State v Native Lands Appeals Tribunal [2009] FJHC 164; HBJ 2 of 2009L (14 August 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

JUDICIAL REVIEW No. HBJ 2 of 2009L

BETWEEN:

THE STATE

AND:

NATIVE LANDS APPEALS TRIBUNAL
Respondent

AND:

RATU WILIAME RATUDALE SOVASOVA
Interested Party

AND:

ADI MAKERETA MARAMA ROKO TUI
Applicant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr K Tunidau for the Applicant
Mr R Green for the Respondents
Mr R Krishna for the Interested Party

Solicitors: Messrs Krishna & Co. for the Interested Party
Kevueli Tunidau Lawyers for the Applicant
Office of the Attorney General for the Respondents

Date of Hearing: 6 August 2009
Date of Judgment: 14 August 2009

INTRODUCTION

1. This is an application for leave for judicial review of a decision of the Native Lands Appeals Tribunal.

2. I asked Counsel to address me first on the issue of whether the High Court has jurisdiction to hear this application because if the Court does not then that is the end of the matter. This point was not raised by the parties but by this Court.

3. The reason I asked Counsel to do that is because section 7(5) of the Native Lands Act [Cap 133] provides:

“Decisions of the Appeals Tribunal are to be final and conclusive and cannot be challenged in a court of law”

4. I believe this is the correct approach. It is not proper for me to consider leave before considering this jurisdiction point. It has been suggested that I should grant leave first and then consider the point when the judicial review proper is heard. With respect, if I do not have jurisdiction then I cannot grant leave. Secondly, it is quite proper for me to raise the point even though the parties themselves by their Counsel have not raised it. This was done by the Court of Appeal in Nava v Native Lands Commission [1994] FJCA 34; Abu0055j.93s (11 November 1994).

5. Counsel filed very helpful written submissions and case authorities and the point argued fully on 6 August 2009.

6. This is my decision after hearing Counsel on the point.

THE BACKGROUND

7. A dispute arose as to the rightful title holder of the chiefly title of Tui Vitogo. It is between the Interested Party, Ratu Williame Ratudale Sovasova, and his elder sister, Adi Makereta Marama Roko Tui, the Applicant.

8. In accordance with the Native Lands Act [Cap 133], the dispute was referred to the Native Lands Commission (the “Commission”) and the Commission on 10 March 2006, found in favour of the Ratu Williame Ratudale Sovasova. Exercising her rights under the Act, the Applicant appealed this decision to the Native Lands Appeals Tribunal (the “Tribunal”) which affirmed the decision of the Commission. This was the first Tribunal decision. The matter ended up in the High Court and the parties agreed that the first Tribunal decision be quashed and the matter reheard by a differently constituted Tribunal. That Tribunal heard the parties on 23 April 2009 and gave its decision, the second Tribunal decision, in favour of Ratu Williame Ratudale Sovasova on 10 June 2009. This is the decision that the Applicant wants the High Court to review.

9. This background is not complete without reference to circumstances surrounding the first Tribunal decision.

10. The first Tribunal decision was the subject of litigation in this Court in Judicial Review No 7 of 2007 [HBJ 7/07]. The applicant in that case, who is the same applicant in this case, sought leave to issue judicial review of the first Tribunal decision. Her current application is for the same relief, namely, that she be given leave to issue judicial review, of the second Tribunal decision.

11. The jurisdiction point that is currently under consideration was not raised in that case and the learned trial Judge heard the application on the premise that the High Court had jurisdiction. Leave was granted on 15 April 2008 on the basis that the applicant had sufficient interest in the matter, that the decision challenged was of a public nature and that all remedies had been exhausted. The matter then proceeded to review.

12. The parties however settled the action and the terms of settlement were handed up to the Court and consent orders were made on 10 November 2008, one of which was that the first Tribunal decision be quashed by consent.

13. The Applicant has deposed in her Affidavit that the first Tribunal decision was quashed by the High Court, and that is true but rather misleading. In any event, the jurisdiction point was not raised and argued as I have said so the judgments in that case do not assist her in this application.

THE LEGISLATIVE BACKGROUND

14. Before I turn to the cases, I first turn to the legislative background to which the cases were decided. The Native Lands Act [Cap 133], s 4, provides for the appointment by the Minister of one or more commissioners to constitute the Native Lands Commission, each of whom having the same powers as the Commission, charged with certain duties under the Act.

15. One of these duties was to resolve disputes on headship. Section 17 provides:

17. (1) 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 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:

Provided that if the claimants agree in writing in the presence of the Chairman of 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.

(2) On the conclusion of any inquiry held under subsection (1), the Chairman of the Commission shall inform the parties of the decision and shall transmit a copy of such decision to the scribe of the province in which the land belonging to such division or subdivision is situate and such decision shall be publicly read at the next meeting of the provincial council of that province.

(Inserted by Ordinance 11 of 1961, s. 2.)

(3) A person aggrieved by a decision of the Commission under this section may appeal against it to the Appeals Tribunal constituted under section 7."

(Inserted by s 4 of Native Lands (Amendment) (Appeals Tribunal) Act 1998).”

16. The history behind s 17 of the Act was explained by Tuivaga CJ in Bulou Eta Kacalaini Vosailagi v Native Lands Commission [1989] FJHC 53 as follows:

“It is probably true to say that the Ka Levu dispute, saddening as it is for all concerned, would not have arisen if customary law relating to chiefly succession was in place. Disputes over headship of Yavusas have been a common feature of the Fijian chiefly system since the Cession. This trend was responsible for the amendment of the Act in 1961, which introduced Section 17 to the general law of Fiji. In moving the amendment Bill in the Legislative Council, the law-making body at the time, the then Chairman of the Commission (Mr. J.S. Thomson) explained its purpose as follows:-

"The purpose of this Bill is to give the necessary authority to the Chairman of the Native Lands Commission to settle disputes that may be referred to him by land owning units or groups of land owning units over the headship of the units. Disputes of this nature have been referred for some years now to the Native Lands Commission and these have usually been settled after discussion. There are, however, some disputes which cannot be settled by conciliation methods. Unfortunately, these appear to be becoming more common. In many cases, large sums of rent moneys from the leasing of Native Lands are involved, and in such cases the Chairman of the Native Lands Commission is asked by the disputing parties to decide on the question of the headship of the unit involved. At the moment, Sir, he has no legal authority to settle disputes. The reason for the proposal to vest the necessary authority in the name of the Chairman of the Native Lands Commission is that in recording the ownership of Native Lands and the membership of the various land owning units in the Colony the Native Lands Commission has recorded the history of every yavusa in Fiji (the yavusa being the basic social unit in Fijian Society).

The Commission has also recorded the names of the leaders of those units. Those records are in the custody of the Chairman of the Native Lands Commission. It is customary practice for the units to choose their own leader; normally the units choose the nearest agnate descendants to the founder of the unit.

This Bill does not seek to change that practice. It is only in cases where a dispute exists that the Chairman of the Native Lands Commission will decide on the headship of the units involved. He will reach that decision on the basis of the evidence which is available to him from the records in his custody. There are some disputes outstanding, awaiting the passing of this Bill." (see Fiji Legislative Council Debates, 1961 page 72)...

After expressing some doubt as to the wisdom of such a process, Tuivaga CJ went on to say:

“Fijian custom and tradition has its own in-built method of resolving even the hardest of disputes. It is called "vei sorosorovi" and is invoked in order to restore peace and harmony to village life and in a larger context to the life of the vanua. It of course requires a huge helping of magnanimity wisdom and understanding. It is only when Fijian custom and tradition is ignored or gives way to expediency that disputatious situations will arise in Fijian society.”

17. The next piece of legislation that impacted on the decisions of the Commission was the 1990 Constitution. Section 100(4) provided:

“(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.”

18. The 1997 Constitution did not have a similar provision as s 100 of the 1990 Constitution. Instead, it had section 168 which provided, so far as relevant for present purposes:

“186.-(1) The Parliament must make provision for the application of customary laws and for dispute resolution in accordance with traditional Fijian processes.

(2) In doing so, the Parliament must have regard to the customs, traditions, usages, values and aspirations of the Fijian and Rotuman people.”

19. Section 7 of the Act, as it stood prior to 1998, provided as follows:

7. (1) There is hereby constituted an Appeals Tribunal consisting of a chairman and two other members all to be appointed by the Minister. It shall be the duty of the Appeals Tribunal to hear and determine appeals from decisions of the Commission under section 6 and from a commissioner under section 16, and any such determination by the Appeals Tribunal shall be final.

(2) Any person aggrieved by any such decision of the Commission or of a commissioner shall within ninety days of the announcement thereof give notice of his desire to appeal, which shall be signed by the appellant or his duly authorised agent, to the Commission. The notice shall contain the grounds of appeal.

(3) For the purpose of determining an appeal the Appeals Tribunal shall have power to hear further evidence, but only if all of the three following conditions are satisfied:-

(a) if it is shown that the evidence could not have been obtained with reasonable diligence for use at the inquiry before the Commission or commissioner;

(b) if the further evidence is such that, if given, it would probably have an important influence on the decision;

(c) if the evidence is such as is presumably to be believed.

(4) If no notice of appeal is given the record of the Commission or commissioner, as the case may be, shall be final.

(Section inserted by 7 of 1959, s. 4.)

20. Notwithstanding such reservations as voiced by Tuivaga CJ in the Bulou Eta case, the Parliament saw fit to enact the 1998 amendment to the principal Act in the Native Lands (Amendment) (Appeals Tribunal) Act 1998, which not only gave jurisdiction to the Tribunal to hear appeals from Commission decisions under s 17 but made the decisions of the Tribunal “final and conclusive and cannot be challenged in a court of law”. This is exactly the same wording that was in s 100(4) of the 1990 Constitution.

21. Thus, the 1998 amendment of the Native Lands Act re-enacted the same law that was in s 100(4) of the 1990 Constitution.

22. The current position is that by virtue of s 2 of the Fiji Existing Laws Decree 2009, the existing laws in force immediately before 10 April 2009 continued in force and shall be read with such modifications, adaptations, qualifications and exceptions as may be necessary. The abrogation of the 1997 Constitution on 10 April 2009 therefore had no effect on the law in this area.

LEGAL ARGUMENT ON THE JURISDICTION POINT

23. Counsel for the Applicant quickly disposed of the Interested party’s submission that the application was not within the 3 months time limited by Order 53 rule 4(2) of the High Court Rules because the Tribunal decision was delivered on 10 June 2009 and this application was filed on 13 July 2009.

24. Much of Counsel’s arguments revolved around section 7(5) of the Act. It is what lawyers refer to as an “ouster” clause, a law that attempts to oust the jurisdiction of the Court.

25. Counsel cited several cases in support of their respective arguments for which I am grateful. I list them in chronological order and will deal with each of them in turn: (1) Vosailagi v Native Lands Commission [1989] FJHC 53; [1989] 35 FLR 116 (22 June 1989); (2) Nava v Native Lands Commission [1994] FJCA 34; Abu0055j.93s (11 November 1994); (3) State v Native Lands Commission, Ex parte Curu [1997] FJHC 249; Hbj0034d.1995s (14 November 1997); (4) State v Native Lands Commission No 2, Ex parte Koroimata [1997] FJHC 49; [1997] 43 FLR 102 (23 April 1997); (5) Natauniyalo v Native Land Commission [1998] FJCA 41; Abu0067u.97s (13 November 1998); (6) Satala v Bouwalu [2008] FJSC 20; CBV0005.2006S (13 October 2008).

(1) THE BULOU ETA CASE - “KA LEVU AND TUI NADROGA” DISPUTE

26. The first in this series of cases is Bulou Eta Kacalaini Vosailagi v Native Lands Commission [1989] FJHC 53. This was a dispute over the Ka Levu and Tui Nadroga chiefly title. Under attack was a decision of the Commission. The learned Chief Justice, Mr Justice Tuivaga, presided over the dispute. His Lordship expressed reservations as to whether section 17(1) of the Act giving powers to the Commission to decide on matters of Fijian chiefly title was consonant with Fijian customary law and tradition. The allegation in that case was that the Commission was biased. The learned Chief Justice made it very clear that the High Court had no jurisdiction to look into the merits of the Commission’s decision. The first issue raised in that case was the Commission’s decision to transfer Ratu Makutu’s name from his mother’s Tokatoka to the chiefly Tokatoka. It was argued that this was not authorised under the Act and that there was no evidence to support paternity. His Lordship held that there was no basis for this argument because the Act allowed it and there was documentary evidence to prove paternity. The second issue was that the Chairman of the Commission was allegedly biased and therefore did not accord natural justice in its decision. His Lordship considered the evidence and found that “there was a real likelihood of bias and partisanship on the part of the Commission”. The decision of the Commission was therefore held to be null and void.

(2) THE NAVA CASE – “TAUKEI VIDILO” NO 1.

27. The second in the series is the decision of the Court of Appeal in Nava v Native Lands Commission [1994] FJCA 34; Abu0055j.93s (11 November 1994). This was a dispute over the chiefly title, Taukei Vidilo. A dispute that started initially as between two cousins whose fathers were twin brothers. Ratu Nava was traditionally appointed to the title. His cousin took proceedings out of this Court for a declaration that the appointment was invalid and of no effect. The action did not proceed very far because they agreed that the Commission should decide the matter and referred the dispute accordingly. The Commission heard the parties and decided that neither of them was ready to assume the chiefly title and gave it to someone else to hold the title until one of the cousins was ready to assume it. Ratu Nava then filed proceedings in the High Court for judicial review of the Commission’s decision. He alleged that the Commission went outside the customs and traditions in appointing someone to hold the Taukei Vidilo title in an acting capacity. His cousin later joined in the proceedings. The learned trial Judge refused leave after giving full consideration to the Commission’s decision. His Lordship held that the applicant had no arguable case. Ratu Nava alone appealed to the Court of Appeal. The jurisdiction point, although raised, was not argued in the High Court. The learned trial Judge went on and heard the case without considering the point. The Court of Appeal itself raised it and dismissed the appeal. This case concerned a provision in the then Constitution that provided that such decisions as that of the Commission in this case were “final and conclusive and shall not be challenged in a court of law”. The Court of Appeal said this in respect of the ouster clause:

“Our attention has not been drawn to any other law which gives any power to the High Court to decide matters of custom in relation to native lands. The intention of the Parliament is clear that on matters of custom relating to native lands, the formal courts should not have any jurisdiction. The people most qualified to deal with these matters are the Fijian people themselves who are knowledgeable on matters of custom. The Parliament in it's wisdom charged the Native Lands Commission with this responsibility under the Native Lands Act. The Constitution under s 100 (4) renders the decisions and the opinions of the Commission in relation to matters set out under s100 (4) (a) and (b) to be final and conclusive.

In the present case, what the appellant sought to do in the High Court was 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 this particular case. 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. We agree with both counsel who conceded that there is no way of getting around s 100 (4) of the Constitution. Therefore we conclude that the trial judge erred in law in proceeding to deal with the application for leave for judicial review. We find it unnecessary to deal with the grounds of appeal.”

28. The Court of Appeal in Nava considered that the English authorities on the point were not relevant or applicable because Fiji had a written Constitution and England did not, the Constitution was supreme law and its provisions could not be held ultra vires of any other laws, and section 100(4) was more than an ouster clause. That provision dealt with a particular area of law peculiar to Fiji, namely, customary law. However, it is not clear, with respect, whether the Court was distinguishing the English cases only on the general principle that the Court had no jurisdiction to determine the merits of a Commission decision, or whether the Court distinguished those cases as well on the narrower jurisdiction point, namely that the Court may look into procedural irregularities and/or breach of natural justice by the Commission. This latter point was not considered as the Court of Appeal was specifically dealing with a case in which the High Court had looked into the merits of the Commission decision. Thus the narrow point of jurisdiction was still left open.

29. The Court of Appeal also considered that the Bulou Eta case, in which a decision of the Commission was held to be invalid on the grounds of bias on the part of the Commission, was not relevant to the issue at hand because that decision was handed down before the time of section 100(4) of the Constitution.

(3) THE “BULI RAVIRAVI” CASE

30. The narrow jurisdiction point came to be the very point for decision in the third in the series of cases State v Native Lands Commission, Ex parte Curu [1997] FJHC 249; Hbj0034d.1995s (14 November 1997). In this case the High Court was asked to review the Commission’s decision concerning the chiefly title of Buli Raviravi in Bua. The basis on which the decision was attacked was that the applicant was never heard or given an opportunity to be heard. Apparently, the procedure adopted by the Commission consisted of a meeting with the rival claimants orally addressed by the Chairman who then delivered his ruling. The applicant said in her affidavit, which was apparently uncontradicted, that “after the talking no one was invited to say anything and before anyone could say anything, [the Chairman of the Commission] was delivering his decision and thereafter he asked that the benediction be delivered. The meeting ended.” The Commission’s position was that the wordings of section 100 of the 1990 Constitution were so clear and unambiguous that so long as the Commission entered a decision in accordance with native customs, tradition and usage, such a decision was final and conclusive. Fatiaki J, as he then was, dismissed the Commission’s argument. His Lordship said this:

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

(1) falls within the ambit of disputes for which the (Commission) 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.”

(4) “THE TUI LAWA” CASE

31. The fourth case was in respect of the Turaga Tui Lawa dispute, State v Native Lands Commission No 2, Ex parte Koroimata [1997] FJHC 49; [1997] 43 FLR 102 (23 April 1997). The applicant’s complaint in this case was that he was denied natural justice because the Commission did not give him an opportunity to respond to two letters which were put before the Commission. Byrne J, as he then was, looked at translations of the letters and applied the principle in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, 80 that a decision given without regard to the principles of natural justice is void. This was despite s 100(4) of the then Constitution. His Lordship disagreed with the decision in the Nava case and said:

‘... 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.’ “

32. His Lordship adjourned the case to hear evidence as to whether the Commission drew the attention of the parties to the existence of the two letters. An appeal against this ruling to the Court of Appeal was subsequently dismissed. It is the fifth in the series of cases.

(5) APPEAL OF THE “TUI LAWA” CASE

33. The fifth case is Natauniyalo v Native Land Commission [1998] FJCA 41; Abu0067u.97s (13 November 1998). This was the appeal from the decision of Byrne J in State v Native Lands Commission No 2, Ex parte Koroimata [1997] FJHC 49. The Court of Appeal upheld the decision of Byrne J, dismissed the appeal and ordered the High Court to hear the review application. The Court of Appeal however, observed that the two letters in question were referred to in the Commission’s decision, which decision was a careful appraisal of conflicting arguments, and the grounds for attack on lack of process was not strong, although that was a matter for the High Court to decide.

34. The Court of Appeal found that Nava was decided correctly and left open the question of whether the policy approach of the English cases were relevant to Fiji.

35. The Court cited, it appears with approval, the English cases that decided that despite the presence of an “ouster” clause, the Court still had jurisdiction to look into cases of procedural impropriety or breach of natural justice:

“Byrne J. held that a decision or opinion of the First Respondent would only qualify for protection under s.100(4) if the decision were a valid decision - reached in accordance with the principles of natural justice. Accordingly, he held that he should conduct a judicial review hearing in order to determine whether in fact those principles has been breached.

In considering the privative provision of s.100(4), Byrne J. applied the well-known dictum of Lord Reid in Ridge v. Baldwin [1963] UKHL 2; [1964] A.C. 40, 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."

...

The principles laid down in Ridge v. Baldwin (supra) were underscored by the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission and Anor. [1969] 1 A.C. 147 Lord Wilberforce’s speech in that case is so well-known and authoritative as to make two quotations from it sufficient. Speaking of "privative clauses," he said at 207G and at 208B:

"...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."

"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?"

36. The Court did not accept the Privy Council dicta in Harrikissoon v. Attorney-General of Trinidad and Tobago [1980] A.C. 265. The facts in Harrikissoon were that the appellant teacher alleged that he had been transferred from one school to another without proper notice and as punishment. The appellant instead of following a laid out procedure which would have eventually led to a decision by the Teaching Service Commission, sued under the Constitution of Trinidad and Tobago for a declaration of breach of his human rights. The advice of Lord Diplock at p.272 summarises the position:

"One of the grounds on which both the High Court and the Court of Appeal dismissed the appellant’s claim was because they regarded themselves as precluded from adjudicating upon it by section 102(4) of the Constitution which provides:

"The question whether - (a) A Commission to which this section applies had validly performed any function vested in it by or under this Constitution..... shall not be inquired into in any court."

The ouster of the court’s jurisdiction effected by this section is in terms absolute. In their Lordships’ view it is clearly wide enough to deprive all courts of jurisdiction to entertain a challenge to the validity of an order of transfer on either of the grounds alleged by the appellant in the instant case; and that is sufficient to support the dismissal of the appellant’s claim on this ground also.

In all the judgments below, however, there is considerable discussion of recent English cases dealing with "ouster of jurisdiction clauses" contained in Acts of Parliament. Section 102(4) does not form part of an Act of Parliament; it is part of the Constitution itself. Their Lordships do not think that the instant appeal provides an appropriate occasion for considering whether section 102(4) of the Constitution, despite its unqualified language, is nevertheless subject to the same limited kind of implicit exception as was held by the House of Lords in Anisminic Ltd. V. Foreign Compensation Commission [1968] UKHL 6; [1969] 2 A.C. 147 to apply to an ouster of jurisdiction clause in very similar terms contained in an Act of Parliament. This question is best left to be decided in some future case if one should arise, in which the facts provide a concrete example of the kind of circumstances that were discussed in the judgments in the Anisminic case. The facts in the instant appeal do not. The appeal is dismissed with costs."

37. The Fiji Court of Appeal held that the Fiji Constitution provision was not as widely drawn. Had it been so widely drawn, then the valid performance of the Commission’s function (e.g. whether it had acted in accordance with the principles of natural justice) would not be open to challenge. The Court therefore appears to leave open to argument that an appropriately drawn ouster clause could exclude the Court’s jurisdiction, even in a case where there had been procedural impropriety and breach of natural justice.

(6) “TAUKEI VIDILO” NO 2.

38. The sixth and final in the series is the Supreme Court decision in Satala v Bouwalu [2008] FJSC 20; CBV0005.2006S (13 October 2008). This is the sequel to the Nava case, the first Taukei Vidilo dispute. In September 1991, the Commission appointed an “outsider” to hold the Taukei Vidilo chiefly title in an acting capacity other than the two cousins entitled to contest for it, which appointment was confirmed by the Court of Appeal. One of the cousins died during the lifetime of the appointee. The appointee then died in August 1999. That led to a contest between the surviving cousin and the Petitioner, Ratu Satala, the son of the appointee. Meetings were held and the parties made representations to the Commission. The Commission’s Chairman, on 5 November 1999, wrote a letter to the parties concerned advising that since the appointee was to hold the Taukei Vidilo title for his lifetime only, upon his death the rightful title holder was the surviving cousin. Attempts on behalf of the Petitioner to persuade the Commission to change its mind and hold a formal inquiry under s 17(1) were unsuccessful. The Petitioner then instructed solicitors to file an application for leave for judicial review in the High Court in 2002. Finnigan J ordered that the Commission should have heard evidence and heard the Petitioner before writing its letter of 5 November 1999. Finnigan J rejected the argument that the word “may” in section 17(1) of the Native Lands Act conferred a discretion, and that the Commission was not bound to hold an inquiry, without giving reasons. His Lordship ordered that the Commission and the Minister convene a commission of inquiry under section 17(1). The Court of Appeal reversed the decision of Finnigan J. The Court of Appeal held that the 1991 decision of the Commission not only decided who was to hold the chiefly title, but also decided that the successor was to be one of the two cousins on the death of the appointee, whoever commanded the support of their people. Since the Petitioner was not a child of one of the two cousins but a son of the appointee, the Court held that he was not eligible. The Petitioner then applied to the Supreme Court for special leave to appeal the Court of Appeal decision. The challenge to the Commission’s 1991 decision (i.e. the letter of 5 November) was on the basis of illegality and procedural impropriety. “He claimed that a dispute had arisen, and the Commission was bound to conduct a formal inquiry under s 17(1). He also claimed that its decision, to treat the dispute as settled by its 1991 decision, denied him natural justice because he was not a party to the earlier inquiry and was not heard before that decision was given.”

39. The Supreme Court held that although the Petitioner was not present during the 1991 inquiry, his father was, and as the eldest son his claim to the title was derived through and under him, the Petitioner was bound by the 1991 decision. He was bound by the principle of res judicata. The Court said:

“When the Commission conducts a formal inquiry it is relevantly a "judicial" tribunal whose decisions attract the res judicata doctrine: Spencer Bower, Turner and Handley "Res Judicata" 1996 pp 13-15. In Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 the High Court of Australia considered the effect of a 1954 decision of a Board appointed ad hoc under s 9 of the Land Ordinance 1911-1953 of Papua. It decided that certain land was owned by the Administration. In 1966 the claim was renewed by others in the same interest.

The majority, comprising Menzies, Gibbs and Stephen JJ, held that the 1954 decision created a res judicata estoppel which bound the later claimants in the same interest Gibbs J, whose judgment on this issue was adopted by the others in the majority, considered the question at length (pp 449-456). He said at 453:

"The use of the phrase ‘judicial tribunal’ in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by enquiring to what extent the tribunal exercises judicial functions or whether its status is judicial or administrative ... The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a Court, and its jurisdiction is derived from statute ... the Board was appointed to decide the case, and to give a decision and these words, prima facie, and in the absence of any indication to the contrary, import that the Board was to make a binding determination."

40. In respect of whether the Commission was bound by section 17(1) to hold an inquiry, the Supreme Court said no:

[23] Section 100(4) of the 1990 Constitution, which was then in force, contained a relevant privative section:

"(4) For the purposes of this Constitution the opinion or decision of the Native Lands Commission on

(a) matter 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 any native lands,

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

[24] Paragraph (b) of s 100(4) covers the decision of the Commission in 1991 determining who was entitled to the headship of the Tokatoka, and made it ‘final and conclusive’. However, the Commission’s opinion on a matter within para (a), concerning Fijian customs or the application of customary laws, is also made final and conclusive. Paragraph (a) has a wider operation than para (b).

[25] Counsel could not identify any section in the Act which authorises the Commission to give an opinion on any of the matters within para (a). Paragraph (a) assumes the existence of such a power and must be read as conferring power on the Commission to give an opinion on any of the identified matters identified in para (a). Insofar as the Commission’s 1991 reasons expressed an opinion on a matter within para (a), s 100(4) made its reasons final and conclusive and to that extent its reasons were not open to judicial review.

[26] While s 100(4) remained in force it protected the Commission’s decisions within its jurisdiction: Nava v Native Lands Commission [1994] FJCA 34, Natauniyalo v Native Lands Commission [1998] FJCA 41, but did not exclude review for jurisdictional error: Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147; Vosailagi v Native Lands Commission (1989) 35 FLR 116; Natauniyalo v Native Lands Commission [1998] FJCA 41.

[27] The repeal of the 1990 Constitution did not affect the previous operation of s 100(4) in relation to the 1991 decision: Interpretation Act cap 7 s 18(3)(b).

[28] The 1991 decision, the opinions of the Commission, and its informal decision evidenced by the letter of 5 November 1999 had practical effect and could not be ignored: Calvin v Carr [1979] UKPC 1; [1980] AC 574, 590.

[29] There can be no doubt that "a dispute as to the headship" arose on the death of Ratu Malelili but s 17(1) does not require the Commission to hold a formal inquiry into every such dispute. It provides that the Commission "may inquire into such dispute". Prima facie this does not impose a mandatory duty but confers a discretion. However, in an appropriate context, the word "may" or its equivalent confers a power which must be exercised in a proper case. In Pelling v Families Need Fathers Ltd [2001] EWCA Civ 1280; [2002] 2 All ER 440 CA Mummery LJ said at 446-7:

"In its ordinary and natural meaning the word ‘may’ is apt to confer a discretion or power. It is true that there are certain situations where a discretionary power is conferred for the purpose of enforcing a right and is coupled with an obligation or duty to exercise the power, when required to do so, for the benefit of the person who has the right ... this is not such a case."

[30] The leading case is Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, 241 where Lord Blackburn said:

"I do not think the words ‘it shall be lawful’ are in themselves ambiguous at all. They are apt words to express that a power is given; and as, prima facie, the donee of a power may either exercise it or leave it unused, it is not inaccurate to say that, prima facie, they are equivalent to saying that the donee may do it; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required on their behalf."

[31] Lord Selborne said at p 235:

"the meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge, or a public officer to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved ... from the context, from the particular provisions, or from the general scope and objects of the enactment conferring the power."

[32] In our judgment the power in s 17(1) was not conferred for the purpose of enforcing a right, meaning in this context, a private right: Julius v Lord Bishop of Oxford (above) at 235, 243, 244. A claimant to a Fijian title does not have a private right, he only has a claim to such a right.

[33] The Commission is not a Court and has no inherent power to control abuses of its process. If s 17(1) imposed an imperative duty it would be bound to hold a formal inquiry in every case even if the claim was frivolous or vexatious. The absence of any express or implied power to control such abuses would encourage such claims which would create uncertainty and division within Fijian communities. This favours the recognition of a discretion as the House of Lords held in a similar context in Julius v Bishop of Oxford (above).

[34] The question came before Tuivaga CJ in Vosailagi v Native Lands Commission (1989) 35 FLR 116, 128 where his Lordship said:

"Turning to the application of s 17(1) ... it should be noted that the section does not cast any obligation or duty upon the Commission to hold an inquiry whenever a dispute over headship ... arises. The words of the section ‘the Commission may enquire into such a dispute ...’ suggest that the holding of an inquiry is discretionary and not mandatory on the part of the Commission."

[35] This decision has stood for nearly 20 years, and it was not suggested that it had ever been doubted. It should be followed. In our judgment s 17(1) confers a discretionary power on the Commission which it is not bound to exercise.

[36] The Commission was entitled to take the view, expressed in its letter of 5 November 1999, that the dispute that arose on the death of [the appointee] was not a new one but an attempt to reopen an old one that the Commission had resolved in 1991. By deciding that [the appointee] should only hold the title for life the Commission rejected the claim of the junior male line to the title after his death and decided that it should then revert to the elder branch. The Commission had no duty to hold a formal inquiry after the death of [the appointee] and the petitioner has not shown that its exercise of discretion miscarried."

ANALYSIS OF THE STATUTE PROVISIONS AND CASES

41. An equivalent provision to s 100(4) of the 1990 Constitution was not enacted in the 1997 Constitution. Instead, the ouster of jurisdiction provision was exported to the Native Lands Act itself.

42. The 1998 amendment to the Native Lands Act inserted the ouster provision in section 7(5): "Decisions of the Appeals Tribunal are to be final and conclusive and cannot be challenged in a court of law".

43. That law has not changed despite the Abrogation of the 1997 Constitution earlier this year.

44. The line between a review of the merits on the one hand and a review based on breach of natural justice or procedural irregularity is, with respect, very blurred and in fact may not exist. Each case must be decided on its facts. Indeed, the examples that I give below will in fact show that for the purposes of the ouster clause under consideration, there is no difference between the two concepts.

45. For example, if the Applicant says that the Tribunal accepted a letter she gave to it at the hearing but the Tribunal did not give enough weight to the letter, and the Applicant seeks a review of the Tribunal decision, based on the Tribunal’s refusal to give the letter due weight, then that is clearly a review of the merits. That is the end of the matter and the Court has no power to ask for or receive a translation of the letter. Suppose that the Applicant says: "I handed the letter to the Tribunal, they looked at it but decided to give it back to me without saying more", an application for review on this ground is also an application for review of the merits and not amenable to review by the Court. However, if the Applicant says, the Tribunal refused point blank and without giving any reasons for refusing to accept a letter which I wanted it to consider, is that a breach of natural justice or procedural impropriety? Is the Court able to ask for a translation of the letter to determine whether the Tribunal should have accepted it or whether the letter might have affected the outcome? Now if we stop there for a moment and think about what the Court is asked to do, I think it becomes clear that this too is a review of the merits. The Court is being asked to look at the translation of the letter and to determine whether what was said in the letter is relevant to or would have affected the Tribunal decision, applying Fijian customary law because the Tribunal has to make its decision according to such customary law. This is the very task that the Tribunal is empowered by the Act to do and the very thing that the Act prohibits the Court from doing. In other words, where the Applicant says that the Tribunal did not accept evidence or took in evidence but did not give sufficient weight to it, then any application for review based on these grounds is an application for review of the merits and non judiciable. The Courts have no jurisdiction in any of those types of applications. Following on from that, once the Tribunal enters into an inquiry, whatever decision that it comes up with cannot be challenged in a Court however undesirable the outcome might be to the parties concerned or to the public at large.

46. However, if the Applicant says that she was not given an opportunity to be heard at all despite her asking and the Tribunal gave no explanation as to why they refused her, then that in my view would amount to breach of natural justice and procedural impropriety. It could also show bias, actual or apparent. The law that is applicable here is not Fijian customary law but the common law of Fiji. She has a right given by the Act, i.e. by the general law of Fiji, and her rights are covered by the general law which includes the common law right to be heard.

47. The fallacy in accepting the English decisions in my view, with the greatest of respect, is the mistaken assumptions that the Court is dealing with English law and that the Court is equipped to deal with Fijian customary law. The disputes to be decided by the Tribunal concern Fijian customary law. The examples that I have given above clearly demonstrate that the only occasion that the Court is allowed to interfere is when the Applicant is refused point blank by the Tribunal without the Tribunal giving any reasons why he or she was not heard. Once the Tribunal embarks on an inquiry, the Court has no jurisdiction to review whatever the decision that the Tribunal makes. Such an outcome was acknowledged and left open by the Privy Council in Harrikissoon (supra). Also, perhaps this was one of the reasons why the Court of Appeal in the Taukei Vidilo No 1 case had reservations about applying the English decisions to an ouster clause concerning Fijian customary law.

48. The examples above clearly demonstrate that one can fall into error by approaching this matter from the point of view of jurisdiction and to jealously guard against any attempt to exclude the jurisdiction of the Courts. The better approach, in my respectful view, is to ask the question: which law did the Parliament wish to apply in this situation? Is it English customary law, which lawyers refer to as "common law" as imported into the common law of Fiji, or is it Fijian customary law? Approaching it in this way it becomes clear that it is not an issue as to conflict between the two systems of law, but rather the systems complementing each other. In the context of the Native Lands Act, the Parliament has clearly indicated that it is Fijian customary law that should apply. The application of English customary law and Fiji common law is excluded.

49. The reason that I say the two systems of law complement rather than compete against each other is this. The Act says that the resolution of disputes as to headship shall be decided according to Fijian customary law. Section 17 of the Act gives the applicant a right to have her grievance heard by the Commission. The Supreme Court decision in the Taukei Vidilo No 2 case, Satala v Bouwalu [2008] FJSC 20, now says that the Commission has a discretion whether to hear her grievance or not. If the Commission says it does not want to hear the applicant then that is the end of the matter. The common law and the statute law of Fiji (together the ‘general law’) does not give the applicant the right to force the Commission to hear her grievance. The end result is that whatever decision that was made by the Fijians themselves at the village level remains, and the wish of the legislature is fulfilled. If the Commission decides to hear her grievance, and she does not agree with the decision, she has a right under section 7 of the Act to appeal to the Tribunal to review the decision of the Commission. The question whether the Tribunal has a discretion to hear her or not has not been decided by the Court as yet and I leave that open to be decided when the appropriate case comes before the Courts. Now section 7(5) says that the decision of the Tribunal is "final and conclusive and cannot be challenged in a court of law" and, if I am correct in my assessment of the law, that is the end of the matter. Again, the Tribunal has reached its decision according to Fijian customary law, the wish of the legislature has been met and the Court has no power to interfere.

50. A different situation arises where the applicant has a right to be heard, and the Tribunal has a duty to hear her because the Act says so, and if the Tribunal refuses to hear her, then under the general law, the applicant can come to Court and ask the Court to enforce her right under the general law to be heard. Her grievance will of course be heard applying Fijian customary law but nevertheless she has a right under the general law of Fiji to be heard in the Courts. There is no conflict between the general law and Fijian customary law but rather, as I have said, the two systems complement each other.

51. Some may argue that without recourse to the Civil Courts, it could lead to a situation of tension and may be even violence. My answer to that is the remedy lies in the Criminal Courts, the Police and to resolution according to Fijian customary law but not in the Civil Courts as intended by the Parliament.

52. The case of Satala v Bouwalu [2008] FJSC 20 is an unusual and exceptional case and I think, with the greatest of respect, the right decision was arrived at but for the reasons I have given above, even in that case the court should not have entertained the application because it is an intrusion into an area of law that was exclusive to Fijian customary law.

53. Finally, to hold that the law is anything other than as I have said above, is the equivalent of sending the Court on an inquiry for the answer to the rhetorical question: how long is a piece of string? The review of a Tribunal decision arrived at after applying Fijian customary law should not be dependent on the skilful drafting of grounds of appeal by a lawyer in respect of matters of Fijian customary law that are based on non Fijian customary law and concepts.

THE LAW

54. With the greatest of respect, it is my judgment for the reasons I have given above, that the law of Fiji, as it stands at the moment, is as follows:

1. Section 7(5) of the Native Lands Act [Cap 133], in so far as it applies to determinations of headship under section 17, means what it says, i.e., "Decisions of the Appeals Tribunal are to be final and conclusive and cannot be challenged in a court of law".

2. This Court has no jurisdiction to review such decisions on any ground whatsoever.

55. However, if I am wrong, or that I am bound as matter of precedent by the decisions of the Court of Appeal and the Supreme Court, the general principles that can be gleaned from the cases are as follows:

(a) The Courts have no power to review the merits of Tribunal decisions, and must not usurp the proper role of the Tribunal: Satala v Bouwalu [2008] FJSC 20; Nava v Native Lands Commission [1994] FJCA 34; Vosailagi v Native Lands Commission [1989] FJHC 53;

(b) The Courts have very limited jurisdiction to inquire as to whether the Tribunal followed procedural requirements set by the Act or whether the Tribunal followed the principles of natural justice; A very limited jurisdiction, but jurisdiction none the less: State v Native Lands Commission, Ex parte Curu [1997] FJHC 249.

(c) Only in the clearest of cases should the Court interfere. The facts in the Buli Raviravi case was one of those cases although Fatiaki CJ stated that all the applicant needed to show was a "prima facie reviewable error". I would prefer to adopt what Byrne J said in State v Native Lands Commission No 2, Ex parte Koroimata [1997] FJHC 49; [1997] 43 FLR 102 (23 April 1997), that the Court should review if the decision is ‘tainted by the most obvious bias or failure to accord to the parties a fair hearing’. Each case therefore must be determined on its facts. To do otherwise would go against the clear words and intention of s 7(5) of the Act that all matters of Fijian customs and traditions are best left to the Fijians, who know their customs and traditions best, to decide. This does not, in my view, go against the judgments in this Court, the Court of Appeal or the Supreme Court.

(d) Finally, it is the Applicant that has the onus of proof of whether there has been procedural impropriety or breach of natural justice.

APPLICATION OF THE LAW TO THIS CASE

56. The Applicant’s complaint is that the Tribunal was biased, acted illegally, irrationally and with procedural impropriety. It is not a complaint that she was not heard at all. Thus, holding the view of the law that I have set out above, this Court does not have jurisdiction to hear this application. There is no need for me to look at the Grounds themselves.

57. However, as I have said, if I am wrong in holding that view, then, I must inquire whether the review of the Tribunal decision sought by the Applicant in this case is a review of the merits or a review based on some procedural irregularity or failure to do natural justice or both.

58. Further, in recognition and appreciation of all Counsel’s efforts in addressing me on the law as they saw it, I think I should consider the Grounds for review.

THE APPLICANT’S GROUNDS FOR JUDICIAL REVIEW

59. The Grounds for judicial review are contained in the Applicant’s Application and the Statement filed pursuant to Order 53 rule 3(2) of the High Court Rules 1988 as well as in her Affidavit in Support filed on 13 July 2009.

60. The Application states that the grounds upon which the Applicant is seeking relief is that the Respondent, i.e. the Tribunal, was "biased, acted illegally, irrationally and with procedural impropriety". It then sets out the particulars in paragraphs (a) to (j), which the Applicant says support these grounds. The same is also set out in the Statement. The Applicant’s Affidavit expands on these particulars.

61. The particulars as set out in the Application are as follows:

"(a) There was actual bias by the Respondent misinterpreting the word "veituraga" in the oath of Jone Sovasova in 29/06/1914 to mean that no woman was to hold the position of Tui Vitogo and by stating that the supporters of the Interested Party were clear in their support while the witnesses in support of the Applicant were only such from the sound of their voices or question or discredited or not considered at all.

(b) There was ostensible bias by a secret meeting between the supporters of the Interested Party and Respondent before the meeting, gifts presented at that meeting, the length of such meeting, one Lepani Naisoiwalu coming from that meeting and whispering to Interested Party without disclosing to Applicant and her supporters what the meeting was about, going back and coming back to the meeting with Interested Party’s supporters and the Respondent in full view of everyone in the hearing venue.

(c) There was mistake of law in the Tribunal disobeying the order of the High Court that the Respondent disclose to the Applicant any evidence in its possession excluding otherwise eligible women from the position of Tui Vitogo. The Tribunal failed to disclose the oath of Jone Sovasova of 29/06/1914 within reasonable time prior to the hearing for the Applicant to give rebuttal evidence on.

(d) There was mistake of fact and or law in the Respondent misinterpreting the said oath of Jone Sovasova to exclude otherwise eligible women from the position of Tui Vitogo. The Respondent interpreted the word "veituraga" from the pharase "era vakaraica na veituraga ena veiyavusa me kunei rawa e dua ka dau i valavala vinaka vei ira" as excluding women when in fact such word mean that "the Lords searched for one who treated the people well" to take the position of Tui Vitogo. Women were excluded as the searchers, but not excluded from the word "one".

(e) The Respondent failed to ask itself the correct question as to who were the Lords who searched for the one who treated the people well. In not asking this relevant question the Respondent ignored the relevant evidence of Turaga ni Yavusa Tunuloa, Turaga ni Mataqali Matarisiga, Turaga ni Mataqali Burenitu, Turaga ni Mataqali Nadurukulu as the Lords who would do the search for the one as well as the evidence of Applicant on the issue.

(f) The Respondent took into account the irrelevant consideration of three letters of support of 11/05/2005, 16/08/2005 and 18/08/2005 as they were not of the relevant Lords who would do the search for the one who treated the people well.

(g) The Respondent failed to take into account the mistreatment of the people by the Interested Party as given in evidence by Applicant as that was a relevant consideration on the oath of Jone Sovasova of 29/06/1914.

(h) The interpretation of the word "Veituraga" from the oath of Jone Sovasova of 29/06/1914 to exclude women from the position of Tui Vitogo was irrational in the Wednesbury sense.

(i) The Respondent was also irrational in the Wenesbury sense in citing oath of Jone Sovasova that the Lords of Yavusas did the search for the one to be Tui Vitogo, yet ignored it and stated at paragraph A of page 11 of their decision that the question of who appointed Tui Vitogo was only for the Matavuvale Vakaturaga or Chiefly Family of Vanuakula.

(j) The Respondent was procedurally improper in not disclosing the said oath of Jone Sovasova to the Applicant nor its interpretation that would detrimentally exclude the Applicant for the Applicant to comment on or give rebuttal evidence on. "

62. The Applicant’s Affidavit expands on these particulars and explains the background to this dispute in paragraphs 4 to 23 as follows:

"4. That this dispute as to the title was referred to the Native Land Commission who decided on the 10th day of March 2006 that the Interested Party be the Tui Vitogo.

5. That I appealed the decision to a differently constituted Native Lands Appeals Tribunal who without coming to do a hearing in Vitogo Village decided that the Interested Party be the Tui Vitogo based on two letters of support for him which was not shown to me to comment on.

6. That the said Tribunal decision was quashed by the High Court at Lautoka in State v Native Land Appeals Tribunal and Others ex parte Adi Makereta Marama Roko HBJ 07 of 2007 with directions to the Tribunal to disclose such letters as well as any document that the Tribunal may have in its possession concerning the appointment of Tui Vitogo.

7. That the Tribunal constituting Ratu Talemo Ratakele, Ro Epeli Mataitini and Aminiasi Katonivualiku did not give me any document whatsoever before or during the hearing.

8. That on 23rd April, 2009 I, the Interested Party, witnesses and members of the Tikina of Vitogo gathered in a shed on the village green in Vitogo Village to await the Respondent.

9. That the members of the Tribunal came in their vehicle to the gate of the village and went into the house of Jolame Nakacia who I knew as a supporter of the Interested Party as well as others who supported him.

10. That I noted especially the Tikina representative Lepani Naisowalu there. He supported the Interested Party and had been instrumental in getting letters signed supporting the Interested Party.

11. That I saw some women enter the said house with mats.

12. That Lepani Naisowalu then came to the shed and whispered something to the Interested Party. He did not tell the reset of us anything or as to why they were holding secret meeting with Respondent before the hearing.

13. That the said Lepani Naisowalu then came with other supporters of Interested Party accompanying Ratu Talemo Ratakele, Ro Epeli Mataitini and Aminiasi Katonivualiku.

14. That during the hearing I was not given any document relied upon by the Respondent and in particular was not given a copy of the oath of Jone Sovasova of 29/06/1914 relied upon by them at p9 paragraph 4 of their decision. A copy of their decision in Fiji is marked "MR1" and annexed hereto. I will annex an English translation in a supplementary affidavit.

15. That I have read the interpretation put upon such oath by the Respondent and say that they were mistaken that the word "veituraga" in the oath excluded women from the position of Tui Vitogo.

16. That the oath excluded women from those choosing the Tui Vitogo who could be either man or woman. I believe that the Respondent either made a mistake or were biased or irrational.

17. That the Tribunal never told me to respond to their interpretation which was detrimental to my position as a woman.

18. That the Tribunal never did ask itself or ask us who were the proper "veituraga ni veiyavusa" (Yavusa Lords) contained in the oath of Jone Sovasova relied upon by them.

19. That I therefore further believe that they fell into procedural error in not considering whether those Turagas that anointed me Tui Vitogo were the proper Yavusa Lords or were they those that supported the Interested Party by letter dated 18/08/2005.

20. That likewise the Respondent made procedural error in considering the letters of 11/05/2005 and 16/08/2008 as they were not from Lords of Yavusas as sworn by Jone Sovasova but Mataqali Vanuakula, from amongst whom one was to be found as treating the people well.

21. That I also note from the Respondent’s decision that the Interested Party’s witnesses were favoured while mine were downgraded, criticized and rejected.

22. That the Tribunal also failed to take into account that the Interested Party had signed away fishing licenses without our people knowing where the money went, nor his getting money for giving leases over our Mataqali lands, for us women of Vanuakula to be taken out of the Vola ni Kawa Bula, his splitting the Methodist Church in Vitogo, splitting the Methodist Church in Vitogo, splitting our people as given by me in evidence.

23. That I therefore believe that the Respondent has made procedural errors and I therefore ask for leave for judicial review of Respondent’s decision of 10th day of June, 2009."

63. The application was also supported by an Affidavit sworn by Ratu Inoke Nakosakosa, filed on 13 July 2009. This affidavit also sets out further particulars in paragraphs 1 to 7 as follows:

1. That I am the Turaga ni Yavusa Tunuloa which Yavusa used to have the position of Tui Vitogo before it was given to Yavusa Vanuakula.

2. That I gave evidence at the hearing of the Tui Vitogo title dispute between the Applicant and Interested Party in Vitogo Village on the 23rd day of April 2009.

3. That I, the Taukei Burenitu, Manuqila and Nadurukula are the relevant Turagas (Lords) involved in the appointment and installation of the Tui Vitogo.

4. That Jone Sovasova in his oath of 29/6/1914 recognised that various Turaga ni Yavusas were to look for the suitable candidate from the Vanuakula people who would be kind to the people.

5. That rather than ask itself who was the appropriate Turagas (Lords), the Tribunal took into account the irrelevant consideration of the choice of the Vanuakula people ("Matavuvale Vakaturaga") as well as other Turagas who had no role in such appointment.

6. That the Respondent was procedurally improper into taking irrelevant "Kingmakers" like the Vanuakula family or other Lords who had no role at all in such consideration.

7. That the Tribunal misdirected itself in making new law that was not customary that the appointment was one for the "Matavuvale Vakaturaga".

CONSIDERATION OF THE GROUNDS AND PARTICULARS

64. Counsel for the Tribunal submitted that particulars 4.1 (a), (d) – (h) of the Statement are particulars of grounds for a review of the merits. Counsel for Ratu Williame said none of the grounds make out a case for judicial review. Counsel for the Applicant of course made no concessions.

65. I agree with Counsel for the Tribunal that paragraphs 4.1(a), (d) to (h) are particulars for grounds for review of the merits of the Tribunal decision.

66. I also find that particular 4.1(b) is also a particular for review of the merits. There is no suggestion that whatever took place was not in accordance with Fijian custom and tradition.

67. Again, particular 4.1(c) is to support a review of the merits. Firstly, the order of the High Court in respect of the first Tribunal decision may be null and void for lack of jurisdiction. Secondly, to embark on an enquiry as to whether the oath was disclosed within a reasonable time would first require the Court to inquire into its relevance which would by necessity require the Court to look at its contents, an exercise which is not permissible under the Act.

68. Particular 4.1(i) highlights the fallacy that I referred to above. The Court is asked to import and apply non Fijian customary law into a situation where Fijian customary law is the applicable law. There is no room in my view for co-existence of the two laws in the situation at hand.

69. I also find that particular 4.1(j) also is a particular for review of the merits. Whether the oath was disclosed or not would necessarily require the Court to look at and consider what was said in it.

70. There is no doubt that a hearing took place before the Tribunal. So applying the above principles there are no proper grounds for review on breach of natural justice or procedural impropriety.

71. I have also considered the affidavits referred to above and find that they too show no grounds for review on breach of natural justice or procedural irregularity. Rather, they show grounds for review of the merits: paragraphs 14 to the end of the Applicant’s Affidavit. Paragraphs 8 to 13 fall far short of showing a blatant case of bias, real or apparent. Paragraphs 3 to the end of Ratu Inoke’s Affidavit are grounds for review of the merits.

FINAL OUTCOME

72. The final outcome is that this Court has no jurisdiction to hear this application on the basis that section 7(5) of the Native Lands Act ousts the jurisdiction of this Court.

73. Further, or in the alternative, the Applicant has not demonstrated that she has grounds for review based on breach of natural justice or procedural impropriety.

74. The application fails and is dismissed.

75. The decision of the Tribunal delivered on 10 June 2009 that Ratu Williame Ratudale Sovasova be the holder of the chiefly title of Tui Vitogo therefore stands.

76. Before closing I wish to respectfully restate to the parties and to remind them of the wise counsel of Chief Justice Tuivaga in the Ka Levu case where His Lordship said:

"Fijian custom and tradition has its own in-built method of resolving even the hardest of disputes. It is called "vei sorosorovi" and is invoked in order to restore peace and harmony to village life and in a larger context to the life of the vanua. It of course requires a huge helping of magnanimity wisdom and understanding. It is only when Fijian custom and tradition is ignored or gives way to expediency that disputatious situations will arise in Fijian society."

COSTS

77. I understand there is some tension between the rival factions and I do not want to aggravate it so I make no order as to costs.

ORDERS

78. The Orders are therefore:

1. The Applicant’s application for leave to apply for judicial review of the Native Lands Appeals Tribunal of 10 June 2009 that Ratu Williame Ratudale Sovasova hold the chiefly title of Tui Vitogo is dismissed for want of jurisdiction of the High Court.

2. There is no order as to costs.

Sosefo Inoke
Judge