Malua v Naliva [2010] FJHC 327; HBC032.2010 (20 May 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 032 of 2010

BETWEEN:

SAMUELA MALUA of Korovuto, Nadi, Farmer for
and on behalf of Tokatoka Nalevaka and its members.
1st Plaintiffs

AND:

VILITATI MOMO of Korovuto, Nadi, Farmer for and
on behalf of Tokatoka Sautorotoro and its members.
2nd Plaintiffs

AND:

JOELI NALIVA and JOSEVATA LOTAWA of
Yavusania Village, Nadi sued on their own behalf and on behalf of Tokatoka
Vunaivibubu and Nawasakubu and Josevata Taliga.
1st Defendants

AND:

JOSEFATA TALIGA of Yavusania, Nadi, Retired.
2nd Defendants

AND:

NATIVE LAND TRUST BOARD
a statutory body incorporated under the
provisions of the Native Land Trust Act.
Nominal Defendant

Counsel appearing:
Vuataki Law for the 1st & 2nd Plaintiffs
Josevata Lotawa for the 1st Defendant
Esesimarm & Co for the 2nd Defendant

Date of Hearing: 29 April 2010
Date of Judgment: 20 May 2010

INTERLOCUTORY JUDGMENT

[1] On 29 April 2010, another case, which was due to be taken up for hearing, was vacated and the application for interlocutory injunction in this matter was urged by parties to be taken up.

[2] The dispute in this case has arisen in respect of the succession to the titular positions (Headship) within the Yavusa Leweivulani, a secular indigenous group in Fiji.

[3] It appears to be the indigenous view that the Legislature has left the selection of Headships to the Native Lands Commission, by section 17 of the Native Lands Act and not subject to review. Vide- Judgment of his Lordship Judge Inoke in- JOSUA NAIMILA and EPELI BUKADOGO –vs- ROGOLEA APISALOME,NLTB, Permanent Secretary Lands and A.G- Civil Action No: HBC 187 of 2009L.

[4] Section 17 of the Native Lands Act states;

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.

[5] Section 7(5) of the same Act states; "...Decisions of the Appeals Tribunal are to be final and conclusive and cannot be challenged in a court of law" 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."

[6] When there is a grievance it is not the tradition of a Court of Law to turn a blind eye, or pass the responsibility, though the legislature by mandatory provisions might compel the court to allow a statutorily prescribed remedy before another forum to be activated instead. It is also the function of a judge to give life to the dead letter of the law in a strong case.

[7] In Satala –vs- Bouwalu 2008] FJSC 20; CBV0005.2006S (13 October 2008) their Lordships stated;

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- vs- 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."

{Julius v Lord Bishop of Oxford-(1880) 5 App Cas 214}*

[8] Even if the claimant to the particular headship or title is before court still he would only have a claim to such a right and does not have a private right he can allege is about to be trespassed, to seek injunctive relief.

[9] In maintaining tribal peace and co-existence, those fore fathers by experience, may well have balanced, extensive land ownership with strategic location ownership, brawn with brains and force with strategy or may well have left succession to evolve by itself.

[10] I assume that the customs, traditions and procedure as well as exceptions to them are recorded in the archives of the Native Lands Commission, and the expertise to weave through the nuances therein lies in the hands of the said Commission.

[11] After the death of the previous (also disputed) incumbent on 13 November 2009, there appears to be three traditional positions vacant according to the plaintiffs;

a). Turaga ni Tokatoka Nalevaka

b). Turaga ni Mataqali Nalevaka and,

c). Turaga ni Yavusa Nalevaka (Turaga ni Yavusa Leweivulani?)

[12] The plaintiffs concede that the installation of the selected candidate is done traditionally by the presentation of the installation cup by the Tokatoka Nawasakubu and Tokatoka Sautorotoro. Therefore it is admitted that at least according to the plaintiffs the Tokatoka Nalevaka (i.e. the 1st plaintiffs) has no authority in respect of the installation.

[13] The defendants through the 1st named defendant states that the headship of Turaga ni Yavusa vests in the head of Tokatoka Vunaivibubu of the Mataqali Nalevaka, and following such custom and tradition three members of Tokatoka Vunaivibubu have been previously installed as Turaga ni Yavusa. The three such incumbents were;

1. Eveli Turuva,
   
2. Eveli Turuva III, and
   

100. Nemani Momo.
     

[14] The said defendant further admits that there is consultation between Tokatoka Nawasakubu and Tokatoka Nasautorotoro in respect of the installation. I assume the Tokatoka Nasautorotoro and Tokatoka Sautorotoro refer to one and the same. If so there is at least no dispute as to who the "king makers" are between the parties.

[15] Though it has been the norm for "king makers" not to invest themselves or to be king, history recent and ancient is replete with exceptions.

[16] The bone of contention so to speak between parties appears to be the 25% of the lease rental paid to the holder of the said titular positions, and the disparity of the land owned by the contesting factions.

[17] The Native Land Trust Board (NLTB) in its statement of claim authoritatively states that Tokatoka Nalevaka owns 798 acres (more or less) and Tokatoka Sautorotoro owns 273 acres (more or less). That is the plaintiffs, if properly represented owns together 1071 acres (more or less).

[18] However the land ownership of the defendants are not disclosed except for the claim by the plaintiffs that they own about ½ an acre.

[19] The 1st named plaintiff states that his Tokatoka has an annual lease income of $50,000.00 and the 2nd named plaintiff states that his Tokatoka has an annual lease income of $100,000.00, in giving their undertaking to damages.

[20] The NLTB states that of the lease, income10% is distributed to the Turaga ni Yavusa and 15% is distributed to the Turaga ni Mataqali.

[21] In this case the plaintiffs have chosen their candidate Samisoni Raidriwa No.2, on 14 January 2010 for the three traditional positions, while the defendants have selected the 2nd defendant Josefata Taliga to those positions on the 23 of February 2010.

[22] On being questioned by court counsel for the plaintiff conceded that the 2nd defendant has now been "selected" as the "chief" (Turaga), and as it is being challenged, it is for the Native Lands Commission to either reject or confirm him after an inquiry. As such the injunction sought at prayer (a) to the amended statement of claim of the plaintiff is now belated and as such not obtainable. Of course, the plaintiffs' choice of candidate still lacks formal installation.

[23] The plaintiff is seeking to restrain the Native Lands Trust Board from paying the lease component payable to the 2nd defendant by injunction. The plaintiff's position is that the injunction inter –partes if not issued would result in the NLTB paying the 2nd defendant Josefata Taliga the 25% of the lease rental.

[24] However the 2nd defendant Josefata Taliga in his affidavit swears and also attaches a letter written confirming his willingness for the matter to be inquired in to by the Native Lands Commission and till then not to receive any payments. There is no provision brought to the notice of court that upon installation the NLTB shall make payment to the 2nd defendant.

[25] The nominal defendant against whom the injunction is sought, the Native Lands Trust Board in its Statement of defense at paragraph 15 states; "that it (NLTB) only releases lease monies after proper verification and authorization is obtained from the Native Lands Commission and monies are then distributed / released accordingly upon confirmation from the latter".

[26] Therefore the anxiety of the plaintiffs ought to be rested. On being questioned by court the plaintiffs counsel admitted that no allegation is made that the defendants will take the lease payments and leave the country.

[27] Further more the Native Lands Commission and the plaintiffs Candidate Samisoni Raidriwa No.2, is not made party to this action, and as such in any event this court cannot adjudicate on whether the plaintiffs candidate ought to be the Turaga, or that money is payable to him instead of another, as the plaintiffs personally make no claim to it.

[28] Though it may not harm the defendants in issuing the injunction in prayer (b) to the amended statement of claim of the plaintiff, still, it could prevent proceedings commencing before the Native Lands Commission on the ground that the dispute between parties is sub-judice (before court). As the substantive relief for the parties lie before the Native Lands Commission the plaintiff ought to withdraw this action and make representations to the Native Lands Commission.

[29] As such on a balance of convenience, or rather, in this case on a balance of sense, there is no urgency or need for the second injunction for the purpose it is sought, by the plaintiff.

[30] As such the plaintiffs application for injunction even fall short of the need to consider in detail the elements as set out in the American Cyanamid Co. vs. Erthicon Ltd-(1975) [1975] UKHL 1; 1 All ER 504, case.

[31] There is however, the urgent need disclosed by an action such as this that the intervention of the Native Lands Commission on a pre-emptive roll may be desirable, as grievances need to be aired before they fester.

[32] As such for the aforesaid reasons I, dismiss the plaintiffs application for inter -parties injunctions.

[33] Parties to bear their costs.

[34] Compliance under order 15, rule 13, 14 and the application of the dicta in Mesulame Narawa, Raitube Matanabua –vs- NLTB & Ors, (2002) ABU 0012/99S (apf HBC 232/95S, as well as whether the 1st defendant can sue on behalf of Josevata Taliga are matters that may make the sustainability of this action as presently constituted irregular, and as such a matter for the plaintiffs' to consider.

[34] This case to be mentioned on 20 May 2010, to deliver this judgment and to ascertain plaintiffs' intention to continue with this action.

Y I Fernando
JUDGE

At Lautoka
20 May 2010