|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Fiji Law Reports |
HIGH COURT OF FIJI ISLANDS
STATE
v
THE NATIVE LANDS COMMISSION AND
RATU JEREMAIA NAITAUNIYALO NO. 2
ex-parte:
RATU AKUILA KOROIMATA
[HIGH COURT, 1997 (Byrne J) 23 April]
Revisional Jurisdiction
Constitution- customary law- whether decision of Native Lands Commission subject to judicial review. - Constitution (1990) Section 100 (4).
In a preliminary ruling the High Court HELD: that when it was intended to allege that the Native Lands Commission had reached a decision
in breach of the rules of natural justice section 100 (4) of the 1990 Constitution was no bar to leave to move for judicial review
of the decision being granted.
Cases cite>
Ratu Isireli Rokomatu Namulo v. Native Lands & Fisheries Commission & Ors -HBJ 0002 of 1995L
RiRidge v. Baldwin [1963] UKHL 2; [1964] A.C. 40.
>Appr>Application for leave to move for judicial review in igh Court.
T. Fa he Applicant
S. RabukRabuka for thor the First Respondent
K. Vuataki
By:
A de haden between the the Aphe Applicant and the Second Respondent as to who should hold this title and the matter was referred
to theve Lands Commission for its decision under Section 17(1) of the Native Lands Act Cap. 133.<160;
Numerous rous affidavits have been filed on behalf of the parties, the drafting of , particularly in the case of those filed by the
Applicant,cant, leaves much to be desired. All too frequently they contravene Order 41 Rule 5 of the Rules of the High Court in that
they do not contain only such facts as the deponents are of their own knowledge able to prove but rather are in many instances argumentative
and too often also contain submissions on the law. This is not the first time I have had to comment adversely on affidavits in clear
breach of Order 41 Rule 5. I have also commented adversely in the past on affidavits which are not phrased in acceptable English
but use the vernacular. A classic example of this appears in paragraph 12 of the affidavit of the Applicant sworn on the 16th of
May 1995 in which the Applicant denies the right of the First Respondent to make the Second Respondent a Chief under the custom of
Malolo Island. As to this the Applicant says “It is not on”. Presumably this is intended to mean that the Commission
had no such right but the use of the slang expression does nothing to enhance the dignity of the law or the depth of the Applicant’s
vocabulary or, as I think more than likely, that of his counsel.
Theen of the Applicant&cant’s complaint is that when the First Respondent sat at Sigatoka on 30 June 1994 to decide who should
hold the title of Turaga Na Tui Lawa it denied the Applicant natural justice by not giving him an opportunity to comment on two letters
purportedly signed by the Applicant, the Second Respondent and other persons.
etter of the 19th of Apof April 1983 is addressed to the Commissioner, Native Lands Commission, Ministry of Fijian Affairs, Suvacontains
four paragraphs. A copy of this letter is annexed to the affidavit of Nacanieli Nali Nabukavou, Senior Assistant Commissioner of
Native Lands Commission sworn on 23rd of August 1995 and obviously drafted in the Attorney-General’s Chambers, Suva.
As the First Respondid did not provide an English translation for this letter I have had one prepared by a senior Fijian Officer
of this Court which, omitting relevant parts, reads as follows:
̶h regard to thto the position of Head of the Mataqali Ketenimasi, Yavusa Lawa of Yaro, which was discussed on 28/3/83 at Yaro. They have installed Serupepeli Nawho is sixth in line, (the youngest) according to our RegisRegister of descendants of the Tokatoka Nabukelevu.
Since Akuila Koroimaroimata is still alive and he being the rightful holder of the title, which was taken away from him for basives and rivalry, I request that you give him his share of the lease as Head of the Mataqaltaqali as it is his rightfully since he is a true descendant.
Ratu Jeremaia Matai’s position is confirmed as he is officially registered by you. He is also to receive his share as Head of the Mataqali Ketenimasi, of the Yavusa Lawa, of Yaro. He is also a rightful ndant.
We aquesting ting that you consider the matter very deeply, so it would not disrupt our sacred Chieftainship, for the love of money
and changes brought about by time. Your assistance will be highly appreciated.”
Thortant paragraph for for present purposes is the third but the First Respondent also relies on a letter of the 18th of May 1983opy
of which has been annexed to any affidavit so far filed on behalf of any of the partiesrties. According to the Applicant he was one
of the signatories to this letter which he says contains the phrase Na Tui Turaga (our Chief), referring to the Second Respondent.
According to pplicant tant the First Respondent concluded that the inclusion of the Applicant’s name showed that he supported
and accepted the Second Respondent as his Chief. The Applicant denies this.
As to the letter of tth 19th of April the Applicant denies that the signature bearing the name Akuila Koroimata is his signature and
argues that by fg to invite him to comment on both these letters the Commission committed a breach of the rthe rules of natural justice.
Therno doubt in my judg judgment that the Applicant and the Second Respondent gave evidence at the hearing of the Commission on 30th
1994. Whilst it is only fair to say even at this stage that I have serious reservations abns about the claim made by the Applicant
against the Commission, nevertheless in my judgment a clear issue of fact arises in this case which is referred to in paragraph 50
of Mr. Nabukavou’s affidavit of the 23rd of August 1995. He there deposes that opportunities were available to the Applicant
at the hearing to ask for correspondence to be produced after the Respondent had informed the parties of its existence.
Both Respondents reliet on the decision of the Court of Appeal in Civil Appeal No. 55 of 1993 Ratu Nacanieli Nava viveative Lands Commission an Native Land Trust Board oard dated 11th November 1994 and a subsequent decision of Lyons Jivered on 4th December 1995 in Judicial
Review No. HBJ0002 of 1995L . Both judgments rely on Section 100(4) of the 1990 Constitution which reads:
R) ҈
#160;   the purpo e of this Chis Constitution the opiniopinion or decision of the Native Lands Comon on
(a) n&#ma0; rs telating tong to and and concerning Fijian customs, traditions and usages or xistence, extent, or application of customary laws; and
(b) & disputes as to s to the hehe headship of any division or sub-division of the Fijian people having the customary right to
occupy and use any native lands, shall be final oncluand snot be challenged in a in a cour court of t of law.”
In N8217;& case thse the Court held teat Section 100(4) precluded the questioning in any Court of law including the High Court of any decision
or opinion given by the Native Lands CommissoncerSecti(1) of ) of the&#the Native Lands Act relating to any dispu to thto the headship of any division or sub-division of the Fijian people having the customary right to occupy
and use any natind under the Native Lands ands Act.
Purporting to follow;
Wieat respect pect to m to my learned brother I do not take the Court of Appeal to be saying in
So to hold would in ew view fly directly in the face of what Lord Reid said in Ri. Baldwin [190;[1964] A.C.40.80:
&
“Tim time agae again in the cases I have cited it has statat a decision givn given without regard to the principles of natural
justice is void and thnd that was expressly decided in Wood vd;(1874) LR 9 LR 9 Ex.1 Ex.190. I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proto
make a decision until it has afforded to the person affected a proper opportunity to stao state his case.”
It me observed that in&t in Nava&;s case thse there was no aliogation of failure by the Commission to follow properedures. The question simply was which of two contesting
brothers should be held to be the pthe principal Chief in the Vanua Vidilo. After earing the Commission appoiappointed neither of
the two contestants but an outsider in an acting capacity to give the two principal contestants more time to prepare themselves for
the position of leadership that awaited them in the future. (Nava’s case p.4 of Court of Appeal judgment.)
In my judgmeerefore thee the Applicant’s counsel is correct when he says at p.19 of his submission of the 22nd of November 1996
that a decision or opinion of the Native Lands Commission would only qy for protection under Sect Section 100(4) (a) and (b) of the
Constitution if it is not taken in breach of the principles of natural justice. Whether or not such principles have been breached
in the present case is a question of fact which can only be decided after a hearing. I therefore intend to allow evidence to be called
on the matter raised by the First Respondent in paragraph 40 of the affidavit of Nacanieli Nabukavou of the 23rd of August 1995 on
the question of whether the Commission drew the attention of interested parties to the existence of the letters dated 19th April
1983 and 18th May 1983. If I am satisfied that it did then it seems to me that the Applicant may well have to fail in his application
for judicial review.
As to this howeverhis shis stage of course I express no concluded opinion. I shall fix a date for the hearing of such evidence on
the delivery of ruling.
(Preliminary g in fain favour of the applicant).
(
(EditorRNote: -te: - an appeal against this ruling was dismissed by the Fiji Court of Appeal on 13 November 1998 - FCA Reps 98/455).
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJLawRp/1997/16.html