Kauleta v Dagaga [2010] FJHC 182; Civil Action 002 & 003.2010 (28 May 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: 002& 003/10

INTHE MATTER of an application under Order 113 of the High Court Rules 1988
for an Order for Summary Proceedings for immediate vacant possession of land
and s 169 of the Land Transfer Act Cap.131

BETWEEN:

JOJI KAULETA
of the Yavusa Ketei of Waivunia Village,
Savusavu, Turaga ni Yavusa Ketei.
PLAINTIFF

AND:

OSEA DAGAGA
of Waivunia Village, Savusavu, villager.

PASTOR MOSESE VONO
of CMF Church, Waivunia Village Savusavu

CHRISTIAN MISSION FELLOWSHIP
a duly registered religious body
DEFENDANTS

BEFORE: MASTER ROBINSON. H ESQ.

PLAINTIFF COUNSEL: Mr. VAKALOLOMA . A
DEFENDANTS COUNSEL: INPERSON

Date of Ruling: 28 May 2010.

RULING

(1) This is an application for vacant possession pursuant to Order 113 of the High Court Rules and under section 169 of the Land Transfer Act Cap. 131.

(2). There is another related Matter which will be dealt with together with this ruling as it relates to the same set of facts and which arose from the same transaction. This matter is:-

1. Joji Kauleta –v- Pastor Mosese Vono & Anor: CA No: 3/2010

BACKGROUND

(3). The Plaintiff is the Turaga ni Yavusa or head of the land owning unit known as Ketei in Savusavu, Vanua Levu. The Plaintiff’s right to the land is derived from the Yavusa’s entitlement to native land granted by the Native Land’s Commission and which is claimed to have been Gazetted by the Native Land Trust Board on the 22 August 2002. The land in question is described in Schedule 1 of the said Gazette as Lot 33 on Plan F 22 & 4 and contains an area of 1122.36 hectares in the district of Nasavusavu, in Vanua Levu.

(4). The Plaintiff claims that the Defendants have no right to remain on the land and take possession because their right on the land is derived from customary usage only.

(5). The Defendant Mr. Osea Dagaga claim that he has a right to remain on the land by a traditional exchange or gift the details of which is unclear to him but is known within the Fijian custom as "I Kanakana". This a form of usage of native land derived from exchanges of services, traditional obligations or in some instances a form of dowry accompanying a bride of high rank. The "dowry" of course is returnable at the death of the bride but sometimes remains in perpetuity depending on the strength of the relationship between the parties after marriage. The word "Kanakana" denotes a usage for the purpose of growing food to sustain the parties whose services are acknowledged. The word "Kana" literally means eat and "kanakana" the source, in this instance, land from which one obtains food to eat.

(6). The Defendants further claim that their right to the land is also recognised and is gazetted by the Native Land Trust Board the details of which is unclear to them. The Defendant Mr. Osea Dagaga as a consequence of the right of usage to the land allowed the Defendants Pastor Mosese Vono in CA No: 3/10 to build a church and residential property on the said land. He too is a member of the church.

(7). It appears that this form of usage is not, as far as the Plaintiff is concerned, the form allowed through custom and tradition and it is for this reason that the application is made.

JURISDICTION

The first problem the Plaintiff is faced with is whether the High Court has jurisdiction to determine this matter. It is clear from the affidavit filed by the Plaintiff that the dispute relates to Native land and that there were decisions relating to the land being made by the Native Lands Commission, which confirms their ownership.

It is also clear from the submission made by both parties that a right of usage existed for the benefit of the Yavusa Wairuku from which the Defendant Osea Dagaga belongs. It is also clear from the decision of the Native Land Commission of 31 March 2010 that there is a traditional link between the Yavusa’s or clans from which the parties belong. A link the Commissioner thinks should be strengthened not weakened. In my view ownership of Native Land and customary right of usage are disputes which fell within the ambit of section
16 of the Native Lands (NLA) Act . Cap. 133.

Section 16 (1) of the said act states:-

(1) In the event of any dispute arising the parties to which are Fijians in connection with land in a province or tikina in which the proprietorship of the Fijian owners has been ascertained by the Commission or in a province or tikina which it may be inconvenient or inexpedient for the Commission to visit without delay or in any other case when he may deem it expedient, the Minister may delegate a member of the Commission or some other proper person to inquire into the same.

Disputes regarding native land has come before the Civil Courts on numerous occasions and in all of them the Civil Courts have come to the conclusion that it does not have jurisdiction to hear disputes amongst native owners over ownership of native land. In the matter of Yavutu –v- Vunisa (2010) FJHC 18;HBC 318/08 (Lautoka) Justice Inoke states the position of the Court very clearly regarding the application of section 16(1) of the NLA Cap. 133 when he said at p3:-

"The parties here are Fijians. The proprietorship of the land in dispute has been determined by the Chairman of the Native Lands Commission. The dispute in this case relates to the conditions of the allotment of the blocks comprising the land but it is nevertheless a "dispute" within s16(1). That section requires that the Native Lands Commission or a delegate of it appointed by the Minister to enquire into it. This Court therefore has no jurisdiction".

In Namatua –v- Native Lands and Fisheries Commission (2005) FJCA 85 the three Honourable Judges of the Court of Appeal consistently referred to the provision of section 16 of the Native Lands Act as the only proviso to be used in resolving disputes between Fijians in a dispute regarding land. In par. 31 of the above decision the Court said:-

"In our view the originating summons is misconceived because the High Court has no Jurisdiction to deal with a dispute that may arise under s16 or an appeal to an Appeals Tribunal under section 7 of the NLA...."And again in par. 38 "...The fact remains that the real question in controversy between the parties remains unresolved as to the boundaries. The only lawful way to resolve this is for the 1st Respondent to determine the issue under s 16 of the NLA" .

It is clear from the above matters that any dispute regarding native land is a dispute that ought to be determined only by the Native Land’s Commission.

CONCLUSION

For the above reasons the originating summons is dismissed.

ORDERS

The Orders are therefore as follows:-

1. The Plaintiffs applications for vacant possession in both actions are dismissed.

2. I make no order as to costs.

DATE of RULING: 28 May 2010.

H ROBINSON
MASTER

AT LABASA.