Tabua v Native Land and Fisheries Commission [2004] FJHC 295; HBC0518.2003 (29 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0518 OF 2003

BETWEEN:

NEORI TABUA
PLAINTIFF

AND:

THE NATIVE LAND AND FISHERIES COMMISSION
DEFENDANT

Mr. S. Valenitabua: For Plaintiff
Mr. S. Banuve: For 1st and 2nd Defendants

DECISION ON STRIKING OUT

ISSUE:

The issue in this case is whether or not a litigant can challenge by a subsequent writ of summons the ownership findings by the Native Land Commission and the Appeals Tribunal set up under the provisions of the Native Lands Act Cap 133.

This is precisely what the plaintiff has embarked in this action to do. I shall set out the three declarations he is seeking:

A Declaration that the registration of Leleuvia as owned by Adi Litia Samanunu and her agnate descendants was acquired through fraud and after the Commission’s consideration of incorrect evidence.

A Declaration that the registration of Leleuvia as owned by Adi Litia Samanunu was contrary to traditional ways of land ownership and as a result the said registration was incorrect and invalid.

An Order that the Commission’s decision to register Adi Litia Samanunu and her agnate descendants as owners of Leleuvia be set aside and that Leleuvia be registered as owned by the Tokatoka Tabutabu of Uluibau Village in the island of Moturiki.

The defendants have filed a summons under Order 18 Rule 18 (1) (a) (b) and (d) for plaintiff’s claim to be struck out as it discloses no reasonable cause of action, it is scandalous, frivolous or vexatious and it is an abuse of the process of the court. The attack mounted by the defendants in support of its summons is on legal grounds.

STATUTORY PROVISIONS – PROPER FORUM – HIGH COURT OR NLC:

The Native Lands Commission (NLC) is set up under Section 4 of Native Lands Act for the purpose of “ascertaining what lands in each province of Fiji are the rightful and hereditary property of native owners, whether of mataqali or in whatever manner or way or by whatever divisions or subdivision of the people the same may be held”.

Under Section 6(1) it is the Commission which “shall institute enquiries into the title to all lands claimed by a mataqali or other division or subdivision”.

Under Section 6(5) if there is a dispute as to the ownership of any lands, the Commission shall enquire into it.

By these provisions the Parliament has provided for a special statutory organ to enquire into and investigate and make decisions as to title and ownership of disputed native lands.

Normally the sittings of the Commission are held somewhere close to the place where the land is situated. The roko of each province in which the Commission is conducting an enquiry becomes an ex-officio member of the Commission, - Section 5(1). Given the nature of the enquiry which normally involves evidence of native customs and land usage and a great deal of hearsay evidence, a court of law is hardly the proper forum to decide such issues. However that is precisely what the plaintiff, by the declarations he is seeking, wants the court to do – for an Order that the Commission’s decision to register Adi Litia Samanunu and her agnate descendants as owners of Leleuvia be set aside and that Leleuvia be registered as owned by the Tokatoka Tabutabu of Uluibau Village in the island of Moturiki. The applicants asks the court to set aside Commission’s finding and substitute it with its own decision.

The Court cannot usurp the functions and duties vested in a statutory body by the Parliament. The jurisdiction vested in the Commission and the Appeals Tribunal is an exclusive jurisdiction to them and is not concurrent with jurisdiction of the High Court. Accordingly I hold that this court is not the proper forum to decide the issue put before it. It is an abuse of process of the court. Support for this conclusion is also found in the decision of Justice Scott in the State v. Native Land Commission & Others ex-parte: Pio Tikoduadua – HBJ0017 of 2002 where on page 4 he said:

“As I see it, the first major difficulty facing the Applicants is that it is the Commission and not the High Court which is charged with resolving native land disputes. Even if I were satisfied that the Commission had so breached the rules of natural justice that the decisions reached had to be quashed then it would not follow that the High Court would conduct its own inquiry and grant declarations of the type sought by the Applicants.”

PRIVATE LAW OR PUBLIC LAW REMEDY:

Mr. Banuve also submitted also that these proceedings are fundamentally flawed as the plaintiff has failed to realize that it involved matters of public law and therefore judicial review was the proper procedure. I agree. However in fairness to the plaintiff, I consider that the plaintiff knew that he would not succeed on a judicial review due to the time limit. The decision in the present case was made some eighteen years ago so delay was excessive. Secondly the plaintiff in its application is trying to reopen the merits of the case which is not the sphere of judicial review which deals with due process. In the circumstances of this case, judicial review would not have probably gone past the leave stage and the plaintiff was probably aware of it in not embarking on that route.

The plaintiff in his affidavit is alleging that the witnesses before the Commission defrauded the Commission by giving insufficient information to the Commission and by hiding relevant information. The plaintiff by making these allegations and by making allegations that the Commission defrauded the plaintiff is inviting this court to examine proceedings which occurred inside the Commission to see if the decision was obtained by fraud. It is an invitation again to look into the merits of the decision. The plaintiff must accept that there has to be a finality to proceedings. Under Native Land Act there is provision for appeal to the Appeals Tribunal under Section 7 and the decision of Appeals Tribunal is final. There was an appeal to such Tribunal which had upheld the decision of the Commission. The status of the land having being finally determined, by a proper body, this court cannot interfere with it.

CONCLUSION:

The plaintiff has chosen the incorrect forum. The proceedings by the plaintiff are therefore doomed to fail and accordingly are wholly struck out with costs.

[ Jiten Singh ]
JUDGE

At Suva
29th April 2004