Attorney-General of Fiji v Mocelutu [2002] FJHC 264; HBC0231D.2002S (13 December 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC0231D OF 2002S

IN THE MATTER of an application Under Order 113 of the High Court Rules of Fiji.

BETWEEN:

THE ATTORNEY-GENERAL OF FIJI
on behalf of the Director of Lands, Government Buildings, Suva.
Plaintiff

AND:

ATUNAISA MOCELUTU
of Nadonumai Road, Suvavou.
Defendant

Counsel for the Plaintiff: Ms A Rokomokoti, Attorney-General=s Chambers
Defendant: In Person

Date of Decision: 13 December 2002
Time of Decision: 9.15 a.m.

DECISION

This is an application by the State for possession of land under O.113 proceedings. The land in question is a piece of reclaimed foreshore, known and otherwise described as ANavesi Reclaimed Land - Lami,@ very close to Navesi river in Lami. On the Locality Diagram provided by the Applicant, (Sheet Ref. 029/11.05 & 12.05) the subject area is given as 700m5.

The defendant, a member of Yavusa Nayavumata of Nadonumai, Suvavou had earlier this year moved into the described land without the permission of the State. He has erected a shed on it and, according to the affidavit of the plaintiff, is used as a taxi base by the defendant.

A notice to dismantle the structure, served on the defendant by the plaintiff followed by the actual dismantling of the shed by the plaintiff only resulted a few weeks later, in the defendant rebuilding the shed.

As a last resort, the plaintiff now files this originating summons.

Plaintiff=s Submissions are pretty straight forward. Evidence show that the land in question is the result of reclamation of the Lami foreshore by the State. Under Section 23 of the State Lands Act (Cap 132), the right and title of the reclaimed lands Ashall continue vested in the State as if the same had continued subject to the flow and reflow of the ordinary tides.@

The plaintiff submits that since the foreshore is now properly state land the provisions of Section 32 of the State Lands Act, apply, to whit:

A32. Any person not claiming bona fide under a subsisting lease or licence or otherwise under any Act relation to the occupation of State land who is found occupying any Crown Land or is found residing or erecting any hut or building, depasturing stock or cutting any timber grown thereon, or clearing digging up, inclosing or cultivating any part thereof, shall be liable to immediate eviction and shall be guilty of an offence against this Act:

Provided that nothing in this Act shall deprive the public of the right to quiet enjoyment, for recreation purposes, of the foreshore.@

Counsel for the State argues that given that the reclaimed foreshore has now properly become state land and remains vested in the State, the defendant, having moved on to the land without the approval of the Director of Lands, is a trespasser within the meaning of Section 32 and is liable for eviction.

Defendant=s Submissions

The defendant concedes that he is occupying the plot of the reclaimed foreshore referred to by the plaintiff. However in his affidavit in reply, the defendant claims that he is merely exercising his right as one of the owners of the traditional fishing grounds upon which the state reclaimed land emerged. According to the defendant, the piece of land, is not the result of any deliberate reclamation work carried out by the State, but the subject area was previously used by the Public Works Department as a dump for Arocks and soil left-over from the construction of the new stretch of Suva - Lami highway.@

The defendant then argues that since he was merely exercising his legal rights as the owner of the traditional fishing grounds upon which the reclaimed land is founded, he could not possibly be trespassing on his own property. The logic of this argument is to be found in paragraph 4 of the defendant=s affidavit, which says:

ATHAT I am not trespassing on to State Land, but have entered part of my traditional fishing ground which is a state foreshore owned by us and controlled by the State.@

The defendant then attached to his affidavit a sketch plan of unknown authorship or authority of the Suva - Lami area but which it purports to show, in areas edged yellow, all lands belonging to the 3 yavusas of Nauluvatu, Nayavumata and Vatuwaqa, of Suvavou. The sketch plan however appears totally irrelevant as the subject land of this present proceeding falls outside the area covered by the plan.

There is an additional argument advanced by the defendant, which materialised from his written submissions, although in a very disjointed form. Resorting to various documents and correspondence. (ADespatches@) in the periods immediately prior to and after Fiji=s Deed of Cession in 1874, the defendant attempts to establish the existence of a pre-eminent claim of native Fijians to all state lands. I will deal with this issue later.

The defendant also referred to his many attempts without success to regularise the occupancy of the land, by applying for a proper licence or lease from the Director of Lands.

Traditional Fishing Rights

The defendant has gone to great length to trace the existence of the Vanua of Suvavou=s traditional fishing rights along the Suva and Lami foreshores. This Court does not wish to offer any views on the matter except agree that the concept of traditional fishing rights does exist. Indeed our laws recognise the existence of such rights, which are addressed from time to time, by the Agricultural Tribunal, specifically set-up with the purposes of inter alia, assessing appropriate compensation to be awarded to Fijian landowners, whose traditional fishing grounds are adversely affected by human activities.

On any possible claim arising from the Navesi Reclaimed Land - Lami reclamation work, the plaintiff states that the matter is being addressed by the various relevant agencies of Government in consultation with the 3 yavusas of Suvavou. The negotiations are continuing.

THE LAW AND APPLICATION

The law governing foreshore and land reclaimed therefrom, is set out in Part V of the State Lands Act (Cap 132). The definition of state land under Section 2 of the Act includes Aforeshores and the soils under the waters of Fiji.....@ Where the foreshore has been reclaimed, then according to Section 23 (2) of the Act:

A (2) The right and title of such lands so raised and reclaimed shall continue vested in the State as if the same had continued subject to the flow and reflow of the ordinary tides.@

The land in question, the ANavesi Reclaimed Land - Lami@ comes under the ambit of S.23 (2) of the Act and therefore properly belongs to the State. It matters not to the issue of ownership, that the compensation of loss of traditional fishing rights of the defendant is still being negotiated. The ownership of reclaimed land arises by operation of law. Pure and simple.

The defendant has absolutely no legal grounds to support his occupation of the land in question. It is misconceived as it is mischievous for the defendant to argue that the land he presently occupies stands on his yavusa=s traditional fishing grounds; or at any rate, he had a right to occupy it since the state had not paid compensation to the owners of the traditional fishing grounds for the loss of use. The defendant would seem to be taking it upon himself to confront what he perceives to be some past injustice, by blatant disregard for the law. And yet it is only by and through the operation of the law that the defendant=s grievances can be addressed.

The defendant also referred to the Deed of Cession and various ADespatches@ between the then Colony of Fiji and the Colonial Secretary=s Office in London, as supporting his contention that all State land in Fiji are held in trust for the native Fijians. While the issue is yet to be fully addressed in an appropriate forum, the Court is satisfied that the question remains a mere proposition. As for the present proceedings, quite apart from the above-mentioned, the defendant=s argument arises as the result of a very narrow interpretation of the documents in question. As far as this Court is concerned, the only State lands of which native landowners can have some pre-eminent claims over are those that come under Section 18 of the Native Land Trust Act (Cap. 134). The ANavesi, Reclaimed Land - Lami@ the subject land under this action, does not come under this exception.

In the circumstance, having considered the affidavits and submissions of both parties, the Court finds that the defendant is occupying the land in question without licence or approval of the Director of Lands. His occupation is therefore illegal.

Order is hereby made for possession of the said land by the plaintiff.

The defendant is given 21 days to dismantle and remove any structure built on the property.

I award costs of $100 against the defendant.

F. Jitoko
JUDGE

At Suva