Davu v Rasuka [2010] FJHC 308; HBC148.2010L (12 August 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 148 of 2010L

BETWEEN:

AKUILA DAVU
representing MATAQALI RAKIRAKINATO
Plaintiffs

AND:

VENIASI RASUKA
representing MATAQALI KORO
Defendants

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr K Vuataki for the Plaintiffs
Mr S Nacolawa for the Defendants

Solicitors: Vuataki Law for the Plaintiffs
Nacolawa & Co for the Defendants

Date of Hearing: 12 August 2010
Date of Judgment: 12 August 2010

INTRODUCTION

[1] This is a dispute over a cave in the Yasawas. The cave is visited by tourists who are charged a fee. The Plaintiffs, Mataqali Rakirakinato, claim that they are the registered owners under the Native Lands Commission ("NLC") Register of Native Lands. The Defendant, who belongs to and represents the neighbouring Mataqali Koro disputes it, took control over the cave in July and started collecting money from the visiting tourists. To avoid confrontation, the Plaintiffs reported the matter to the Police but they were not very helpful. They told the Plaintiffs to obtain an injunction from this Court.

THE ORIGINATING SUMMONS

[2] The Plaintiffs filed their Originating Summons and Affidavit in Support on 2 August 2010 in which they claim that they are the members of Mataqali Rakirakinato. They are the current registered proprietor of native land known as Vola comprising 31 acres on Lot 28 on the island of Sawailau in Yasawa. On their land is a cave which is visited by tourists who pay to their Mataqali fees collected by one of their members until late July. The Defendant was seen on 26 July collecting cave fees from the tourists without permission. The matter was reported to the Police in Lautoka who came to the island on 28 July. They spoke to the Defendant and their Turaga ni Koro and left on the next day. After the Police left the Defendant went back to the cave and started collecting money from the tourists again. They rang the Police again and were told to get an injunction from the court, hence this action. The Originating Summons asks for an injunction restraining the Defendant from entering the land and the cave and costs.

INTERIM APPLICATIONS

[3] Filed together with the Originating Summons was an ex-parte motion for an interim injunction to restrain the Defendant from entering the land and the cave until final determination of the action. I directed that it be issued inter-partes for mention before me on 6 August 2010.

[4] When the application was called on 6 August 2010 the Defendant appeared in person. I explained to him the order being sought against him to which he said he opposed the application and asked for time to engage a lawyer. I also explained to him that the documents showed that the registered owners were the Plaintiffs and because Police was not willing to intervene in the face of threats of violence that I would stop both parties from going to the cave. I therefore ordered that both parties stay away from the cave and gave directions for the filing of affidavits and the hearing of the interim application on 12 August 2010. The other reason for ordering both parties to stay away from the cave was the hope that the parties would resolve their dispute amicably.

[5] The Defendant engaged Mr Nacolawa as his counsel who filed on 9 August 2010 his affidavit in reply to the Plaintiffs' application for interim injunction and his own application to strike out the Plaintiff's Originating Summons.

[6] When the matter was called on 12 August 2010 the dispute had not been settled. I asked Mr Nacolawa why an injunction should not issue against his client because the Register of Native Lands showed the Plaintiffs as the registered proprietor. He said that was correct but there was some error in the Register. His client was disputing the NLC record of ownership. He rightly conceded that it was a matter for the NLC to resolve such a dispute over its records and that this Court had no jurisdiction to deal with it. I therefore ordered that his client be restrained from going on to the Plaintiffs' land and cave until the final determination of this dispute. I also said I would publish my reasons which I now do.

JURISDICTION

[7] This Court clearly has jurisdiction in this case. It is an application to enforce the rights of a registered proprietor, albeit the registered proprietor being a native Fijian of native land. This is not a dispute between Fijians over native land falling within the provisions of the Native Lands Act [Cap 133] which is reserved exclusively for the NLC and the Appeals Tribunal under that Act; distinguish Namatua v Native Lands and Fisheries Commission [2005] FJCA 85; ABU0020.2004S (4 March 2005); State v Native Lands Appeals Tribunal [2009] FJHC 164; HBJ 2 of 2009L (14 August 2009); Naimila v Apisalome [2010] FJHC 156; HBC187.2009L (7 May 2010)

INTERIM INJUNCTION

[8] The issue in this case is where the balance of convenience lies. The record clearly shows that the Plaintiff Mataqali Rakirakinato is the registered proprietor of the land and the cave. The Defendants do not seem to dispute it. There are some outstanding issues between the two Mataqalis before the NLC but until they are resolved the record must stand. The effectiveness of the Register of Native Lands held by the NLC will be seriously undermined if this Court does not uphold it. As I have said the accuracy of the Register is a matter for determination by the NLC and Appeals Tribunal. Until they determine otherwise, this Court must accept it as accurate.

ORDERS

[9] These were the Orders that I made on 12 August 2010:

1. The interim order of 6 August 2010 is vacated.
   
2. Order as per paragraph (a) of the Plaintiff's motion filed on 2 August 2010, namely, that the Defendant be restrained by himself, his servants, agents or howsoever from entering native land known as Vola and the cave thereon being Lot 28 on the island of Sawailau in Yasawa until (the) hearing of the Originating Summons in this action.
   

100. Fourteen days for the Defendant to file and serve his affidavit in reply to the application to strike out.
     

4. Hearing of both applications and the substantive matter on 31 August 2010 at 10.00 am.
   

Sosefo Inoke
Judge