IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Judicial Review No. HBJ 02 of 2019

BETWEEN:

THE STATE
A N D:

ITAUKEI LANDS APPEAL TRIBUNAL
1st  RESPONDENT

A N D:

ITAUKEI LANDS AND FISHERIES COMMISSION

2nd  RESPONDENT

A N D:

THE ATTORNEY GENERAL OF FIJI

3rd RESPONDENT

A N D:

RATU JONE MATAOFA QOMATE RITOVE

4th RESPONDENT

A N D:

RATU VILIAME WAQANITOGA

APPLICANT

BEFORE:
Javed Mansoor, J

COUNSEL:
Mr. S. Sharma for the applicant
Mr. A. Prakash for the first, second & third respondents
Mr. A. Bale with Mr. A. Prasad for the fourth respondent

Date of Hearing:
2 August 2020

Date of Decision:
6 April 2022

DECISION
JUDICIAL REVIEW		Leave – Whether the High Court has Jurisdiction to review the decision of the Appeals Tribunal – Section 7 (5) of the iTaukei Lands Act 1905 – Order 53 Rule 3 of the High Court Rules 1988  

The following cases are referred to in this decision:
a.	Jemesa Ramasi v The Native Land Commission, The Native Lands Appeals Tribunal, The Attorney General and the iTaukei Land Trust Board [2015] FJCA 83; ABU 0056.2012 (12 June 2015)
b.	Ratu Akuila Kubou v The State, the Appeals Tribunal and the Attorney General of Fiji [2008] FJCA 60; ABU 110.2006S (29 October 2008)
c.	The State v Native Lands Appeals Tribunal, Ratu Williame Ratudale Sovasova and Adi Makereta Marama Roko Tui [2009] FJHC 164; HBJ 2.2009L (14 August 2009)
d.	Kemrajh Harrikkissoon v Attorney General of Trinidad and Tobaggo [1980} A.C 265
e.	Ratu Nacanieli Nava v The Native Lands Commission and the Native Land Trust Board [1994] FJCA 34; ABU0055J.93S (11 November 1994)
f.	Joni Salueirogo Satala v Bouwalu [2008] FJSC 20; CBV 0005.2006S (13 October 2008)

1.	The applicant filed action seeking leave for judicial review of the decision dated 15 May 2019 by the first respondent. By that decision, the first respondent confirmed the appointment of the fourth respondent, Ratu Jone Mataofa Qomate, as Tui Labasa. The appointment was made by the second respondent. 

2.	The applicant asked for the following: 
(a)	An order for certiorari to quash the decision of the first respondent dated 15 May 2019 confirming the commission appointment of Ratu Jone Mataofa Qomate as Tui Labasa.

(b)	A declaration that the decision of the first respondent given on 15 May 2019 is unlawful, void and of no effect.

(c)	A declaration that the decision of the first respondent given on 15 May 2019 declaring and confirming the fourth respondent to be the rightful Tui Labasa is unreasonable on the ground that it was arbitrary and capricious and as such the decision is unlawful.

(d)	A declaration that the first respondent had acted in bad faith and in a manner which was unfair to the applicant by not following the well-established protocol of appointing the Tui Labasa based on the ancestral chiefly lineage but followed the unprecedented notion of what they believe to be the right decision.

(e)	A declaration that the fourth respondent’s lineage cannot ascend the chiefly position, in that his lineage is from a “vasu”, or maternally linked to the yavusa wasavulu, and in Fijian protocol, vasu cannot either be appointed as chief or own land in the vanua where they are maternally linked.

(f)	A declaration that the first respondent’s declaration of the fourth respondent as the rightful Tui Labasa is irregular, void and of no effect.

(g)	An order for damages and cost.

3.	The applicant makes claim to the position of the chiefly title of Tui Labasa from the tokatoka wasavulu in the village of Nasekula in Labasa. The applicant states he is iTaukei registered in the Vola ni Kawa Bula (VKB) register of living descendants of the tokatoka wasavulu, mataqali wasavulu and the yavusa wasavulu of Nasekula. He asserts to having the support of the majority members of these divisions. 

4.	The first respondent is constituted under the iTaukei Lands Act 1905 (Act) by the iTaukei Lands (Amendment) (Appeals Tribunal) Act No 44 of 1998. The role of the first respondent is to hear and determine appeals from the decision of the second respondent under sections 6 and 17 of the Act. A person appointed as chairman of the first respondent must be qualified as a judge or be suitable, by virtue of his academic or other qualifications and experience, to be chairman of the Appeals Tribunal. Persons appointed as members of the Appeals Tribunal must be suitable by virtue of their academic or other qualifications and experience to be so appointed.   

5.	The second respondent administers iTaukei lands, adjudicates on land and headship disputes. The Attorney General has been made the third respondent. The fourth respondent is the present Tui Labasa. His appointment was made by the second respondent and confirmed by the first respondent in appeal. It is this appointment that is challenged in court. 

6.	The applicant complained that the second respondent, in making the decision to appoint the fourth respondent as Tui Labasa, acted in breach of the rules of natural justice.  The applicant alleged that the first respondent failed to take cognizance of important documentary evidence provided by the applicant to establish his claim to the title. He said that he tendered 18 documents at the hearing, whereas the fourth respondent did not produce any evidence at all, especially to counter the claim that his connection to the yavusa wasavulu is that from the status of being a vasu, and, therefore, did not qualify to the chiefly position of Tui Labasa.

7.	The respondents objected to the grant of leave. The first, second and third respondents were represented by the Attorney General. In affidavits filed on behalf of these respondents, they averred that the applicant had failed to provide the first and second respondents evidence in support of his claim to the chiefly title, although he had the opportunity to do so. The respondents denied there was a breach of natural justice. They stated that the first and second respondents based their decisions on the available evidence, and the decisions were made according to law. The objections of the respondents need not be stated here in detail in view of the preliminary issue that was raised on their behalf.

8.	When the application for leave was taken up for hearing, the respondents raised a preliminary objection at the outset, stating that this court had no jurisdiction to hear the application in view of the court’s ouster by section 7 (5) of the Act. All parties were heard on the matter of jurisdiction.  Hearing of the leave application was deferred, as the court would not have been able to grant leave without jurisdiction. After oral submissions were made by the parties, the applicant and the fourth respondent were granted time to file written submissions on the preliminary issue. The applicant filed his submissions on 9 June 2020, while the fourth respondent filed his submissions on 23 June 2020. The first, second and third respondents had dealt with the question of the court’s jurisdiction in their submissions related to the application for leave, which were filed prior to the hearing, and did not file separate submissions on the jurisdiction issue. This decision concerns the respondents’ objection to the court’s jurisdiction to hear the leave application.  

9.	Section 17 of the Act vests the iTaukei Lands Commission with authority to inquire into disputes arising between iTaukei as to the headship of any division or subdivision of the people having the customary right to occupy and use any itaukei lands. The iTaukei Lands Commission has authority to inquire into the dispute and after hearing the evidence and the claimants, must make a decision as to the proper head of the division or subdivision. 

10.	Section 17 (3) of the Act provides that a person aggrieved by a decision of the iTaukei Lands Commission may appeal against the decision to the Appeals Tribunal. The person aggrieved by the decision must give notice of his or her desire to appeal within 90 days of such decision. The notice must contain the grounds of appeal. The court has not been provided the notice or the grounds of appeal filed by the applicant against the second respondent’s ruling.

11.	Section 7 (1) of the Act states that it shall be the duty of the first respondent to hear and determine appeals from decisions of the iTaukei Lands Commission under sections 6 and 17 and from a commissioner under section 16, and that, any such determination by the Appeals Tribunal shall be final.

12.	Section 7 (5) of the Act, which was introduced by Act No.44 of 1998, states:
“Decisions of the Appeals Tribunal are to be final and conclusive and cannot be challenged in a court of law”.

13.	The respondents’ objection to the court’s jurisdiction to hear the applicant’s summons is based on section 7 (5) of the Act.  

14.	Mr. Sharma, who appeared for the applicant, conceded that the court had no jurisdiction to review the merits of a decision by the Appeals Tribunal. However, he contended that the court was entitled to examine the process by which the first and second respondents made their decisions. He submitted that there was a breach of natural justice, that evidence provided by the applicant was not considered and that the first respondent had taken into account material that was irrelevant and ignored what was relevant. He submitted that these failures resulted in procedural unfairness which the court had jurisdiction to review. 

15.	The applicant made detailed averments giving reasons why the first respondent should have appointed him and not the fourth respondent as Tui Labasa. He claimed that the first respondent’s decision was made ultra vires the recognised custom and practice of the iTaukei protocol based on the VKB. He stated that the decision of the first respondent was causing confusion, and led to a misinterpretation of the established protocol. He claimed that the decision excluded the consideration of relevant matters such as the vasu issue and the distinction between the Drauna family and the Qomate family. He said that a finding was made by the iTaukei Lands Commission that “there is insufficient evidence to show that the Drauna family are descendants of Niusava, the first Tui Labasa”. He said that the first respondent’s decision contradicted this finding. He claimed he has obtained alternate sources from the Ministry of Justice to establish his claim.  The applicant also stated that a Qomate family tree that was referred to in the ruling of the first respondent was misleading. The applicant further alleged that the decision of the first respondent was made mala fide.

16.	The respondents contended that the first and the second respondents had dealt with the merits of the matter on the basis of the available evidence. Thy submitted that the applicant had not provided the second respondent and, thereafter, the first respondent, evidence in support of his claim, although he had the opportunity to do so. 

17.	The parties cited several authorities which are helpful in adjudicating the preliminary issue raised by the respondents. 

18.	In Jemesa Ramasi v The Native Land Commission, The Native Lands Appeals Tribunal, The Attorney General and the iTaukei Land Trust Board, the Fiji Court of Appeal stated that an aggrieved person could apply for judicial review of a decision of the tribunal alleging either lack of jurisdiction or a denial of natural justice. Explaining further the court said, a denial of natural justice may mean either the existence of bias on the part of the tribunal or procedural impropriety.

19.	In Ramasi the court referred to the following paragraph in the Court of Appeal decision in Ratu Akuila Kubou v The state, the Appeals Tribunal and the Attorney General of Fiji another.

“The courts have held that the effect of [section 7 (5)] is that decisions of the Tribunal are unimpeachable provided that they are valid decisions, reached in accordance with the principles of natural justice”. 

20.	Similarly, in Ratu Nacanieli Nava v The Native Lands Commission and the Native Land Trust Board, the then Court of Appeal held that the court has no jurisdiction to decide the merits of the dispute. The court stated that it is the decision making process of a statutory tribunal which is under review by the court, and not the merits of the decision. 

21.	In The State v Native Lands Appeals Tribunal, Ratu Williame Ratudale Sovasova and Adi Makereta Marama Roko Tui, the High Court of Fiji refused to exercise jurisdiction in an application for judicial review. In that case, the court of its own motion raised the issue whether it had jurisdiction in the matter. After a detailed examination of the authorities, the court concluded that it had no jurisdiction to review the decision of the Appeals Tribunal.   

22.	The second respondent has the authority to hear evidence to make findings concerning a headship dispute and to issue a ruling. An aggrieved party may appeal to the first respondent against the ruling of the second respondent. If no notice of appeal is given the record of the commissioner is final. On appeal, the Appeals Tribunal is permitted to consider further evidence only if all of the conditions stipulated by section 7 (3) of the Act are satisfied. The section states that the Appeals Tribunal has power to hear further evidence only if all of the following conditions are satisfied: (a) if it is shown that the evidence could not have obtained with reasonable diligence for use at the inquiry before the Commission or commissioner (b) if the further evidence is such that, if given, it would probably have an important influence on the decision (c) if the evidence is such as is presumably to be believed. The applicant has not shown that the first and second respondents denied him a hearing or the opportunity to provide evidence. 

23.	A look at the reliefs sought by the applicant (reproduced at paragraph 2) taken together with the averments in the applicant’s affidavit do not suggest any procedural impropriety in the proceedings before the Appeals Tribunal. The applicant complains that evidence provided by him has not been considered; that the decision is irrational, unreasonable and causes confusion. Unfortunately for the applicant, the court is not permitted to scrutinise the correctness of the Appeal Tribunal’s decision. The court may review the first respondent’s decision only where it lacks jurisdiction, if procedural impropriety is established or where there is a failure of natural justice. That is not so in this case.

24.	In his considered judgment in The State v Native Lands Appeals Tribunal, Ratu Williame Ratudale Sovasova and Adi Makereta Marama Roko Tui, Inoke J makes it clear that the court has no jurisdiction to review a decision of the Appeals Tribunal on the complaint that the commission has failed to accept the evidence of one party as against the other. The Appeals Tribunal is vested with the authority to inquire into the grounds of appeal against a decision of the second respondent. The authorities have proceeded on the basis that all questions concerning iTaukei land and headship are to be resolved by the first and the second respondents. To quote from the judgment of Inoke J, once the Appeals Tribunal has reached its decision according to Fijian customary law, the wish of the legislature has been met and the court has no power to interfere. The following passages of that judgment are worthy of reproduction:
“The line between a review of the merits on the one hand and a review based on breach of natural justice or procedural irregularity is, with respect, very blurred and in fact may not exist.  Each case must be decided on its facts.  Indeed, the examples that I give below will in fact show that for the purposes of the ouster clause under consideration, there is no difference between the two concepts”.
“For example, if the Applicant says that the Tribunal accepted a letter she gave to it at the hearing but the Tribunal did not give enough weight to the letter, and the Applicant seeks a review of the Tribunal decision, based on the Tribunal’s refusal to give the letter due weight, then that is clearly a review of the merits.  That is the end of the matter and the Court has no power to ask for or receive a translation of the letter.  Suppose that the Applicant says: “I handed the letter to the Tribunal, they looked at it but decided to give it back to me without saying more”, an application for review on this ground is also an application for review of the merits and not amendable to review by the Court.  However, if the Applicant says, the Tribunal refused point blank and without giving any reasons for refusing to accept a letter which I wanted it to consider, is that a breach of natural justice or procedural impropriety?  Is the Court able to ask for a translation of the letter to determine whether the Tribunal should have accepted it or whether the letter might have affected the outcome?  Now if we stop there for a moment and think about what the Court is asked to do, I think it becomes clear that too is a review of the merits.  The Court is being asked to look at the translation of the letter and to determine whether what was said in the letter is relevant to or would have affected the Tribunal decision, applying Fijian customary law because the Tribunal has to make its decision according to such customary law.  This is the very task that the Tribunal is empowered by the Act to do and the very thing that the Act prohibits the Court from doing. In other words, where the Applicant says that the Tribunal did not accept evidence or took in evidence but did not give sufficient weight to it, then any application for review based on these grounds is an application for review of the merits and non-judiciable.  The Courts have no jurisdiction in any of those types of applications.  Following on from that, once the Tribunal enters into an inquiry, whatever decision that it comes up with cannot be challenged in a Court however undesirable the outcome might be to the parties concerned or to the public at large”.
“However, if the Applicant says that she was not given an opportunity to be heard at all despite her asking and the Tribunal gave no explanation as to why they refused her, then that in my view would amount to breach of natural justice and procedural impropriety.  It could also show bias, actual or apparent.  The law that is applicable here is not Fijian customary law but the common law of Fiji.  She has a right given by the Act, i.e. by the general law of Fiji, and her rights are covered by the general law which includes the common law right to be heard”.
“The fallacy in accepting the English decision in my view, with the greatest of respect, is the mistaken assumptions that the Court is dealing with English law and that the Court is equipped to deal with Fijian customary law.  The disputes to be decided by the Tribunal concern Fijian customary law.  The examples that I have given above clearly demonstrate that the only occasion that the Court is allowed to interfere is when the Applicant is refused point blank by the Tribunal without the Tribunal giving any reasons why he or she was not heard.  Once the Tribunal embarks on an inquiry, the Court has no jurisdiction to review whatever the decision that the Tribunal makes.  Such an outcome was acknowledged and left open by the Privy Council in Harrikssoon.  Also, perhaps this was one of the reasons why the Court of Appeal in the Taukei Vidilo No. 1 case had reservations about applying the English decisions to an ouster clause concerning Fijian customary law”.
“The reason that I say the two systems of law complement rather than compete against each other is this.  The Act says that the resolution of dispute as to headship shall be decided according to Fijian customary law.  Section 17 of the Act gives the applicant a right to have her grievance heard by the Commission. The Supreme Court decision in the Taukei Vidilo No 2 case, Satala v Bouwalu [2008] FJSC 20, now says that the Commission has a discretion whether to hear her grievance or not.  If the Commission says it does not want to hear the application then that is the end of the matter.  The common law and the statute law of Fiji (together the ‘general law’) does not give the applicant the right to force the Commission to hear her grievance.  The end result is that whatever decision that was made by the Fijians themselves at the village level remains, and the wish to legislature is fulfilled.  If the Commission decides to hear her grievance, and she does not agree with the decision, she has a right under section 7 of the Act to appeal to the Tribunal to review the decision of the Commission.  The question whether the Tribunal has a discretion to hear her or not has not been decided by the Court as yet and I leave that open to be decided when the appropriate case comes before the Courts.  Now section 7(5) says that the decision of the Tribunal is “final and conclusive and cannot be challenged in a court of law” and, if I am correct in my assessment of the law, that is the end of the matter.  Again, the Tribunal has reached its decision according to Fijian customary law, the wish of the legislature has been met and the Court has no power to interfere”.
25.	After counsel concluded submissions on the day of the hearing, court made a direction for the Appeal Tribunal’s decision and other documents attached to the applicant’s affidavit to be translated to English and filed in court as several of the documents were in the itaukei language. This has not been done until now. 

26.	The onus of proof is on the party alleging a breach of natural justice by the Appeals Tribunal. In The State v Native Lands Appeals Tribunal, Ratu Williame Ratudale Sovasaova and Adi Makereta Marama Roko Tui, the court stated that it is the applicant that has the onus of proof of whether there has been procedural impropriety or breach of natural justice.

27.	For these reasons, the preliminary objection is upheld. In the pleaded circumstances, section 7 (5) of the iTaukei Lands Act ousts the court’s jurisdiction to hear the application for leave to review the Appeals Tribunal’s decision.    

ORDER
A.	The objection to jurisdiction raised by the respondents is upheld. 

B.	The applicant’s summons filed on 15 August 2019 is struck off.

C.	The applicant is to pay the fourth respondent costs summarily assessed in a sum of $1,000.00 within three weeks of this decision. 
Delivered at Suva on this 6th day of April, 2022

M. Javed Mansoor
Judge