State v Native Lands Commission No 1, Ex parte Koroimata [1997] FJHC 50; Hbj0019d.1994s (23 April 1997)

Fiji Islands - The State v Native Lands Commission, Ex parte Koroimata - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

JUDICIAL REVIEW

ACTION NO. HBJ 0019 OF 1994

STATE

V

THE NATIVE LANDS COMMISSION AND
RATU JEREMAIA NAITAUNIYALO NO. 2

EX-PARTE:

RATU AKUILA KOROIMATA

Tevita Fa for the Applicant
S. Rabuka for the First Respondent
K. Vuafor the Second Respondent

Dates of Submissions: 16th and 19th August and 22nd November 1996
Date of Ruling: 23rd April 1997

RULING

The Applicant seeks judicial review of a decision of the Native Lands Commission dated 15th July 1994 relating to the position of the Turaga Tui Lawa of Yavusa Lawa in the Village of Yaro.

A dispute had arisen between the Applicant and the Second Respondent as to who should hold this title and the matter was referred to the Native Lands Commission for its decision under Section 17(1) of the Native Lands Act Cap. 133.

Numerous affidavits have been filed on behalf of the parties, the drafting of which, particularly in the case of those filed by the Applicant, 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.

The burden of the Applicant'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.

The letter of the 19th of April 1983 is addressed to the Commissioner, Native Lands Commission, Ministry of Fijian Affairs, Suva and contains four paragraphs. A copy of this letter is annexed to the affidavit of Nacanieli 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 Respondent 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:

"With regard to 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 Natau, who is sixth in line, (the youngest) according to our Register of descendants of the Tokatoka Nabukelevu.

Since Akuila Koroimata is still alive and he being the rightful holder of the title, which was taken away from him for base motives rivalry, I request that you give him, his share of the lease as Head of the Mataqali, 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 descendant.

We are requesting 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."

The important paragraph for present purposes is the third but the First Respondent also relies on a letter of the 18th of May 1983 no copy of which has been annexed to any affidavit so far filed on behalf of any of the parties. 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 the Applicant 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 the 19th of April the Applicant denies that the signature bearing the name Akuila Koroimata is his signature and argues that by failing to invite him to comment on both these letters the Commission committed a breach of the rules of natural justice.

In the affidavit of the Nacanieli Nabukavou of 23rd of August 1995, commenting on the claim by the Applicant that he was not aware that these letters were going to be relied on by the Respondents, Mr. Nabukavou says simply that "This is a lame excuse". He also says that the whole purpose of the inquiry conducted by the Commission was to determine from such letters and other oral evidence whether the Applicant or his opponent the Second Respondent were to be established as the Tui Lawa.

There is no doubt in my judgment that the Applicant and the Second Respondent gave evidence at the hearing of the Commission on 30th June 1994. Whilst it is only fair to say even at this stage that I have serious reservations 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 relied on the decision of the Court of Appeal in Civil Appeal No. 55 of 1993 Ratu Nacanieli Nava v. Native Lands Commission and the Native Land Trust Board dated 11th November 1994 and a subsequent decision of Lyons J. delivered on 4th December 1995 in Judicial Review No. HBJ0002 of 1995L Ratu Isireli Rokomatu Namulo v. Native Lands & Fisheries Commission and Four Others. Both judgments rely on Section 100(4) of the 1990 Constitution which reads:

"(4) For the purpose 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 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."

In Nava's case the Court held that 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 Commission concerning Section 17(1) of the Native Lands Act relating to any dispute as to the headship of any division or sub-division of the Fijian people having the customary right to occupy and use any native land under the Native Lands Act.

Purporting to follow Nava's case Lyons J. held that the Court of Appeal held that the process of judicial review is totally excluded by Section 100(4) - see p.5 of the unreported judgment.

With great respect to my learned brother 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 the parties a fair hearing such decision was not reviewable by the superior courts of this country.

So to hold would in my view fly directly in the face of what Lord Reid said in Ridge v. Baldwin [1963] UKHL 2; (1964) A.C. 40 at p.80:

"Time and time again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void and that was expressly decided in Wood v. Woad (1874) [1874] UKLawRpExch 26; LR 9 Ex. 190. I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case."

It must be observed that in Nava's case there was no allegation of failure by the Commission to follow proper procedures. The question simply was which of two contesting brothers should be held to be the principal Chief in the Vanua Vidilo. After the hearing the Commission appointed 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 judgment therefore 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 qualify for protection under 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 however at this stage of course I express no concluded opinion. I shall fix a date for the hearing of such evidence on the delivery of this ruling.

John E. Byrne
JUDGE

Legislation and authorities referred to in ruling:

(1) Constitution of Fiji Section 100(4).

(2) Native Lands Act Cap. 133.

(3) Rules of High Court.

(4) Ratu Nacanieli Nava v. Native Lands Commission and Another Civil Appeal No. 55 of 1993 - unreported judgment of the Court of Appeal dated 11th November 1994.

(5) HBJ 0002 of 1995L Ratu Isireli Rokomatu Namulo v. Native Lands & Fisheries Commission and Four Others - unreported judgment of Lyons J. dated 4th December 1995.

(6) Ridge v. Baldwin [1963] UKHL 2; (1964) A.C. 40.

No other authorities were cited in argument.

Hbj0019d.94s