Rokomatu Namulo v Native Lands & Fisheries Commission [1995] FJHC 13; Hbj0002d.1995l (4 December 1995)

Fiji Islands - Rokomatu Namulo v Native Lands & Fisheries Commission - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0002/95L

BETWEEN:

RATU ISIRELI ROKOMATU NAMULO
APPLICANT

AND:

NATIVE LANDS AND FISHERIES COMMISSION
1^ST RESPONDENT

THE PERMANENT SECRETARY FOR FIJIAN AFFAIRS
2^ND RESPONDENT

THE NATIVE LAND TRUST BOARD
3^RD RESPONDENT

THE ATTORNEY GENERAL OF FIJI

4^TH RESPONDENT

NAPOLIONI NAULIA RAGIGIA DAWAI
5^TH RESPONDENT

Date of Hearing: 13^th November 1995
Date of Decision: 4^th December 1995

DECISION

This is an application pursuant to O.53 r.3 of the High Court Rules for Leave to apply for Judicial Review in respect of a decision of the 1st Respondent of the 30th November 1994 in endorsing the decision of the Roko Tui Ba that the 5th respondent be installed as the Turaga Tui Nadi.

The preliminary point raised by Counsel for the 5th respondent, and supported by Counsel for the other respondents, is that this Court is not empowered to hear this application being so excluded by the provisions of Section 100(4) of the Constitution.

It is to this narrow issue that I turn my attention for that in my view, will determine this application.

Section 100 (4) of the Constitution reads:

"100 - (1) Parliament shall make provision for the application of laws, including customary laws.

(2) In exercising it's powers under the preceding subsection, Parliament shall have particular regard to the customs, traditions, usages, values and aspirations of the Fijian people.

(3) Until such time as an Act of Parliament otherwise provides, Fijian customary law shall have effect as part of the laws of Fiji:

Provided that this subsection shall not apply in respect of any custom, tradition, usage or values that is, and to the extent that it is, inconsistent with a provision of this Constitution or a statute, or repugnant to the general principles of humanity.

(4) For the purposes of this Constitution the opinion or decision of the Native Lands Commission on:

(a) matters relating to and concerning Fijian customs, traditions, and usages or the existence, extent, or application of customary law; and

(b) disputes as to the 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 and conclusive and shall not be challenged in a court of law."

One must also bear in mind that Section 101(2) of the Constitution also reads:

"No court shall be vested with jurisdiction save as is or may be conferred on it by this Constitution or by any other law."

Counsel referred me to the decision of the Court of Appeal in RATU NACANIELI NAVA -v- THE NATIVE LANDS COMMISSION AND THE NATIVE LANDS TRUST BOARD (CIVIL APPEAL NO. 55/1993) and I propose to determine the application before me as did the Court of Appeal:- that is on the jurisdictional point raised by Section 100(4) of the Constitution.

As the COURT OF APPEAL said at p.10 of its decision

"The intention of S.100(4) is quite clear that once the Commission decides these matters, these decisions or opinions cannot be questioned or challenged in any court of law including the High Court."

And further at. p.11.

"In the present case, what the appellant sought to do in the High Court was to question or challenge the decision of the Commission on the content or the extent of the Fijian customs and their application to the chiefly position in this particular case. Section 100(4)(a) and (b) of the Constitution clearly protects the decision of the Commission in both respects and the High Court has no jurisdiction to review the decision. We agree with both counsel who conceded that there is no way of getting around S.100(4) of the Constitution. Therefore we conclude that the trial judge erred in law in proceeding to deal with the application for leave for judicial review. We find it unnecessary to deal with the grounds of Appeal."

Counsel for the applicant has based his argument on further comment by the Court of Appeal in the RATU NAVA case in particular the manner in which the Court of Appeal dealt with the decision of the Chief Justice in the case of BULOU ETA KACALAINI VOSAILAGI of Cuvu Nadroga -and- THE NATIVE LANDS COMMISSION & RATU SAKIUSA KURUICIVI MAKUTU of Cuvu Nadroga & NATIVE LAND TRUST BOARD (High Court Civil Action No. 19 of 1988) (Unreported Judgment of the High Court dated 22 June 1989).

After noting that the decision of the Chief Justice was prior to the 1990 Constitution and hence not subject to Section 100(4), the Court read into its judgment the following:-

"At this point it should be made clear that this Court has no jurisdiction to decide the merits of the Ka Levu dispute. The Court has no function in that regard. The Court's function is to ensure that the process by which the Commission arrived at its decision in the inquiry under Section 17(1) of the Act was done in accordance with the law. In other words, it is the decision-making process of the Commission as a statutory tribunal which is under review by this Court and not the merits of the decision itself."

At page 20 the Chief Justice continued:-

"As already noted it is not for this Court to decide the merits of the Ka Levu dispute. That decision belongs elsewhere. The function of this Court is to ensure that the Commission as a statutory tribunal acted in accordance with the law in relation to the inquiry held under Section 17(1) of the Act. Whether the Commission came to the right or wrong decision according to Fijian custom and tradition is not for this Court to say."

The Court of Appeal then went on to say:

"The position is now put beyond doubt by Section 100(4) of the Constitution."

What Counsel for the applicant argues is that the High Court cannot look at the merits of the decision in an application for Judicial Review but may look to the procedures adopted in reaching that decision. This, so Counsel argues, is the "position" that the Court of Appeal is saying is "now put beyond doubt."

Counsel for the 5th respondent argues that the reference to the "position" is not meant to refer to the position advanced by the Chief Justice but rather to the total position - that is that the process of Judicial Review is totally excluded by Section 100(4).

To my mind, it is clear. The Court of Appeal held that "the High Court has no jurisdiction to review the decision" and that "the trial Judge erred in law in proceeding to deal with the application for leave for Judicial Review."

What the Court of Appeal is saying is that the High Court is not empowered to deal with applications for Judicial Review in such circumstances where, to do so would infringe upon Section 100(4) of the Constitution. If the Court cannot deal with the substantive matter of Judicial Review, then it surely cannot grant leave to pursue that review.

To my mind, and with greatest respect, the argument of the applicant does not hold up.

On the one hand, the applicant concedes that the Court is not empowered to hear applications for Judicial Review where such review is of the merits of the decision.

On the other hand, the appellant argues that the application for leave is open for consideration by this Court if it is to look at only the procedure adopted in the decision making process and decide whether or not due process was followed in coming to that decision.

As I said, the remedy for Judicial Review is concerned with reviewing, not the merits of the decision in respect of which the application for review is made, but the decision making process itself.

Lord HAILSHAM L.C. said in CHIEF CONSTABLE OF NORTH WALES POLICE -v-EVANS [1982] UKHL 10; [1982] 3 All ER 141 at p.143:-

"It important to remember that in every case that the purposes of [the remedy of Judicial Review] is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of the purpose to substitute the opinion of the Judiciary or the individual Judges for that of the authority constituted by law to decide the matter in question."

Judicial Review is in fact a judicial process designed to look at the procedures adopted by the decision making body. It is designed to provide for a review of the decision making process.

The Court of Appeal in saying that, as Judicial Review is excluded from this Court by Section 100(4) of the Constitution, then, by definition, review of the decision making process is excluded by the provisions of that section of the Constitution.

To my mind the matter is as simple as that.

The decision of the Court of Appeal in the RATU NACANIELI NAVA case excludes Judicial Review. This court is not empowered to look at or to hear the substantive matter due to the operation of Section 100(4) of the Constitution. Consequently it would be an exercise in futility to grant leave to pursue the matter further.

The application for leave is dismissed.

Consequently it is not necessary and nor am I able to consider the other matters raised by Counsel for the applicant in this application.

I order that the plaintiff pay the respondents costs to be taxed if not agreed.

After handing down my decision, I invited further submissions on costs. None of the respondents seek costs and, as a result of those submissions, I vacate the order in the last paragraph hereof and replace it with: "I make no order as to costs".

JOHN, D. LYONS
JUDGE

HBJ0002D.95L