Davu v Rasuka [2010] FJHC 439; HBC148.2010L (22 September 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

FINAL 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: 31 August 2010
Date of Judgment: 22 September 2010

INTRODUCTION

[1] On 6 August 2010, on an application by the Plaintiffs, I made an interim order in which neither party was allowed to go to or take tourists to the cave the subject of this dispute. I also gave the Defendant, who was then not legally represented, time to obtain such representation if he wished and made directions for the filing of further affidavits. I adjourned the application for hearing inter-partes on 12 August 2010. The Defendant subsequently engaged the services of solicitors and counsel who filed an application on his behalf on 9 August 2010 to strike out the Plaintiff's claim. On 12 August 2010 I delivered a judgment in this matter in which I vacated my earlier order and instead allowed the Plaintiffs to use the cave and ordered the Defendant and the members of his landowning unit to stay away from the cave until further order.

[2] I also gave directions for the filing of further affidavits and for both the Defendants' strike out application and the Plaintiffs' substantive action be heard on 31 August 2010. This is my judgment following that hearing.

THE ORIGINATING SUMMONS

[3] 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.

REASONS FOR MY JUDGMENT OF 12 AUGUST 2010

[4] The reasons for granting my orders of 12 August 2010 are set out in paragraphs 7 and 8 of the judgment which were:

[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)

[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

THE APPLICATION TO STRIKE OUT FOR WANT OF JURISDICTION

[5] The Defendants application to strike out the Plaintiffs claim was made pursuant to O 18 r 18(1)(b) and (d) of the High Court Rules 1988, namely, that the Plaintiffs claim is scandalous, frivolous or vexatious; or it is otherwise an abuse of process, and under the Court's inherent jurisdiction.

[6] The application is supported by Mr Rasuaki's affidavit in which he says he was taken by surprise by this action because an action dealing with the same subject matter, HBC 72 of 2005L, was withdrawn only last month on 7 August 2010. Annexed to his affidavit was a copy of the Master's Order which was by consent the plaintiffs' claim and the defendants' counterclaim were withdrawn and the parties were to pursue the matter before the Native Lands and Fisheries Commission.

[7] Mr Rasuaki says the current Plaintiff is the son of the plaintiff in HBC 72 of 2005L. On 29 September 2008, the Defendants in that action filed a Summons for an order that this dispute be referred to the Native Lands Appeals Tribunal and for a stay of that action pending the Tribunal's determination. In June 2010, the dispute came before the former Chief Registrar for what appears to be mediation and resolution. Part of the agreed resolution was the opening of a joint trust account in the names of the solicitors into which the cave fees, which were to be collected by both parties, were to be paid. It is not clear how the moneys were to be kept and used so it is not surprising that the arrangement did not work. Mr Rasuaki complains that the whole exercise was a complete waste of everyone's time, money and effort.

[8] Mr Akuila Davu, the representative of the Plaintiffs, swore two affidavits to which he annexed a copy of the Register of Native Lands Volume 8 Folio 883 showing Mataqali Rakirakinato as the proprietary unit that owns Lot 28 being the land known as Vola comprising of 31 acres on which the cave is situated on the island of Sawailau in the Yasawas. He also attached a copy of a memorandum from the Chairman of the Native Lands Commission to the Registrar of Titles dated 4 February 1993 pursuant to s 10(2) of the Native Lands Act directing the Registrar to correct certain errors on the Register of Native Lands to show that the Plaintiffs are the correct owners of the land. The memorandum said: "The ownership of the above blocks of land were erroneously interchanged during preparation of plans and subsequent registration. Unfortunately, the amendment order cited at (c) above also contained erroneous information which only served to compound the confusion faced by the native owners of both blocks of land". This explained why Volume 8 Folio 883 had been amended by Mataqali Koro being crossed out and Mataqali Rakirakinato being written in as the landowning unit.

[9] He also annexed to his affidavit a copy of a letter (translated into English) from the Native Lands Commission dated 17 December 2009 to his solicitors which further explained ownership of the subject land as follows:

Dear Sir

SAWAILAU CAVE – CIVIL ACTION NO 72 OF 2008

Your letter on the above has been received and it has been thoroughly considered.

Direction is given that that it is clear from the information gathered by the Native Lands Commission in 1926 that the island of Sawailau is divided into two lots as the Mataqali Koro representative Manoa gave oath land known as Sawailau (NLC 180) is bounded on the island of Sawailau. The second lot of land Vola (NLC 244) belongs to Mataqali Rakirakinato and is bounded from Tamusua land (including the island of Tamusua which has its boundary at NLC 244 on the island of Sawailau). This oath has not been disputed and is final.

But that decision was not fully followed when the land was surveyed to confirm on the Register of Native Lands (RNL). In 1979 the Native Lands Commission sat again at Nabukeru to confirm forever the division of land sworn on oath in 1926 and the representatives were Filipe Sadrugu (Rakirakinato) and Samisoni Tavaiqia (Koro) and they confirmed that the land Vola is facing Nabukeru and belongs to Rakirakinato and the side facing Lautoka is land Sawailau and belongs to Koro. This statement was confirmed by the Chairman Native Lands Commission in 1982 and its proof is on the RNL (and annexed).

[10] Also annexed to one of Mr Davu's affidavits was a letter (translation from Fijian to English) from the Ba Provincial Council dated 23 June 1998 to the Defendants which said:

Information has been received in this office that the caves at Sawailau has been closed to members of your Mataqali.

This office is concerned with protection of living together as relatives in our village. These are the clear facts of the island of Sawailau.

1. The previous Roko had written on the ownership of the soil on the 1/06/1988 and corrected by the Native Lands Commission in the year 1993. This is to follow the Decision of the enquiry at Nabukeru Yasawa in 1997 concerning the above (subject).
   
2. In that enquiry in 1979 it is clear that ownership of the land owned by the two Mataqalis Rakirakinato in the Yavusa Natubasa and Mataqali Koro in the Yavusa Tamasua was changed.
   
3. Therefore the previous Roko had written the right ownership of land that Mataqali Rakirakinato should onw Lot 28, a total of 31 acres of land. And Lot 29, comprising a total of 126 acres belongs to Mataqali Koro.
   

These two Mataqalis ... both own today the Island of Sawailau in their respective lots as set out above.

[11] The Defendants did not give up because on 10 December 2001, they wrote to the Ministry of Fijian Affairs requesting the ownership of the land and the cave be relooked at by the NLC. The Chairman of the NLC replied on 21 December 2001 as follows:

I am instructed to tell you Sirs that your letter of 10/12/2001 concerning the above topic has been received.

We wish to inform you the Native Lands Commission has already carried out its enquiry into ownership of the island of Sawailau and it has also been corrected.

The correction made is confirmed and cannot be changed.

It is hoped you will receive the information explained above in a humble spirit.

[12] Again the Defendants did not receive the explanation humbly as suggested because the Ba Provincial Council had to write again on 5 October 2004 to confirm that Mataqali Rakirakinato owned Lot 28 on which the cave was located.

[13] Mr Veniasi Rasuaki in reply says that everyone is mistaken except him and the Defendants. He says the NLC acted fraudulently in amending the Register. They want this matter to go back to the NLC and the Appeals Tribunal under the provisions of the Native Lands Act [Cap 133].

CONSIDERATION OF THE DEFENDANTS APPLICATION

[14] Having considered the new affidavit material and counsels submissions I am still not convinced that this Court does not have jurisdiction. As I said in my judgment of 12 August 2010 this is an application to enforce the rights of a registered proprietor, albeit the registered proprietor being a native Fijian of native land. It is not a dispute between Fijians over native land falling within the provisions of the Native Lands Act [Cap 133] 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).

[15] Counsel for the Defendants submitted that this was a dispute under ss 5 and 16 of the Native Lands Act. Section 5 of the Act provides that the Roko shall ex officio be a member of the NLC and s 16 provides:

Settlement of disputes between Fijians in special cases

16.–(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.

Assessors

(2) It shall be lawful for the Minister to appoint one or more persons being native Fijians to sit as assessor or assessors with the commissioner appointed as aforesaid.

Powers of special lands commissioner

(3) For the purpose of holding an inquiry under subsection (1), the commissioner shall have the same powers as those vested in the Commission and shall follow the same procedure as is laid down for the Commission in inquiries.

Proceedings to be in writing

(4) During such inquiry the commissioner shall take or cause to be taken a full account in writing of all proceedings and of the evidence.

Parties to be informed of decision

(5) On the conclusion of any inquiry held under subsection (1) the commissioner holding it shall inform the parties interested of his decision and shall transmit a copy of his decision to the scribe of the province in which the land is situate and such decision shall be publicly read at the next meeting of the provincial council.

[16] It is clear to me that this is not a dispute within s 16. It is a dispute between the Defendants and the NLC. The NLC made its decision in 1926. It was corrected in 1993 under s 10(2) of the Act which gives the Commission power to do so. This Court cannot interfere with that decision. That is the principle in the Court of Appeal decision in Namatua v Native Lands and Fisheries Commission [2005] FJCA 85; ABU0020.2004S (4 March 2005) by which I am bound.

[17] Under s 6(5) of the Act, only the NLC has the power to hear disputes between Fijians on ownership of native land. Once that decision is made the aggrieved party can appeal to the Appeals Tribunal which he must do within 90 days under s 7(2). If no appeal is lodged then the decision of the NLC is final under s 7(4).

PERMANENT INJUNCTION

[18] As I said in my earlier judgment, the effectiveness of the Register of Native Lands held by the NLC will be seriously undermined if this Court does not uphold it. 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.

[19] I do not accept the submission by counsel for the Defendants that this is not an appropriate case to be decided by way of Originating Summons. The documentary evidence is not seriously disputed or at all and the Defendants have not shown why the relevant facts in this case should be in dispute.

[20] The Defendants have not shown that the NLC had acted outside its power under the Native Lands Act. I am satisfied that the Plaintiffs have made out a case for a permanent injunction and therefore order accordingly.

COSTS

[21] I make no order as to costs as in other cases of a similar nature.

ORDERS

[22] The Orders are as follows:

1. The Defendants' application to strike out the Plaintiffs' claim is dismissed.
   
2. The Defendants, their servants and agents are restrained from entering into or otherwise interfering with the quiet enjoyment of the Plaintiffs native land known as Vola being Lot 28 on the island of Sawailau in Yasawa and the cave thereon.
   

100. There is no order as to costs.
     

Sosefo Inoke
Judge