Rabo v State [2010] FJHC 272; HBC415.2008 (26 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 415 OF 2008

BETWEEN:

KESONI RABO, MANASA RAVOTEA,
ERONI RUKUVAU, MOSESE VERENAMULUMU
CAKAU, ALIFERETI CAKACAKA, INIA
KEVETIBAU, KITIONE R CAKAU and SOLOMONE
D CAKAUNITABUA
PLAINTIFFS

AND:

THE STATE
FIRST DEFENDANT

AND:

NATIVE LAND TRUST BOARD
SECOND DEFENDANT

AND:

THE MATAQALI NAILAGOBOKOLA
THIRD DEFENDANT

AND:

THE NAUSORI TOWN COUNCIL
FOURTH DEFENDANT

Mr S Kumar for the Plaintiffs
Mr C Tuberi for First Defendant
Mr S Valenitabua for Third Defendant
Mr M Saneem for Fourth Defendant
No appearance for Second Defendant

DECISION

This is an application brought by the Plaintiff seeking an order that:

"... the determination of the rightful original owners be referred to the Native Land and Fisheries Commission since it is the specialised institution and custodian of Vola ni Kawa Bula and other records affecting land owing by the Native Fijians ...."

The application was made by summons dated 22 July 2009 and was supported by an affidavit sworn by Mosese Verenamulumu Cakau on 22 July 2009 and filed herein.

The First Defendant filed an answering affidavit sworn by Ilaitia Buadromo sworn on 14 September 2009. The Second Defendant also filed an answering affidavit sworn by Savenaca Ralagi on 31 August 2009. The Plaintiff filed a reply affidavit on 25 September 2009.

The application is made under order 36 Rule 2 of the High Court Rules. Order 36 Rule 2 states:

"2(1) In any cause or matter the Court may refer to the Registrar or to a specific referee (being the person nominated by the Court) for inquiry and report any question or issue of fact or mixed law and fact arising therein, and, unless the Court otherwise orders, further consideration of the cause or matter shall stand adjourned until the receipt of the report."

The issue that the Plaintiff is seeking to have referred to a specific referee is the determination of the rightful owners of the land that is identified in paragraph 7 of the Plaintiff’s Statement of Claim. The land in question is located in the Nausori area. The specific referee to whom the Plaintiff seeks to have that issue referred is the Native Lands and Fisheries Commission (the Commission).

It should be noted that whilst the Court may refer a particular issue or question to a specific referee, the Court remains seised of the matter. Pending receipt of the report, the proceedings are usually adjourned by the Court.

It was not disputed that the land in question is currently held as freehold land.

The application was concerned with the issue of jurisdiction and in particular whether the Commission could determine the ownership of land that is now freehold land.

The Plaintiff relied on section 4 of the Native Lands Act Cap 133 (the Act) which states:

"The Minister shall appoint a Native Lands Commission consisting of one or more commissioners, each of whom shall have the powers of the Commission, who shall be charged with the duty of ascertaining what lands in each province of Fiji are the rightful and hereditary property of native owners, whether of mataqali or in whatever manner or way or by whatever division or subdivision of the people the same may be held."

Counsel for the Plaintiff submitted that the words "ascertaining what lands in each province of Fiji are the rightful and hereditary property of native owners" were sufficiently wide and general to include land that is currently freehold land. It was submitted that as "lands" were not defined in section 2 of the Act, there was no impediment to giving the word its ordinary meaning.

The application was opposed by the First and Third Defendants on the basis that the proposed specific referee, the Commission, did not have any jurisdiction to decide the issue of true ownership of freehold land.

The third defendant opposed the application on the further ground that when the Act first came into effect in 1905 as an Ordinance, the land in question was not native land, but rather in 1880 was Crown Grant land that in 1889 became freehold land. Counsel submitted that the provisions of the Act do not apply to the land in question as it was not native land as at 1905.

It was submitted that the long title, section 3 and section 6 when read together lead to the conclusion that the Commission’s work is limited to native land.

The long title states: "An Act Relating to Native Lands"

Section 3 states:

"Native lands shall be held by native Fijians according to native custom as evidenced by usage and tradition. Subject to the provisions as hereinafter contained such lands may be cultivated, allotted and dealt with by native Fijians as amongst themselves according to their native customs and subject to any regulations made by the Fijian Affairs Board, and in the event of any dispute arising for legal decision in which the question of the tenure of land amongst native Fijians is relevant all Courts of law shall decide such disputes according to such regulations or native custom and usage which shall be ascertained as a matter of fact by the examination of witnesses capable of throwing light thereupon."

Section 6 (1) states:

The Commission shall institute inquiries into the title to all lands claimed by mataqali or other divisions or sub divisions of the people and shall describe in writing the boundaries and situation of such lands together with the names of the members of the respective communities claiming to be the owners thereof."

As the land the subject matter of this application is now freehold land and more correctly referred to as State freehold land, it cannot be said to be a dispute to determine ownership of lands claimed by Mataqali or divisions or subdivisions of the people (being native Fijians). The issue is between the current owner of the land, the State and the representatives of the mataqali Nakuita.

I am satisfied that the procedures that are provided for in the Act are for the purpose of enabling the Commission to determine ownership of native land claimed by mataqali or other divisions or subdivisions of native Fijians. Therefore the Commission cannot be availed for the purpose of determining the true ownership of State freehold land. It simply does not have jurisdiction to do so.

However paragraph 15 of the Plaintiff’s Statement of Claim states:

"15. That the Plaintiffs claim that they were the original land owner and/or the descendants of the original owners Komai Nausori and it was only lawful and proper that the land particularised above be returned to them".

Although pleaded at the end of the Statement of Claim, the assertion that the Plaintiffs (i.e. the Mataqali Nakuita) were the original owners is by necessity the first matter that the Plaintiffs would be required to establish. If the Plaintiffs cannot establish that the Mataqali Nakiuta was the traditional land owner then the claim for relief against the Defendants cannot succeed.

In its Defence the Third Defendant pleads to paragraph 15 of the Statement of Claim that:

14. The 3rd Defendant demands strict proof of the contents of paragraph 15 of the claim."

Although the Third Defendant does not claim original ownership of the land in question, the issue of traditional ownership of the land at the time when it was native land and claimed by the Mataqali Nakuita requires determination. That is an issue which in my judgment does fall within the jurisdiction of the Commission.

It is apparent from the affidavit material that the land the subject matter of this application was native land prior to the date upon which the Colonial Sugar Refining Company Limited acquired its interest in 1880.

Under those circumstances a reference to the Commission to provide the Court with a report as to its investigation concerning the identity of the land owning unit or units of the lands described in paragraph 7 of the Statement of Claim prior to 1880 does seem to be appropriate.

It is clear that such an inquiry will involve a prolonged examination of documents and local investigation that can more conveniently be conducted by the Commission. A report from the Commission is in the interest of all the parties on the grounds of economy and convenience.

However the Third Defendant submitted that the Act first came into operation as an Ordinance in 1905 when the land in question was no longer native land and therefore could not be subject to any inquiry or determination by the Commission. I do not consider that the presumption against the retrospective operation of legislation operates in the way that the Third Defendant claims. Although a piece of land may no longer be native land, it can be assumed that there may be an occasion when it will be of assistance to determine the identity of the native land owning unit or units up until the time when the land ceased to be native land. Such an inquiry is within the scope of the Commission’s functions.

The effect of the Third Defendant’s submission, if upheld, would be that the Commission could not ascertain the native owners of lands that were native lands but ceased to be native lands prior to 1905. I do not consider that to be the intention of the legislation.

It should also be noted that there was legislation in existence prior to 1905 in the form of an Ordinance that also dealt with native lands. This earlier legislation was discussed briefly by the Fiji Court of Appeal in Serupepeli Dakai No. 1 and Others –v- Native Land Development Corporation and Others [1977] FamCA 15; (1983) 29 FLR 92 at page 97:

"As far as the Court can ascertain the first Native Lands Ordinance was No. 21 of 1880. The Commissioners were charged with the duty of ascertaining the ownership of native lands although cases of dispute were referred for determination to the Bose-Turaga (Council of Chiefs) subject to appeal to the Governor-in-Council whose decision was final."

It is interesting to note that section 111 of the 1880 Ordinance provided:

"All native lands shall be inalienable from the native owners to any person not a native Fijian except through the Crown ...."

This provision which remained until the Native Lands Ordinance (No 21) of 1892 indicates that alienation to other Natives was lawful ...."

Furthermore there was reference to a Lands Commission in the case of Harman -v- Cudlip 1 FLR 11 decided in 1877.

It will be necessary for the Commission to determine, if it can, the identity of the native owners of the land in question and in doing so, consider any substantive provisions contained in the relevant Ordinance that was in effect in about 1880 when the Colonial Sugar Refining Company acquired its interest in the lands.

I therefore propose to grant the application and make the following orders in accordance with Order 36 of the High Court Rules:

1. That the question which mataqali or other division or subdivision of native Fijians had the customary right to occupy and use the native lands described in paragraph 2 of this Order prior to 1880 when the Colonial Sugar Refining Company Limited or any other person acquired an interest in the said land be referred to the Commission for inquiry and report.
   
2. The lands that are the subject matter of this reference are those set out in paragraph 7 of the Plaintiff’s Statement of Claim being:
   
   1. CG 349 – 265 acres under CT1120
   2. CG 118 – 193 acres under CT1120
   100. CG 642 – 500 acres under CT1116
   4. CG 228 – 93 acres under CT1119
   5. NG 108 – 500 acres under CT 121 & 122
   6. CG 356 – 650 acres under CT 1572.
      
3. Further proceeding in the action be stayed pending receipt by the Court of the report from the Commission.
   
4. Costs of the application be costs in the cause.
   

W D Calanchini
JUDGE

26 February 2010
At Suva