Taubuli v Vatucawaqa [2001] FJHC 145; Hba0032.1999 (29 March 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL APPEAL NO. HBA 32 OF 1999

Between:

SANAILA TAUBULI
and
AKUILA TAUBULI
Appellants

and

ANASEINI VATUCAWAQA
and
VERENIKI VATUCAWAQA
Respondents

I.V. Tuberi for the Appellants
S.R. Valenitabua for the Respondents

DECISION

This is a dispute between two members of the same mataqali about which of them should be entitled to the use of a piece of land.

From examination of the Nausori Magistrates’ Court File 56/98 it appears that on 24 April 1999 a hearing took place. From my reading of the file it appears that the Court heard evidence from Mr. Nacanieli Nabukavou a Commissioner of Native Lands. After hearing him the Magistrate delivered the following Judgement:

“Both parties are satisfied that Anaseini Vatucawaqa ... has the legal rights to cultivate her “I kanakana” during her lifetime. These rights may be enjoyed by her husband and all the children living during (her) lifetime. When Anaseini Vatucawaqa dies such rights shall cease automatically because she is the only one registered under her mataqali NATAU. Anaseini Vatucawaqa’s “I kanakana” which is well known to her and demarcated from this day must not be encroached interfered damaged or be obstructed in any way whatsoever. She and her descendants shall enjoy such full rights during her lifetime.”

On 16 September 1999 the present appellants sought leave to appeal out of time. They also sought the stay of an order given on 21 July 1999 (of which I can find no trace on the file) and discontinuance of the proceedings in the Magistrates’ Court so that the dispute might be settled “through traditional method.”

On 20 November 1999 all 3 applications were dismissed and a typed copy of the ruling is on the file, for some mysterious reason having been certified correct on 2 November 1999.

On 25 November 1999 the present summons was filed. Although it is poorly worded it appears that the Appellants are seeking to have the judgment of 24 April 1999 set aside. They are also, contradictorily, asking for the proceedings in the Magistrates’ Court to be terminated and also for orders that the Magistrates’ Court hear additional evidence. No grounds of appeal have been filed as required by Order XXXVII Rule III (3) (1) of the Magistrates’ Courts Rules (Cap 14) and, because of Rule V (7) no record of the proceedings before the Magistrates’ Court has been prepared. The affidavit in support of the summons exhibits 9 pages of documents written in Fijian. No translation of these documents has been provided.

The Respondents seek to have the summons struck out. In her affidavit the First Respondent points to the failure by the Appellants to comply with the Rules of the Court. She also avers that 2 previous decisions of the Native Lands Commission in 1986 and 1987 arrived at the same conclusion as the Resident Magistrate but that the Appellants have refused to comply with these decisions or the judgment of the Court.

When the matter came before me for hearing on 22 March I expressed the view that owing to the lack of record or grounds of appeal and not being able to speak Fijian I was not in a position to adjudicate on the purported appeal. I did not wish to dismiss it as such a dismissal could be taken as implying that I had been able to consider its merits. In all the circumstances I simply ordered that the application be permanently stayed.

It is clear from the original Magistrates’ Court file, and from the Respondents unanswered affidavit filed on 5 January that this long drawn out dispute has been extensively examined both by the Native Lands Commission and by the Nausori Magistrates’ Court. In my view there is no justification for further intervention by the High Court.

In the result the Judgment of the Nausori Magistrates’ Court dated 24 April 1999 stands and may be enforced according to law.

M.D. Scott
Judge

29 March 01