Naimila v Apisalome [2010] FJHC 156; HBC187.2009L (7 May 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 187 of 2009L

BETWEEN:

JOSUA NAIMILA and EPELI BUKADOGO
Plaintiffs

AND:

ROGOLEA APISALOME
1st Defendant

AND:

NATIVE LAND TRUST BOARD
2nd Defendant

AND:

PERMANENT SECRETARY FOR LANDS
3rd Defendant

AND:

THE ATTORNEY GENERAL OF FIJI
4th Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr. Haroon A Shah for the Plaintiffs
Mr. N Tuifagalele for 2nd Defendant
Mr. J Lewaravu for 3rd & 4th Defendants

Solicitors: Haroon Ali Shah Esquire for the Plaintiffs
Legal Officer NLTB for the 2nd Defendant
Legal Officer Attorney General for the 3rd & 4th Defendants

Date of Hearing: 30 April 2010
Date of Judgment: 7 May 2010

INTRODUCTION

[1] This is the Second, Third and Fourth Defendants’ application to strike out the Plaintiffs’ claim against them on the grounds that the Statement of Claim
Discloses no reasonable cause of action.

THE STATEMENT OF CLAIM

[2] The Statement of Claim under attack is as follows:

1. The Plaintiffs are Trustees of Mataqali Draqara, Tokatoka Draqara and Tokatoka Nalibuvatu Yavusa Wailevu in the Tikina of Rakiraki (hereinafter referred to as Draqara).

2. The said Draqara is registered as Tokatoka No. 82 in the Ai Vola Ni Kawa Bula being the register of all Fijian Tokatoka’s within the Fiji Islands.

3. The Head Chief of all the landowning unit in the Yavusa of Wailevu is known as the “Tui Wailevu” (hereinafter referred to as the disputed title).

4. The said Draqara is the principal land owning unit within the Yavusa of Wailevu.

5. A dispute has existed and still exists as to the appointment of the Tui Wailevu.

6. The Plaintiffs have on numerous occasions requested the Defendants and in the particular the 2nd, 3rd and 4th Defendants to convene a meeting as is prescribed in the Native Lands Act Cap 133 to determine the true and correct title holder of Tui Wailevu and the said Defendants have refused and neglected to convene any meetings whatsoever to determine the said title.

7. The Tui Wailevu is entitled to substantial rental monies as the head of the Land owning unit.

8. According to the records of the said Draqara the 1st named Plaintiff is the rightful Tui Wailevu.

9. The Defendants have wrongfully and without a proper scrutiny appointed the 1st Defendant as the “Tui Wailevu”.

10. The 1st Defendant is not from within the Mataqali Draqara and also not within a land owning unit within the said Tokatoka and as such is unqualified to be considered for the title of Tui Wailevu.

11. In the premises the Defendants are in breach of their statutory Duty by reason of which the Plaintiffs have been deprived of their rightful title and rental payments.

WHEREFORE THE PLAINTIFFS CLAIM:

(a) An Order that the 1st Defendant’s appointment as Tui Wailevu be forthwith revoked.

(b) An Order that the 2nd, 3rd and 4th Defendants do forthwith hold a meeting of all parties concerned to determine the rightful holder of theTui Wailevu.

(c) In the event it is conceded and/or determined that the 1st named Plaintiff is the rightful Tui Wailevu then all rental monies and/or royalties hitherto unpaid be paid to the 1st named Plaintiff by the defendants.

(d) An Order that all rental monies and/or royalties henceforth earmarked for the Tui Wailevu by the 2nd to 4th Defendants inclusive be withheld until the determination of the rightful Tui Wailevu.

(e) An Order that the 1st Defendant be restrained whether by himself/his servants or agents or howsoever from uplifting any royalty/lease monies and/or doing any act in the name or authority of the Tui Wailevu until determination of this here action or determination by a properly convened arrears of land meeting of the 2nd, 3rd and 4th Defendants.

(f) An Order that 2nd, 3rd and 4th Defendants do determine the arrears of ownership by the said Draqara, Yavusa Wailevu.

(g) An Order that the Defendants do pay costs on a Solicitor/Client indemnity basis.

[3] I have set out the whole claim because I found it difficult to ascertain the exact nature of the claim against the Second, Third and Fourth Defendants (hereinafter the “Applicants”). Without unduly critcising counsel for the Plaintiffs for how the claim has been pleaded because it is probably the nature of the claim that has given rise to it, it is the type of pleading that has been referred to as the “scatter gun approach” and which has in no small way led to the filing of this application. I think the term “fishing net approach” is more correct because nothing is intended to be missed by this approach, good or bad. Every effort must be made to avoid it.

[4] The main thrust of the Plaintiff’s claim is as set out in paragraphs 6 and 9 of the Statement of Claim. Paragraph 6 states that the Applicants, despite numerous requests by the Plaintiffs, refused and neglected “to convene a meeting as is prescribed by the Native Lands Act Cap 133 to determine the true and correct title holder of Tui Wailevu”. Paragraph 9 states that the Applicants “have wrongfully and without proper scrutiny appointed the 1st Defendant as the Tui Wailevu”.

CASE HISTORY

[5] The application was brought on by Summons filed on 27 October 2009 by the Third and Fourth Defendants and at the hearing Ms Khan informed the Court that the Second Defendant wished to join in and support the application. No one appeared for the First Defendant as he appears to have not been served with the Writ of Summons and the Statement of Claim.

[6] The application was first called on 7 December 2009 when the date for hearing was set for 30 April 2010. No earlier dates were available because of the busy schedule of this Court. I gave directions for the filing of affidavits but none have been filed so none have been considered in this application. Counsel for the Third and Fourth Defendants filed his submissions and list of authorities and I am grateful for all counsels’ cooperation and for proceeding with the hearing as scheduled because without their cooperation this decision could not have been delivered earlier.

THE APPLICATION TO STRIKE OUT CLAIM

[7] The application was made pursuant to O. 18 r. 18(1)(a) and (d) of the High Court Rules 1988.

[8] No affidavit material have been filed and considered so the hearing proceeded as an application under O. 18 r. 18(1)(a) in which no evidence is admissible: O. 18 r. 18(2).

CONSIDERATION OF THE APPLICATION

[9] It is now well settled that only in the clearest of cases will the Court strike out a claim at this stage of the proceedings and the approach to be taken is as set out by the Court of Appeal[1] in National MBF Finance (Fiji) Ltd v Buli [2000] FJCA 28; ABU0057U.98S (6 July 2000):

The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention. It follows that an application of this kind must be determined on the pleadings as they appear before the court. In this case the Judge’s task was made more difficult because a considerable amount of factual material was placed before him. We wish to point out that this is inappropriate and undesirable.

[10] Mr Green, counsel for the Third and Fourth Defendants, divided the Plaintiffs claim into three broad issues. He submitted that the first is whether this Court has jurisdiction, the second is whether the Native Lands Commission is the proper defendant in this action and the third is whether this action should have been by way of judicial review.

[11] My view is that if this Court does not have jurisdiction then there is no need to go any further and consider the other two issues. In any event, all three issues are connected because of the subject matter of this action, namely, the merits of the appointment of the First Defendant as the Tui Wailevu.

[12] For the purposes of deciding this application, I am to assume as true that the Applicants did appoint the First Defendant as the Tui Wailevu and that, subsequently, they refused to convene a meeting to determine whether their appointment was correct. I am also to assume that the First Defendant is not qualified to hold the chiefly title. However, that is not the end of the matter because I need to consider the orders that the Plaintiffs seek from this Court which in essence require this Court to ultimately make a determination as to whether the First Defendant has been rightly appointed as the Tui Wailevu.

[13] Does this Court have the jurisdiction to hear such a case? Mr Green cited several cases: Tabua v Native Lands and Fisheries Commission [1004] FJHC 295; Namatua v Native Lands and Fisheries Commission [2005] FJCA 85; ABU0020.2004S (4 March 2005) and my judgment in State v Native Lands Appeals Tribunal [2009] FJHC 164; HBJ 2 of 2009L (14 August 2009) (the Tui Vitogo case) as supporting his submission that this Court does not have such jurisdiction. I considered the cases in this area of the law in the Tui Vitogo case and came to the conclusion that this Court has no jurisdiction to interfere with a decision of the Native Lands Commission or the Native Lands Tribunal:

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.

[14] In Yavutu v Vunisa [2010] FJHC 18; HBC318.2008L (28 January 2010), I applied the Court of Appeal decision in Namatua v Native Lands and Fisheries Commission [2005] FJCA 85; ABU0020.2004S (4 March 2005) that this Court has no jurisdiction to hear disputes amongst native owners over ownership of native land. This is what the Court of Appeal said:

[31] In our view, the originating summons is misconceived because the High Court has no jurisdiction to deal with a dispute that may arise under s 16 or on appeal to an Appeals Tribunal under s 7 of NLA. A decision of the Appeals Tribunal is final unless the provisions under s 7 of NLA are not complied with. That is not the complaint in this case.

[32] The High Court has no jurisdiction to deal with the dispute.

[33] Consequently, there can be no cause of action to be tried in the High Court.

[34] In view of this conclusion, it is not necessary to consider the other considerations relevant in granting an interlocutory injunction.

[35] The trial judge recognized that the High Court had no jurisdiction when he stated:

"In the Court’s view, what it has been asked of is to decide upon as contained in the Plaintiffs Originating Summons, goes to the issue of whether this Court has jurisdiction and therefore the competence to delve into and review the processes and procedures including the decisions of the NLC involving native customs and traditions, that are governed by its own laws and conventions. Under these circumstances, while it deliberates upon these jurisdictional issues, it would not, this Court believes, be advisable and in fact unwise, to prematurely intervene and act in any manner that would prove prejudicial to the exercise of the powers and discretion of such body."

[36] The trial judge was correct in this regard and ought to have ruled that there was no cause of action to be tried in the High Court. That would have been the end of the matter.

[15] Even if I am to assume that the appointment of the First Defendant was made by the Applicants, who clearly do not have the power or the duty to do under the Native Lands Act [Cap 133], and hence can be the basis for a claim against the Applicants, such a claim is contradicted by paragraph 11 of the Statement of claim which is based on the opposite premise that the Applicants do have such power and duty. Indeed, counsel’s submissions at the hearing were that the Applicants did have the power to appoint.

[16] Further, even if I am to assume that the Applicants have a duty to call a meeting of the Native Lands Commission under the Act to determine the rightful holder of the chiefly title under s 17, it is now settled by the Supreme Court[2] in Satala v Bouwalu [2008] FJSC 20; CBV0005.2006S (13 October 2008) that the holding of such a meeting is discretionary:

[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.

[17] This Court cannot direct the Commission to do otherwise.

[18] Further, I do not think that any defects in the Statement of Claim can be cured by amendment because at the end of the day this Court is being asked to determine who the rightful holder of the chiefly title is, a determination which is to be undertaken by the Native Lands Commission and Native Lands Tribunal whose decision cannot be reviewed in this or any other Court.

[19] The application by the Second, Third and Fourth Defendants succeeds and I therefore strike out the claim against them.

CLAIM AGAINST THE FIRST DEFENDANT

[20] Although the First Defendant did not participate in this application, I think the claim against him should also be dismissed by necessary inference. I therefore strike the Plaintiffs claim against the First Defendant as an exercise of this Court’s inherent jurisdiction to guard against an abuse of its process.

COSTS

[21] As in other similar cases I do not think that an award of costs is appropriate lest it inflames the disputation. I therefore make no order as to costs.

ORDERS

[22] The Orders are therefore as follows:

1. The Plaintiffs claims against all the Defendants are struck out.

2. There is no order as to costs.

Sosefo Inoke
Judge

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^[1] Coram: The Rt. Hon. Sir Thomas Eichelbaum, The Hon. Sir David Tompkins, The Hon. Sir Rodney Gallen, Justices of Appeal.
^[2] Coram: The Hon Justice Keith Mason, The Hon Justice Kenneth Handley, The Hon Justice Ronald Sackville, Judges of the Supreme Court.