A declaration that no traditional land belonging to the Province of Rewa can be located within the Province of Naitasiri.
   2. A declaration that the land called “NAULU” sits within the boundary of the Province of Naitasiri.
   1. An Order ordering the 1^st Defendant to conduct an inquiry into the traditional ownership of the land called “NAULU”.
   1. An Order restraining the 2^nd Defendant from leasing or dealing with the land called “NAULU” until the final determination of this matter.
   2. An Order restraining the 2^nd Defendant from paying lease monies from the land called “NAULU” to the 3^rd Defendant until the final determination of this matter.

The first plaintiff’s supporting affidavit

2. The first plaintiff states that the land called “Naulu” was traditionally owned by Yasuva Matanikoaravatu,(YM) in the Province of Naitasiri. It was gifted to his great-grandmother on her marriage. The first plaintiff has lived on the land with her grandmother, a member of the Mataqali Nakausoqo,(MN) and extended families for 40 years. In 1978, his grandmother came to know that “Naulu” was registered as traditional land owned by MN. His family disputes the ownership of “Naulu”. They do not dispute that the land called “Navasa” belongs to the MN. “Navasa” is located in the Province of Rewa and “Naulu” in the Province of Naitasiri.

The second plaintiff’s affidavit

3. The second plaintiff states that he is the Turaga Ni Yasuva of the YM. The land in dispute has been in their possession since the 1700s and belongs to YM. In 1978, he was alerted that “Naulu” had changed its status to land belonging to MN. The second defendant informed him that the records with the Native Lands and Fisheries Commission showed that the land traditionally belonged to MN of Yavusa Navokai of the Province of Rewa as per the NLC sitting in 1923. The change in the record of the NLC was done fraudulently, as there was no other NLC sitting from 1923 till 1970. In 1978, he became aware that “NAULU” was registered to MN.

The first defendant’s affidavit of opposition

4. The Chairman of the i-Taukei Lands and Fisheries Commission states that there is no such land as “Naulu” in the Province of Naitasiri. The parcel of land referred to by the plaintiffs is called “Navasa” and is situated in the Rewa Province. The second sitting of the NLC on 21 August, 1923, confirmed that the land called “Navasa – Lot 279” belongs to MN of Yavusa Navokai in the Province of Rewa. There was no fraud involved. A period of 60 days was given to all parties involved to appeal against the evidence or sworn document. The Yavusa Matanikorovatu did not appeal against the sworn statement within the given time frame. At the second sitting of the NLC on 21 August, 1923, the ownership of the land in question was confirmed as belonging to MN of Yavusa Navokai in Rewa.

The affidavit in response of the third defendant

5. The third defendant states that according to the affidavit filed by the plaintiff, Lot 279 belongs to MN. He is the traditional head of MN. There is no reference to “Naulu” in the map of the area owned by YM, as attached to the first plaintiff’s affidavit. There is no such land as “Naulu” in the Province of Naitasiri.

The first plaintiff’s affidavit in reply to the first defendant’s affidavit

6. The first plaintiff states that the first defendant is fully aware of the land called “Naulu”. The traditional owners of these two lands according to the record of the first defendant is MN of Rewa. The second defendant has issued Agreements for Lease over the land called “Naulu”. On 25^th February, 2020, the second defendant confirmed in its reply to her Solicitor that the land in question was called “Naulu”.

The affidavit in reply of the second plaintiff

7. The second plaintiff states that “Naulu” is a short form of the traditional named “Navunivunionaulu”. It is located at the tip of Nakasi and falls within the boundary of his Yavusa land. The 1923 Land Commission confirmed that parcels of land belonging to Yavusa Navakai included the portion called “Navasa”, as decided in the Lands Commission Sitting of 1898 and recorded in the Evidence Book.

The summons to strike out

8. The third defendant seeks to strike out the plaintiff’s originating summons on the ground that it does not disclose a reasonable action, is an abuse of process and fails to comply with Or 7, r 3(1).
9. The supporting affidavit states that the affidavits of the plaintiffs presuppose contentious issues. The first defendant has determined that the land belongs to the third defendant’s Mataqali. The records of the first and second defendants on ownership of iTaukei land are sacrosanct.
10. The first plaintiff in his affidavit in reply states that the declarations and Orders sought are not an abuse of process, as Court can make a determination on her affidavit in support.

The hearing

11. Mr Vosarogo, counsel for the third defendant submitted that the summons does not provide sufficient particulars to identify the cause of action. The affidavits raise disputed issues. The plaintiffs did not seek to convert the summons to a writ action, although it was clear from the first defendant’s affidavit in opposition that it was strenuously contesting this action.
12. Ms Fa, counsel for the plaintiffs conceded that the affidavits raise disputed issues. She submitted that the defects can be cured by an amendment.
13. Ms Taueki, counsel for the first defendant submitted that it was incorrect to say that the first defendant did not respond. The matter was clarified to the first plaintiff’s grandmother. She submitted further that the plaintiffs did not appeal the decision of the NLC of 1923 to the Appeals Tribunal, in terms of section 7(2) of the iTaukei Lands Act. The decision of the NLC is final. This action is misconceived

The determination

14. The focus of the striking out application is that the originating summons is an abuse of process.
15. The plaintiffs contend that there is a land called “Naulu”, which belongs to the YM in the Province of Naitasiri.
16. The first defendant states that there is no such land known as “Naulu”. The land referred to by the plaintiff is called “Navasa”. The Native Lands and Fisheries Commission in 1923 confirmed that the land called “Navasa” belongs to MN of Yavusa Navokai in the Province of Rewa.
17. The plaintiffs state that the record of the NLC was changed fraudulently.
18. Sections 4 and 6 of the iTaukei Lands Act provides that the iTaukei Lands Commission shall ascertain “the rightful and hereditary property of native lands” in each Province of Fiji and institute inquiries into the title to all lands claimed by mataqali.
19. Section 7(2) of the Act provides that any person aggrieved by a decision of the iTaukei Lands Commission may appeal to the Appeals Tribunal.
20. The plaintiffs did not appeal the decision of the NLC of 1923 and now seek to challenge the decision of the NLC on its merits in these proceedings.
21. In my view, this Court has no jurisdiction to review the decision of the NLC.
22. In my judgment, the originating summons is an abuse of process of Court.
23. The originating summons is declined with costs. I award costs to the second defendant for appearances of its counsel prior to the hearing.
24. Orders
    • (a) The originating summons is declined
    • (b) The first and second plaintiffs shall pay costs summarily assessed as follows;
      1. a sum of $ 2000.00 to the first defendant.
      2. a sum of $ 750.00 to the second defendant.
      3. a sum of $ 2000.00 to the third defendant

A.L.B. Brito-Mutunayagam

JUDGE

23^rd March, 2022