IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 23 of 2021

BETWEEN

RATU VONIVATE DRAUNANUMA a traditional/customary chief of Narewa Village, Nadi, suing in his personal capacity as the Turaga Ni Mataqali Nakoyo of the Yavusa Sila and Turaga Ni Yavusa Sila of Narewa Village, Nadi, and in a representative capacity for and on behalf of the members of the Yavusa Sila of Narewa Village, Nadi and in a representative capacity for and on behalf of the members of the Yavusa Navatulevu and Yavusa Nabati of Narewa and Nakuvu Village, Nadi.

PLAINTIFF

AND

VUNIANI NAVUNIUCI a Villager of Narewa Village, Nadi, a trustee of a trust known as the Yavusa E Tolu Gopher Trust.

1ST DEFENDANT

AND

AMENIASI TURAGA TUIDRAKI a Village of Narewa Village, Nadi, a trustee of a trust known as the Yavusa E Tolu Gopher Trust.

2ND DEFENDANT

AND

LORIMA DUAKA NABETE a Villager of Narewa Village, Nadi, a trustee of a trust known as the Yavusa E Tolu Gopher Trust.

3RD DEFENDANT

AND

SEKOVE TUILAKEBA  a Villager of Narewa Village, Nadi, a trustee of a trust known as the Yavusa E Tolu Gopher Trust.

4TH DEFENDANT

AND
NEMIA VUNIMAKADRE a Villager of Narewa Village, Nadi, a trustee of a trust known as the Yavusa e Tolu Gopher Trust.

5TH DEFENDANT

AND

SAMUELA TUIDRAKI a Villager of Narewa Village, Nadi, a trustee of a trust known as the Yavusa E Tolu Gopher Trust.

6TH DEFENDANT

AND

MENIA DAWAI a Villager of Narewa Village, Nadi, a trustee of a trust known as the Yavusa E Tolu Gopher Trust.

7TH DEFENDANT

AND

TEVITA DAWAI a Villager of Narewa Village, Nadi, a trustee of a trust known as the Yavusa E Tolu Gopher Trust.

8TH DEFENDANT

AND

SAILIA PIO a Villager of Narewa Village, Nadi, a trustee of a trust known as the Yavusa E Tolu Gopher Trust.

9TH DEFENDANT

AND

IOSEFO VEREIVALU (ROKO) a Villager of Narewa, Nadi, a trustee of a trust known as the Yavusa E Tolu Gopher Trust.

10TH DEFENDANT

AND

ITAUKEI LAND TRUST BOARD a statutory body corporate established under the iTaukei Land Trust Act [Cap 134] (as amended) and having its registered office at 431 Victoria Parade, Suva.

11TH DEFENDANT
Before			:	Master U.L. Mohamed Azhar
Counsels		:	Mr. I. Fa for the Plaintiff
				Mr. M. Naivalu for the First the 1st to 10th Defendants
				Mr. M. Rasiga for the 11th Defendant

Date of Ruling		:	02.06.2025

RULING

01.	The plaintiff, as per the amended Writ filed on 10.02.2021, is a member of Mataqali Nakoyo of the Yavusa Sila of Narewa village. He is the Turaga Ni Nakoyo and the holder of the traditional and customary title of the Turaga Ni Yavusa Sila.  There are two more Yavusas within Narewa village. They are Yavusa Navatulevu and Yavusa Noi Yakakuilau (Nabati). The Yavusa Sila, Yavusa Navatulevu and Yavusa Noi Yakakuilau (Nabati) are collectively called as the Yavusa E Tolu of Narewa. 

02.	Yavusa E Tolu are the owners of vast iTaukei land in Nadi. There are 2000 living individual members of Yavusa E Tolu, who are registered in the Register of Native Land (Vola Ni Kawa Bula – VKB). The 1st to 10th Defendants are members of Yavusa E Tolu, and they created Yavusa E Tolu Gopher Trust on 05.07.2018 on behalf of Yavusa E Tolu. By virtue of the said Trust, the 1st to 10th are authorized to receive lease and or rental monies from the 11th Defendant from leasing of iTaukei land belong to Yavusa E Tolu. The 1st to 10th defendants are also authorized by the said Trust to make decision on behalf of Yavusa E Tolu in dealing with iTaukei land belong to Yavusa E Tolu.

03.	The plaintiff claimed that, the 1st to 10th defendants unlawfully and fraudulently created Yavusa E Tolu Gopher Trust. The plaintiff further claimed that, the members of Yavusa E Tolu neither intended, nor did they consent to for their lease rentals from leasing of their iTaukei land be given to, and administered by Yavusa E Tolu Gopher Trust. The plaintiff alleged that, the 1st to 10th defendant misrepresented to the 11th defendant that the members of Yavusa E Tolu authorized to create Yavusa E Tolu Gopher Trust to receive the rental monies from leasing of their iTaukei land. 

04.	Meanwhile, the plaintiff claimed that, the 11th defendant breached its fiduciary duty by paying the lease monies to the Yavusa E Tolu Gopher Trust, instead of paying to individual members of Yavusa E Tolu, who are registered in the Register of Land (VKB).  The plaintiff therefore moved the court for, among other reliefs, a declaration that, the said Yavusa E Tolu Gopher Trust illegal and invalid; a declaration that the 1st to 10th defendant illegally and fraudulently created such Trust; an order for account of monies received from the 11th defendant; and order restraining the 11th defendant from paying the lease monies to Yavusa E Tolu Gopher Trust, together with damages and interest.

05.	The 1st to 10th defendants filed a summons pursuant to Order 18 rule 18 (1) (a) of the High Court Rules to strike out the plaintiff’s action on the ground that, this court has no jurisdiction to hear and determine the dispute in this matter. 

06.	At hearing of the summons, Mr. Naivalu cited the section 16 (1) of the iTaukei Lands Act 1905 (formerly known as Native Lands Act 1905 and hereinafter referred to as the Act) and submitted that, this court has no jurisdiction to hear and determine the plaintiff’s claim and it should be referred to the Minister under that section. The said section 16 (1) provides as follows:

In the event of any dispute arising the parties to which are iTaukei in connection with land in a province or tikina in which the proprietorship of the iTaukei owners has been ascertained by the Commission or in a province or tikina which it may be inconvenient or inexpedient for the Commission to visit without delay or in any other case when he or she may deem if expedient, the Minister may delegate a member of Commission or some other person to inquire into the same.

07.	Mr. Naivalu relied on the decision in Varo v Varo [2010] FJHC 408; HBC234.2008L (5 August 2010) in support of his contention. The claim in that case was similar to what is before the court in this case. Inoke J referred to the above section of the Act and dismissed the claim. Inoke J gave wider interpretation to the phrase “connected with” in the above section and stated that:

The aim of the Act seems to me to be that all disputes between Fijians in connection with their lands, customs and traditions are to be resolved by the Fijians themselves, the Native Lands Commission, the Appeals Tribunal or the Minister responsible. They are better equipped to hear and resolve such disputes which require inquiries into Fijian custom and tradition. I therefore give a wide interpretation to the phrase “connected with” as used in s 16 of the Native Lands Act.

08.	Conversely, Mr. Fa submitted that, the above section only applies in instances where there is a dispute as to ownership of iTaukei lands which has been determined by the iTaukei Lands Commission. The counsel further submitted that, this position was confirmed by the Full Court of Appeal in Namatua v Native Lands and Fisheries Commission [2005] FJLawRp 11; [2005] FLR 60 (4 March 2005). The counsel also cited the paragraph 9 of the judgment of Court of Appeal in that case. The said paragraph is as follows:

[9] Where there is a dispute in relation to ownership of land which has already been ascertained by NLC, as in the present case, the Minister may delegate the powers to a commissioner or some other person to inquire into the dispute (s 16(1) of the NLA). The Minister shall appoint one or more persons being native Fijians to sit as assessors to determine the dispute (s 16(2) of the NLA).

09.	In addition, Mr. Fa submitted that, the powers of the iTaukei Lands Commission are clearly set in section 4 of the Act  and the contention of the 1st to 10th defendants that, this matter should be before the iTaukei Lands Commission is factually and legally incorrect. Meanwhile, Mr. Rasiqa submitted that, section 16 the Act excludes the court from hearing disputes falling under that section. However, he submitted that, the disputes in this case are within the jurisdiction of this court. 

10.	In has now become necessary to examine the Act to determine the disputes that are excluded from the jurisdiction of the court and that should be dealt with in accordance with the provisions of the Act. This requires interpretation of relevant provisions of the Act. The courts have been using several ways and rules to interpret the statutes in order to determine the intention of the legislature. The literal rule is to seek the intention of the legislature through an examination of the language in its ordinary and natural sense even if the result to be inconvenient or impolitic or improbable (Higgins J. in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129, McHugh J. in Hepples v FCT [1992] HCA 3; (1991-1992) 173 CLR 492, 535-6, preferred this method of interpretation even if it produces "anomalies or inconveniences". Courts have stressed this rule of interpretation to the extent that they "cannot depart from the literal meaning of words merely because the result may ... seem unjust" (CPH Property Pty Ltd & Ors v FC of T 98 ATC 4983, 4996 per Hill J.) Lord Diplock in Duport Steels Ltd v Sirs [1980] 1 All ER 529, 541 stated 

"…the role of the judiciary is confined to ascertaining from the words that the Parliament has approved as expressing its intention what that intention was, and to give effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences of doing so would be inexpedient, or even unjust or immoral".

11.	On the other hand, the purposive rule of interpretation is to interpret the legislation to find the purpose for which the Parliament passed that legislation and to give effect to such purpose. This allows the court to use the extrinsic tools such as Parliamentary debate or Committee Report or Hansard. The basis of this rule is that, statutory interpretation cannot be founded on the wording of the legislation alone (per Iacobucci J in Re Rizzio & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, at paragraph 21). The purposive approach was explained by Kirby J in Federal Commissioner of Taxation v Ryan, (2000) 42 ATR 694, at pages 715 and 716, as follows:
“In the last decade, there have been numerous cases in which members of this court, referring to the statutory and common law developments, have insisted that the proper approach to the construction of federal legislation is that which advances and does not frustrate or defeat the ascertained purpose of the legislature, to the full extent permitted by the language which the Parliament has chosen. Even to the point of reading words into legislation in proper cases, courts will now endeavor, more wholeheartedly than in the past, to carry into effect an apparent legislative purpose. Examples of this approach abound in Australia, England and elsewhere. This court should not return to the dark days of literalism”.    
12.	The other rule, which falls middle of the above mentioned two rules, is the golden rule. This rule takes middle path between above two rules and embraces both ordinary meaning of the language and the manifest purpose of the legislation. Viscount Simon LC explained this approach in Nokes v. Doncaster Amalgamated Collieries Ltd. [1940] 3 All ER 549 at pages 553 and 554 as follows:-
“The principles of construction which apply in interpreting such a section are well –established. The difficulty is to adapt well- established principles to a particular case of difficulty. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. We must not shrink from an interpretation which will reverse the previous law, for the purpose of a large part of our statute law is to make lawful that which would not be lawful without the statute, or, conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words, but, where, in construing general words the meaning of which is not entirely plain, there are adequate reasons for doubting whether the legislature could have been intending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result”. (Emphasis added).   

13.	When interpreting the Act too, the court should endeavor to prima facie give ordinary meaning of its words whilst avoiding a construction that would reduce the legislation to futility if the court is to choose between two interpretations and the narrower of which would fail to achieve the manifest purpose of the legislation. 

14.	The Act, formerly known as the Native Lands Act 1905 was the result of the investigation conducted by the Lands Claims Commission established under the Land Claims Ordinance 1876. It was then decided to give certain lands to indigenous people under the Native Lands Ordinance 1882 which later became the Native Lands Act 1905. Accordingly, the Act aimed at defining and protecting iTaukei ownership of land whilst ensuring that the iTaukei land remains under the traditional system of iTaukei people.

15.	Examination of various provisions of the Act clearly demonstrates that, the Act mandated that, the iTaukei land would be held by iTaukei according to their customs and traditions; legalized and codified the iTaukei land ownership scheme (Mataqali ownership system); created separate dispute resolution methods in accordance with the iTaukei customs and traditions; and established a system to administer and manage the iTaukei lands for the benefits of the people. The main mechanism to solve the disputes in accordance with the iTaukei customs and tradition is the iTaukei Lands Commission (the Commission) appointed under section 4 of Act. 

16.	Primarily, the Commission is charged with the duty of ascertaining what lands in each province of Fiji are the rightful and hereditary property of iTaukei owners, whether of mataqali or in whatever manner or way or by whatever divisions or subdivision of the people the same may be held. In addition, the Commission, pursuant to section 6 of the Act, is empowered to inquire into titles and describe boundaries of lands claimed by Mataqali or other division or subdivision of the people. Moreover, the Commission, pursuant to section 17 of the Act, may inquire into any dispute arising between iTaukei as to the headship of any division or subdivision of the people having customary right to occupy and use any iTaukei lands.
 
17.	The section 7 of the Act establishes an Appeal Tribunal to hear and determine the decisions made under the Act. A plain reading of section 7 clearly demonstrates that, the Appeal Tribunal is to hear the appeals not only from the Commission established under section 4 of the Act, but also from the decision of a Commissioner under 16 of the Act. The said section is as follows:

7 (1) There is hereby constituted an Appeal Tribunal consisting of a chairperson and 2 other members all to be appointed by the Minister. It shall be the duty of the Appeal Tribunal to hear and determine appeals from decisions of the Commissioner under sections 6 and 17 and from a commissioner under section 16, and any such determination by the Appeal Tribunal shall be final. (Emphasis is added).

18.	The above section, as emphasized, stipulates that there are two separate decision making processes under the Act. One is the process by the Commission appointed under section 4 of the Act. The Commission exercises the powers pursuant to sections 6 and 17 of the Act. The sections 6 and 17 of the Act clearly spell out the claims that the Commission may inquire into. 

19.	The other is the process by a member of the Commission or by some other person as delegated by the Minister under section 16. The section 16 stipulates the second process and it reads as follow:
Settlement of disputes between iTaukei in special cases
16 (1)	In the event of any dispute arising the parties to which are iTaukei in connection with land in a province or tikina in which the proprietorship of the iTaukei owners has been ascertained by the Commission or in a province or tikina which it may be inconvenient or inexpedient for the Commission to visit without delay or in any other case when he or she may deem it expedient, the Minister may delegate a member of the Commission or some other proper person to inquire into the same.

(2)	It shall be lawful for the Minister to appoint one or more persons being iTaukei to sit as assessor or assessors with the commissioner appointed as aforesaid.

(3)	For the purpose of holding an inquiry under subsection (1), the commissioner shall have the same powers as those vested in the Commission and shall follow the same procedure as is laid down for the Commission in inquiries.

(4)	During such inquiry the commissioner shall take or cause to be taken a full account in writing of all proceedings and of the evidence.

(5)	On the conclusion of any inquiry held under subsection (1) the commissioner holding it shall inform the parties interested of his or her decision and shall transmit a copy of his or her decision to the scribe of the province in which the land is situate and such decision shall be publicly read at the next meeting of the provincial council.

20.	The above mentioned section 16 of the Act is crucial for the determination of the summons filed by the 1st to 10th defendants. The question is what dispute falls under this section? Mr. Naivalu argued that, the dispute between the plaintiff and the 1st to 10th defendants falls under this section. Mr. Fa submitted that, only the dispute as to the ownership of the iTaukei land falls under this section. 

21.	I am unable to agree with Mr. Fa for several reasons. Firstly, the inquiry into the ownership and boundaries of iTaukei lands is covered under section 6 of the Act and the Commission is empowered to inquire claims related to ownership and boundaries of iTaukei lands. Therefore, there is no necessity to bring the same dispute under another section namely section 16. Secondly, if the legislature intended as submitted by Mr. Fa, it would not have used the phrase “any dispute”, but would have specified it to refer to dispute of ownership. 

22.	Thirdly, the legislature used the phrase “any dispute”. The phrase “any dispute” in its ordinary meaning covers all disputes. However, the legislature in its wisdom has qualified such dispute by specifying its two necessary elements, in order to avoid the doubt. The elements are emphasized in the above section and they are (a) parties of such dispute should be iTaukei and (b) the dispute should be connected with iTaukei lands. Fourthly, the sub-heading to this section 16 indicates that, the dispute in this section refers to the disputes between iTaukei in special cases. It should be noted that, in common law jurisdictions the subtitles are generally used as aids in interpretation of statutes. Accordingly, if the parties to any dispute are iTaukei and the dispute is connected with iTaukei land such dispute falls under section 16 of the Act and it must be referred to the Minister responsible for iTaukei land. If any of the two elements are not available in any dispute, such dispute will not fall under section 16 of the Act. 

23.	If any dispute qualifies as mentioned above, the court has no jurisdiction to hear it. It should be referred to the Minister. The Minister may delegate such dispute to a member of the Commission or to some other person to inquire into and determine it in accordance with the iTaukei customs and traditions. 

24.	Accordingly, the Act provide for two separate dispute resolution methods. The first and primary method is by the Commission established pursuant to section 4 of the Act. The Minister shall appoint one or more commissioners. The Roko of the province in which the Commission is conducting an inquiry shall be ex officio member of the Commission. The Commissioner of the Division or the Roko shall convene a special meeting of provincial council before the Commission conducts it inquiry. The provincial council shall at the said meeting, elect one or two persons to sit as assessors at the sitting of the Commission for the purpose of conducting inquiries. The Commission under this method enquires into major disputes connected with the iTaukei customs and traditions. They are the disputes in relation to ownership of iTaukei lands or the boundaries and the disputes relating to headship of Mataqali pursuant to sections 6 and 17 of the Act respectively. The appeal from any decision of the Commission lies to the iTaukei Appeal Tribunal established under section 7 of the Act.

25.	The second method is either by a member of the Commission or some other person as delegated by the Minister pursuant to section 16 of the Act. Any dispute of iTuakei people in connection with iTaukei lands is to be referred to the Minister responsible for iTaukei lands and it should be resolved by a member of the Commission or any other proper person as delegated by the Minister. Unlike in the first method, the assessors for the purpose this second method, are appointed by the Minister pursuant to section 16 (2) of the Act, and they are required to be iTaukei. 

26.	The iTaukei customs and traditions are unique. The lifestyle, customs and traditions of the iTaukei are closely connected with the iTaukei lands, their ownership, boundaries and the persons who can provide territorial/provincial leadership. The Act was brought for the purpose of codifying, legalizing, protecting and preserving those customs and traditions. The legislature in its wisdom recognized that, there could be disputes/claims in implementing the customs and traditions. The legislature intended to resolve them in accordance with those customs and tradition. That is why the Roko of particular province is made ex officio member of the Commission and the Minister is empowered to appoint assessors from iTaukei people under section 16 (2) of the Act.  The legislature then identified major areas of disputes/claims. They are the claims on ownership of iTaukei lands and the boundaries and the claim over the headship. The Act then specifically brought them under iTaukei Lands Commission through section 6 and 17 of the Act. 

27.	The legislature also in its wisdom realized that there could be other disputes involving iTaukei people and their lands, and also intended those too, to be determined in accordance with the customs and traditions of the iTaukei. Therefore, it used the phrase “any dispute” to cover all of them, because the legislature could not give an exhaustive list of disputes. Thus, the legislature qualified such disputes by specifying two elements, as discussed above, to bring them in line with the purpose of the Act, and to exclude other disputes which are not connected with iTaukei people and their lands. As such section 16 covers all disputes in which parties are iTaukei and connected with iTaukei lands.

28.	This interpretation to section 16 of the Act is not only consistent with the meaning of the words used in section 16 of Act, but also manifestly reflects the very purpose of the Act. Therefore, interpreting the section 16, as argued by Mr. Fa, as referring to only the dispute of ownership of iTaukei land would reduce the Act to futility, and I disagree with him.

29.	The plaintiff pleaded two causes of action in this case. The first cause of action is against the 1st to 10th defendants. This cause of action arose out of a dispute between them. All the parties to this dispute are iTaukei. The dispute is in connection with iTaukei land that belongs to the mataqali as mentioned at the beginning of this ruling. This dispute, as per the above interpretation, falls under section 16 of the Act and it should be referred to the Minister responsible for iTaukei lands. Accordingly, I agree with the submission of Mr. Naivalu – the counsel for the 1st to 10th defendants. Thus, I follow the decision of Inoke J in Varo v Varo (supra) and decide that, this court has no jurisdiction to hear this dispute between the plaintiff and the 1st to 10th defendants. 

30.	It is the well settled law that, when a statute provides for special remedy and the forum for enforcement, a party seeking to enforce such right should resort to such remedy or tribunal. In Wilkinson v. Barking Corp. [1948] 1 All ER 564: at 567; [1948] 1 KB 721 at 724 Asquith, L.J. said:
"It is undoubtedly good law that, where a statute creates a right and in plain language gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort this remedy or this tribunal and not to others."
31.	The plaintiff’s second cause of action is against the 11th defendant. As mentioned above, it is breach of fiduciary duty by failing to examine the Trust Deed submitted by the 1st to 10th defendants and paying lease money belonging to the members of the Yavusa E Tolu to the 1st to 10th defendants. This cause of action does not fall under section 16 of the Act. However, this cause of action is consequent to the first cause of action pleaded against the 1st to 10th defendant. In other words, the second cause of action against the 11th defendant will accrue only if the first cause of action is determined in favour of the plaintiff under section 16 of the Act. If the first cause of action is determined against the plaintiff, the second cause of action against the 11th defendant does not arise at all. It is premature to maintain this second cause of action against the 11th defendant. The plaintiff therefore cannot maintain this second cause of action against the 11th defendant now. 

32.	Accordingly, I decide that, this court has no jurisdiction to hear the dispute between the plaintiff and the 1st to 10th defendant. The dispute falls under section 16 of the Act and should be referred to the Minister. The second cause of action against the 11th defendant may arises only if the dispute between the plaintiff and 1st to 10th defendant is decided under section 16 of the Act in favour of the plaintiff. As such, the plaintiff’s action ought to be struck out for want of jurisdiction. Furthermore, it is the interpretation of certain provisions of the Act that is involved in this application filed by the 1st to 10th defendant. Therefore, I decide not to award costs in this matter. 

33.	In result, I make the following orders:

a.	The plaintiff’s action is struck out, and
 
b.	The parties should bear their costs.  

U.L Mohamed Azhar
Master of the High Court

At Lautoka
02.06.2025