State v Native Lands Commission, Ex parte Curu [1997] FJHC 249; Hbj0034d.1995s (14 November 1997)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

JUDICIAL REVIEW NO. 0034 OF 1995

THE STATE

V.

NATIVE LANDS COMMISSION
AND ALIVERETI RAMATAI

EX-PARTE

MERE CURU AND JOSEFA CAVU

Mr. T. Fa for the Applicants
Mr. S. Rabuka for the Respondents

RULING

This is an application for leave to issue judicial review against various decisions of the Native Lands Commission (NLC) taken on the 8th of September 1995 confirming the second respondent's membership of the Mataqali Nakorolevu, Yavusa Raviravi Nabouwalu Village in Bua and his entitlement to hold the chiefly title of Buli Raviravi.

The dispute between the parties as to the first respondent's registration and membership of the Mataqali Nakorolevu and his eligibility to hold the chiefly title of Buli Raviravi, appears to have surfaced after the first applicant was traditionally installed as Buli Raviravi on the 17th of March 1995. Upon her installation she inquired of the Roko Tui Bua as to what land rental monies were due to her as Buli Raviravi and in a letter dated 5th April 1995, she was informed in no uncertain terms that her installation was not traditionally sanctioned by the paramount chief and that the first respondent was the only person officially recognised as the legitimate holder of the title.

The applicant then sought the intervention and assistance of the Permanent Secretary of Fijian Affairs and a sitting of the Native Lands Commission was convened at Nabouwalu Village for the 8th of September 1995 with a view to resolving the dispute between the parties. Such sitting was undertaken pursuant to Section 17(1) of the Native Lands Act (Cap. 133) which provides:

"In the event of any dispute arising between native Fijians as to the headship of any division or subdivision of the people having the customary right to occupy and use any native lands, the Commission may inquire into such dispute and after hearing evidence and the claimant shall decide who is the proper head of such division or subdivision, and such person shall be the proper head of such division or subdivision:

Provided that if the claimants agree in writing in the presence of the Chairman of the Commission as to who is the proper head of such division or subdivision it shall not be necessary for the Commission to hear evidence or further evidence as the case may be."

At the meeting attended by officials of the NLC, the rival claims to the chiefly title and other matters in dispute were orally addressed by the Chairman of the NLC who ruled in favour of the second respondent.

As to the procedure adopted, first applicant deposed (without contradiction) that at the meeting:

"We were never heard or given the opportunity to be heard on our case. All the talking was done by Mr. Navunisaravi and his group. No one was invited to say anything and before anyone could say anything, Mr. Navunisaravi was delivering his decision and thereafter he asked that the benediction be delivered. The meeting ended."

She also raised various other complaints in her affidavit including the mysterious or mistaken registration of the late father of the second respondent in the chiefly Mataqali Nakorolevu in 1927 and thereafter of the second respondent, and of the family relationship between the Chairman of the NLC and the second respondent through marriage ties.

Specific examples were also instanced in the first applicant's affidavit wherein she claimed the NLC had on its own initiative either de-registered unqualified persons from the Register of Native Lands namely, the Vola ni Kawa Bula (VKB), or had cancelled and re-registered persons who had been mistakenly entered in the wrong mataqali in the VKB and the applicant's ask - Why not in this case?

The application is also supported by an affidavit deposed by the second applicant in which he sought quite improperly, to address more general legal questions concerning the interpretation and legislative intention behind the Native Lands Act and Section 100(4) of the 1990 Constitution.

In opposing the application a Commissioner of the NLC without constructively addressing the specific matters raised in the first applicant's affidavit, merely deposed that the affidavit reflected 'her selective interpretation of facts to suit her own conclusion'.

More particularly however, and in disagreeing with the various matters raised in the second applicant's affidavit, the Commissioner deposed '... that the wordings of Section 100 of the Constitution are so clear and unambiguous that so long as the Commission entered a decision in accordance with native customs tradition and usage, such decision shall be final and conclusive'.

The affidavit in opposition quite plainly and directly raises a preliminary jurisdictional question and with the agreement of counsel written submissions were ordered. These were finally received on the 21st of January 1997 and are a credit to their respective authors.

In this regard Mr. S. Rabuka counsel for the NLC writes:

'The First Respondent opposes the application for review on two grounds -

(a) that the applicant cannot challenge the decision of the NLC in a Court of law including the High Court that the second respondent is Buli Raviravi.

(b) that the Honourable Court cannot quash the decision of NLC that the second respondent is the Buli Raviravi.

Both grounds are contained in Section 100(4)(b) of the Constitution.'

Mr. T. Fa for the applicants accepts that an issue of the Court's jurisdiction has been raised 'in relation to the application of Section 100(4) of the Fiji Constitution' which is best resolved '... before (looking) at the merits of this application'.

Accordingly I turn immediately to the provisions of Section 100(4) of the Constitution which reads:

"(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 laws; and

(b) Disputes as to the headship of any division or subdivision of the Fijian people having the customary right to occupy and use native lands,

shall be final and conclusive and shall not be challenged in a court of law."

A cursory reading and comparison of the wording of Section 100(4)(b) and Section 17(1) of the Native Lands Act (earlier set out at p.2) indicates that the framers of the Constitution without expressly saying so, clearly had in mind 'decisions' of the Native Lands Commission delivered after an inquiry undertaken pursuant to Section 17(1) of the Native Lands Act.

That any such 'decision' of the NLC is plainly protected from judicial review or challenge in so far as it based upon, relates to and concerns 'Fijian customs, traditions and usages' is beyond dispute. But equally it is clear to my mind that the process or procedure adopted by the NLC in arriving at its constitutionally-protected 'decision' is not similarly immune from challenge and is therefore, amenable to judicial review.

In my view Section 17(1) of the Native Lands Act not only identifies and delimits the nature of the dispute that gives rise to the constitutionally-protected 'decision' of the NLC under Section 100(4) of the Constitution, but in addition, Section 17 prescribes a process or procedure which the NLC is obliged to follow as part of its inquiries before rendering its constitutionally-protected 'decision'. That process includes amongst other things '... hearing evidence and the claimants ...' before deciding the dispute.

It is common ground that the dispute in this case is one between 'native Fijians' which, amongst other things concerns 'the headship of a division or sub-division ... (of registered Fijian landowners)' and is clearly within the purview of Section 100(4) and accordingly the 'decision' of the NLC is 'final and conclusive and shall not be challenged in a court of law'.

I cannot bring myself however to accept the proposition that an 'inquiry' that wholly fails to comply with the laid down statutory procedure is, nevertheless, rendered immune from challenge merely because the 'decision' emanating from such a fundamentally flawed process is said to be 'final and conclusive' nor, in my view would such a purported 'decision' be protected since it would be a 'nullity'.

As was said by Lord Wilberforce in three (3) relevant passages in the course of his judgment in the leading case of Anisminic Ltd. v. The Foreign Compensation Commission and Anor [1968] UKHL 6; (1969) 2 A.C. 147 at p. 207D:

"... In every case, whatever the character of a tribunal, however wide the range of questions remitted to it, however great the permissible margin of mistake, the essential point remains that the tribunal has a derived authority, derived that is, from statute: at some point, and to be found from a consideration of the legislation, the field within which it operates is marked out and limited ..."

and in a second passage at p. 207G:

"... The question, what is the tribunal's proper area, is one which it has always been permissible to ask and to answer, and it must follow that examination of its extent is not precluded by a clause conferring conclusiveness, finality or unquestionability upon its decision. These clauses in their nature can only relate to decisions given within the field of operation entrusted to the tribunal."

and lastly when his lordship said at p. 208B:

"The Courts when they decide that a 'decision' is a nullity are not disregarding the preclusive clause. For just as it is their duty to attribute autonomy of decision of action to the tribunal within the designated area, so, as the counterpart of this autonomy, they must ensure that the limits of that area which have been laid down are observed. In each task they are carrying out the intention of the legislature, and it would be misdescription to state it in terms of a struggle between the Courts and the executive. What would be the purpose of defining by statute the limit of a tribunal's powers, if, ..., those limits could safely be passed?"

In this latter regard, Lord Pearce in his judgment in Anisminic (ibid) said at p. 195B:

"Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark an inquiry Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged in a proper inquiry, the tribunal may depart from the rules of natural justice; ... Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity."

and finally, Lord Reid had this to say about the ambit of the 'ouster clause' in the Anisminic case at p. 170D:

"No case has been cited in which any other form of words limited the jurisdiction of the court has been held to protect a nullity. (If such was intended) ... I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any Court of law. Undoubtedly such a provision protects every determination which is not a nullity. But I do not think that it is necessary or even reasonable to construe the word 'determination' as including everything which purports to be a determination but which is in fact no determination at all. And there are no degrees of nullity."

The distinction between a 'decision' and the process or procedure by which it is reached is in my view, neither semantic or fanciful and indeed is of the very essence of the court's function in a judicial review application. As Lord Hailsham L.C. pointed out in Chief Constable of North Wales Police v. Evans [1982] UKHL 10; (1982) 1 W.L.R. 1155 at p.1160:

"It is important to remember in every case that the purpose (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 that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question."

In similar vein in Bulou Eta Vosailagi v. Native Lands Commission and Others Civil Action No. 19 of 1988 (unreported), in sustaining a challenge to the decision of the NLC made under Section 17(1) of the Native Lands Act, and concerning the chiefly title of 'Ka Levu', the learned Chief Justice said at pp. 6/7:

"... 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 (Native Lands) Commission arrived at its decision in the inquiry under Section 17(1) of the (Native Lands) 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 ..."

Mr. S. Rabuka seeks however to avoid the distinction highlighted in the Ka Levu' case on the basis that the judgment pre-dates the enactment of Section 100(4) of the Constitution as interpreted by the Fiji Court of Appeal in Ratu Nacanieli Nava v. N.L.C. and Others Civil Appeal No. 55 of 1993 (unreported) which concerned a dispute between rival claimants of the chiefly title of 'Taukei Vidilo'.

In Nava's case the Court of Appeal referred to Section 100 of the Constitution as being '... more than an ouster clause as found in the English cases. We are here concerned with a constitutional provision which deals with a particular area of the law peculiar to Fiji, namely customary law'. (at p.7) and then after setting out the provisions of Section 100(4) the Court of Appeal said at p.10:

"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."

The Fiji Court of Appeal in it's judgment (at pp. 11/12) also referred to the Ka Levu case (op.cit) and distinguished it on the ground that the Chief Justice's decision '(to) set aside the decision of the NLC on the grounds of bias ... has no relevance to the issue argued before us,' which was, whether or not the High Court should have granted leave for judicial review where the applicant had sought, '... 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 that particular case, and in respect of which 'decision' the Court of Appeal observed:

'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.'

Mr. S. Rabuka has similarly sought however to categorise the applicant's complaint in this case when he writes:

"All the grounds set out in the affidavits of Mere Curu and Josefa Cavu (Applicants) deals with substance and merits of the decision rather than the procedure of arriving at a decision."

I cannot agree.

Having carefully considered the first applicant's affidavit [esp: paras. 28 & 33 to 35]; the various 'grounds' upon which relief is sought [esp: grounds (a) & (b)] and the rather lengthy and unusually drafted Statement in support of the application [esp: paras. 2 of Clauses 3 & 4], I am firmly of the opinion that the applicants have, at the very least, identified several prima facie reviewable errors that occurred in the decision-making process of the NLC that are quite distinct from and unrelated either to the substance of the dispute between the parties or to the merits of the decision.

At this preliminary stage, I can quite firmly and safely say that bearing in mind the above matters, the present application is plainly and easily distinguishable from that which was taken by the applicant's in Nava's case which was equally plainly incompetent.

In summary, the applicants complain of breaches of the 'rules of natural justice' by the NLC in the conduct of its 'inquiry' under Section 17(1) of the Native Lands Act. These 'rules' are clearly identified in the following passage in the judgment of Lord Denning M.R. in Kanda v. Government of Malaya [1962] UKPC 2; (1962) A.C. 322 where he observed at p.337:

"The rule against bias is one thing. The right to be heard is another. These two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: nemo judex in causa sua, and audi alteram partem. They have recently been put in the two words, impartiality and fairness. But they are separate concepts and are governed by separate considerations."

Mr. S. Rabuka argues however that the effect of Nava's case is that the NLC's 'decision' cannot be quashed or reviewed and therefore it would be a futile exercise to grant leave to judicially review the decision-making process of a 'decision' that the Constitution states 'shall be final and conclusive and shall not be challenged in a court of law' i.e. the 'decision' includes and subsumes the process. Again I cannot agree.

Mr. T. Fa for the applicants deals with this particular difficulty in the following manner in his submissions and which I would gratefully adopt. He writes (with minor cosmetic amendments):

"Section 100(4) of the Fiji Constitution protects the 'decision' and 'opinion' of the Native Lands Commission. The relevant 'decision' of the Native Lands Commission that concerns us in this case was taken or made under the authority of the Native Lands Act, cap. 133.

In particular, under Section 17 of the Native Lands Act, Cap. 133 where there is a dispute arising between native Fijians as to the headship of any division or subdivision having the customary right to occupy and use native lands, the Commission may inquire into such dispute and after hearing evidence and the claimants shall decide who is the proper head of such division or subdivision, and such person shall be the proper head of such division or subdivision.

It is clear from the way Section 17 is worded that before the Commission decides any dispute under Section 17, it must:

(a) inquire into the dispute;

(b) hear evidence; and

(c) hear the claimants.

Let us suppose for one moment that the Commission attends to (a) and (b) but fails to attend to (c) and proceeds to decide on the headship of the social division. Is that a decision that is properly made under Section 17 of the Act which is protected under Section 100(4)(a) and (b) of the Constitution?

Let us suppose that the Commission is constituted of a Commissioner who is a brother of one of the claimants. After attending to (a), (b) and (c), the Commission decides in favour of the claimant who is his brother. Is such decision protected under Section 100(4)(a) and (b) of the Constitution even from an allegation of a real likelihood of bias?

Another perhaps extreme scenario, is where the Commission appoints as 'head' of a division or subdivision, a person who is a non-Fijian. Is there to be no relief to be had by the Fijian members of the division?

The question really, is whether the protection afforded by Section 100(4)(a) and (b) of the Constitution continues in spite of an allegation of ultra vires, bad faith, a real likelihood of bias or a breach of natural justice."

In somewhat similar vein Bryne J., in granting leave to apply for judicial review of the 'decision' of the NLC concerning a dispute relating to the chiefly position of the 'Turaga Tui Lawa' in State v. NLC and Ratu Jeremaia Naitauniyalo No.2 ex-parte Ratu Akuila Koroimata Judicial Review No. 19 of 1994 (unreported), said at p.5:

"... I do not take the Court of Appeal to be saying in Nava's case that all decisions or opinions of the Native Lands Commission are not subject to judicial review. I cannot bring myself to believe that the Court intended to say that even where a decision of the Commission was tainted by the most obvious bias or failure to accord to the parties a fair hearing such decision was not reviewable by the Superior Courts of this Country."

In my view Section 100(4) of the Constitution only extends to protect from challenge, a 'decision' of the NLC under Section 17(1) of the Native Lands Act which satisfies the following:

(1) falls within the ambit of disputes for which the NLC has been given the statutory jurisdiction to determine;

(2) is arrived at by a procedure which complies with the statutory procedure laid down in the Section;

and

(3) does not offend against the principles of natural justice.

I am not unmindful of the observations of Scott J. in his decision in In re Timoci Ramakosoi and Others HBJ 11 of 1994 delivered on 24th April 1995 in which his lordship anxiously sought in vain 'for a small chink' in the Fiji Court of Appeal's decisions in Nava's case and in the case of James Michael Ah Koy v. Registration Officer for the Suva City Fijian Urban Constituency Civil Appeal No. 55 of 1993 (unreported).

I take some comfort however, from the Constitution Amendment Act 1997 which will come into effect on 25th July, 1998 and which, amongst other things, repeals the provisions of Section 100 of the 1990 Constitution and declares pursuant to the transitional Section 195(2)(h) that:

"All proceedings in the courts established by the Constitution of 1990 that had commenced before that repeal but had not been determined continue on and after that repeal as if the provisions of this Constitution were in force at their commencement."

In other words, the effect would be that the present application although commenced before Section 100 of the 1990 Constitution was repealed will, after July 1998, be determined as though Section 100 of the 1990 Constitution had already been repealed at the time the action was commenced.

In conclusion the respondent's preliminary objection to the Courts jurisdiction is dismissed, and bearing in mind the paucity of the respondent's affidavit evidence, I propose to adopt a course not dissimilar to that invoked by Byrne J. in the Koroimata Case (op.cit) and do hereby order:

"That within 14 days of the date hereof, the then Chairman of the NLC or his assistant Ratu Viliame Tagivetaua, do file and serve on the applicant's solicitor, an affidavit specifically addressing paragraphs 24 to 30 and paragraphs 31 to 35 of the first applicant's affidavit of 28th December 1995."

The application is adjourned for mention at 10.00 a.m. before me in Chambers on Monday 1.12.97 for further directions and/or orders.

(D.V. Fatiaki)
JUDGE

At Suva,
14th November, 1997.

HBJ0034D.95S