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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Judicial Review HBJ No. 002 of 2010
IN THE MATTER
of an Application for leave to Apply for Judicial Review
pursuant to Order 53 Rule 3, High Court Rules 1988.
AND IN THE MATTER
of the Native Lands Act.
AND IN THE MATTER
of a decision of the Native Land Commission dated 5th November 2009.
BETWEEN:
THE STATE
AND:
NATIVE LAND COMMISSION
a body duly constituted under the Native Lands Act.
RESPONDENT
EX-PARTE :
TANIELA VARO NAIKA of
Narokorokoyawa, Sabeto, Turaga ni Mataqali for and on behalf of Mataqali Drakoro.
APPLICANT
Judgment of : Ms. Dias Wickramasinghe J.
Counsel : Mr Kitione Vuataki for the Applicant
Mr Robert Green for the Respondent.
Solicitors: Vuataki Laws for the Applicant
Attorney-Generals office for the Respondent
Date of Hearing : 21/10/2010
Date of Judgment : 08/12/2010
INTRODUCTION
[1] The Applicant seeks leave for judicial review of a decision of the Native Lands Commission dated the 5th November, 2009. Applicant is the Turaga ni Mataqali of Mataqali Drakora, which consist of two Tokatokas; Betosewa and Nabousakiki. The matter arises out of a registration of the name of Ilami Mali in the Vola Ni Kawa Bula (VKB-Native Lands Register)[1] in the Tokatoka Nabousakiki.
[2] When the matter was mentioned on 23rd August 2010 the then presiding Judge requested the parties to address court whether the High Court has jurisdiction to determine this application. As held in the case of Nava v Native Lands Commission [1994] FJCA 34; Abu055j.93s (11th November 1994); a court can intervene and raise the issue of jurisdiction even if the parties failed to do so. As held by Inoke J. in the cases of State v Native Lands Appeal Board HCJ 2 of 2009L (14 August 2009) and Kavekini Varo and Apisai Seqatura v Iliaseri Varo & others NLTB & ANZ HBC 234 of 2008 if the court does not have jurisdiction to determine a matter, then the court has no power to grant leave. I respectively agree with this view of Inoke J. It is in this context that the issue of jurisdiction has to be determined as a preliminary matter by this court.
[3] Section 3 of the Native Lands Act stipulates that Native Lands should be held by native Fijians according to native customs as evidenced by usage and tradition. It has been time and again held that the High Court has no jurisdiction to determine any mater arising out of customs and traditions of Fijian native lands. The basis for the above conclusions in the words of His Lordship Tuivaga CJ in the case of Bulou Eta Kacalaini Vosailagi v Native Lands Commission [1989] FJHC 53 is as follows:
'Fijian custom and tradition has its own in-built method of resolving even the hardest of disputes. It is called the "vei sorosorovi" and is invoked in order to restore peace and harmony to village life and in a larger context to the life of the vanua. It of course requires a huge helping of magnanimity wisdom and understanding. It is only when Fijian custom and tradition is ignored or gives way to expediency that disputatious situation will arise in Fijian society'.
[4] The powers and duties of the Native Lands Commission, its historical legislative development, and the legislatures intervention identifying the native Fijian customs and traditions were comprehensively dealt with by Inoke J., in the case of State v Native Lands Appeal Board [2009] FJHC 164;HBJ 2 of 2009L (14 August 2009- the 'Tui Vitogo' case).
[5] The Natives Lands Commission is a legal entity created by the Native Lands Act (cap 133 Rev 1985), charged with duties of identifying native lands in each province, its rightful hereditary owners and maintaining the 'Native Lands Register'. Commission is also endowed with special powers to enquire into disputes of ownership (section 6), and headship of Fijian people (section 17). Section 16 empowers the Minister to delegate a member of the Commission or any other to inquire into disputes arising between Fijians in connection with land where the Commission has ascertained the proprietorship of the Fijian land owners. All decisions of the Commission made under section 6, 16 and 17 are appealable to the Appeals Tribunal in terms of Section 7 of the Act, and decisions of the Appeals Tribunal are final and conclusive and cannot be challenged in a court of law as stated in section 7(5).
[6] A court reviewing a decision relating to native land can only determine whether the Native Land Commission has duly followed the process in accordance with the law when it arrived at its decision. Whilst respectfully adopting the views of Thuraga CJ on this point, I specifially quote the following from the case of Bulou Eta Kacalaini Vosailagi v Native Lands Commission [1989] FJHC 53:
'At this point it should be made clear that this Court has no jurisdiction to decide the merits of the, Na Ka Levu dispute. The Court has no function in that regard. The Court's function is to ensure that the process by which the Commission arrived at its decision in the inquiry under Section 17(1) of the Act was done in accordance with the law. In other words, it is the decision-making process of the Commission as a statutory tribunal which is under review by this Court and not the merits of the decision itself'.
[7] Having heard both counsel of the instant application, I ordered the State to file Affidavit-in- Response to assist me to determine whether there is a breach of the decision-making process by the Native Lands Commission when entering the name of Ilami Mali in the VKB in order for me to determine whether I have jurisdiction to determine this matter. On the direction of the court, parties also filed written submissions with many authorities.
[8] Counsel for the Respondent strenuously argued that the matters relating to registration in the VKB does not fall under sections 6,16 or 17 of the Natives Lands Act and a decision made by the Commission under section 10 (2) is independent of the provisions contained in sections 6, 16 and 17 of the Act. The State Counsel appearing for the Native Lands Commission contended that the registration of the names in the VKB under sections 6, 9 and 10 (2) thereof are matters relating to Fijians and 'in connection with land', hence, falls within the ambit of section 16 of the Native Lands Act. The State Counsel therefore argued that the jurisdiction of the High Court is ousted under section 7(5) of the Native Lands Act and cited several authorities in support including Fiji Public Services Association v Fiji and Telecommunications Ltd [1990] FJHC 85; [1990] 36 FLR (28 September 1990).
[9] Briefly, the facts before me are as follows:
(a) It is common ground that Ilami Mali is illegitimate, and was first written into the VKB of the mother's Tokatoka Taladrau, Mataqali Lumuni, Yavusa Conua in the village of Koroyaca, District of Sabeto, Ba. The documents before me does not show when the said entry to the mother's VKB was made.
(b) Vide exhibit "TVN4" Ilami Mali was registered twice in the Vola Ni Kawa Bula (VKB);
- First; under his mother Ane Naqani in Totatoka Taladrau, Mataqali Lumuni, Yavusa Conua the Village of Koroyace, District of Sabeto, Province of Ba on the basis that Ilami Mali is illegitimate and his father was unknown.
- Second; under his father; Simeli Tubaleima in the Tokatoka Nabousakiki, Mataqali Drakora, Yavusa Nasara in the village of Narokorokoyawa, District of Sabeto, Province of Ba on the basis of a registration based a decision made in 19/12/1991.
[10] The Commission, consequent to the decision stated in letter of 17/12/2001 to the Roko Tui Ba, removed the name of Ilami Mali from his father's Tokatoka, on the basis that the decision of 19/12/1991 had been predominantly to deregister those members who have died but their names still remains in the VKB and also to register those members of the Mataqali who have not been registered. (vide Exhibit TVN4). Accordingly, the name of Ilami Mali was removed from the VKB of Tokatoka Nabousakiki, Mataqali Drakora, Yavusa Nasara in the village of Narokorokoyawa, District of Sabeto, Provinse of Ba as per the letter of 31st October 2007 sent by Roko Tui Ba and was reconfirmed in his mother's Tokatoka. (vide Exhibit TVN5). The English translation of the letter state the basis for its decision which reads as follows:
'The fact that that his re-registration in the VKB in 1991 was wrong and also the need to comply with S10 (2) Native Land Act Cap 133, I have decided the following:
[11] It appears that the Commission's decision of 17th December 2001 (Exhibit "TVN4") was communicated to the parties only by letter dated 31st October 2007 as envisaged in Exhibit "TVN5". The reason for the delay is not evident from the documents before me, nor has it been explained by the parties.
[12] The Commission, 13 days thereafter, by its letter of 13th November 2007, advised the Roko Tui Ba, that the Native Land Commission has decided to remove the name of Ilami Mali from her mother's Tokatoka Nabousakiki, Mataqali Drakora, Yavusa Nasara in the village of Narokorokoyawa and transfer him to his father's Tokatoka Nabousakiki, Mataqali Drakora, Yavusa Nasara in the village of Narokorokoyawa. The letter further confirms that the basis of transfer in its English translation is as follows.
"This transfer is based on the power of the certificate of birth RG 1145/89 and all the information received from the vanua concerning the traditional protocol of approach from Mataqali Lumuni and their reception from ANE NAQANI the mothers (sic) side. It is also confirmed that in all that information that their bringing him traditionally by the mothers (sic) relative in Mataqali Lumini to Members of Mataqali DRAKORO".
[13] Thereafter, Roko Tui of Ba by his letter of 21st October 2009, requested the Native Land Commission to reconsider its decision, due to a grievance received by him from Tokatoka Nabousakiki, Mataqali Drakora, Yavusa Nasara of Sabeto. The said letter stipulates the history of registration of the Ilami Mali in the VKB. The excerpts of the English translation of the said letter are reproduced as follows due to its significance. (vide Exhibit "TVN15")
'This office has received the grievance of the above Mataqali concerning the re-entry of Ilami Mali into Tokatoka Nabousakiki after the confirmation that he be written to his mother.
By copy of your letter dated 17/12/2001 NLC 3/2-28A, the decision had been given that Ilami Mali be confirmed to his mother since he was written there twice.
Your second letter dated 13/11/2007 NLC: 3/2/28A, you again gave a decision to change your above decision outside of the knowledge of the Mataqali, despite this office confirming his being removed from Tokatoka Nabousakiki dated 30/10/07 based on your above letter.
The members of the Mataqali deny the traditional protocol stated in your letter which has caused us to receive their grievance.
I am sending all correspondence that was carried out and the sworn oath of Ilami Mali's mother Ane Naqani that his father is not known.
We are asking for a reconsideration of the change that was made and that some light is shed upon its confirmation'.
[14] The Native Lands Commission then wrote the letter dated 5th November, 2009, (Exhibit "TVN 17") reconfirming their decision of 29th August 2006 to register Ilami Mali in his father's Tokatoka. It is from this decision the applicant is seeking redress from this court. The English translation of the said letter which reads as follows gives the following reasoning of its decision.
'The DECISION of the Native Land Commission of 29/8/2006 that Ilami Mali be confirmed to his father Isimeli Tubelima his real father of Yavusa Nasara, Mataqali Drakoro, Tokatoka Nabousakiki in Narokorokoyawa Village in the District of Sabeto. This confirmation is based on the fact that it is in accordance with the principles of entry into the Book of Living Descendants.
The Native Land Commission remembers to the Provincial Office that the Turaga ni Mataqali and Ilami Mali be visited that they are of the same blood and they be advised that they love each other and care for each other. Be it confirmed to the Turaga of the Mataqali that it is difficult to deny the child because the parents have given evidence that it is their child'.
LEGAL MATRIX
[15] Section 8 of the Native Lands Act requires the Commission to maintain a 'Register of Native Lands' (VKB), whereas section 9 of the Act[2] requires the Commission to record the names of the persons comprising the proprietary unit of the native land in the VKB, where the Commission had decided ownership of the Fijian lands.
[16] Section 21 of the Native Lands Act permits the inclusion of the names of illegitimate children in the VKB of either of the mothers or of the fathers as seemed just and equitable.
[17] Section 10 (1) requires the Commission to transmit the register to the Registrar of Titles to preserve the 'Native Land Register' and section 10 (2) empowers the Commission to Order the Registrar to correct, add or delete the names during eventualities stated therein.
[18] It is in this "Native Land Register" referred to as VKB- Vola Ni Kawa Bula that the Commission has been making Orders one after another registering, deregistering and reregistering the name of Ilami Mali between mother's Tokatoka and father's Tokatoka.
[19] For convenience of consideration let me reproduce section 10(2) of the Native Lands Act which reads as follows:
"10(2) When it is found that an error has been made in the preparation of such register or that any Fijian has been recorded and registered in any proprietary unit other than the proper unit or that the name of any Fijian has been inadvertently omitted from the register recording the proper unit of such Fijian, it shall be lawful for the Registrar of Titles on the receipt of an order under the hand of the chairman of the Native Lands Commission to correct the same or delete or add the names of such persons as the case may be".
[20] According to the aforesaid section, the 'Native Lands Register' could be amended on three occurrences, viz:
- In the event of an error;
- If a Fijian has been recorded and registered in a different unit than the proper unit; and
- If a Fijian is inadvertently omitted from the Register.
[21] On 30 September 1926, the then Governor of Fiji, Eyre Hutson, has made an Order under reference MP 4089/26; 'Instructions as to entries in the Register of Native Lands Owners' which is attached as Exhibit 1 to the Respondent's Affidavit in Response. Despite a query by the court the State was unable to inform whether this Order was published in the gazette.
[22] The following paragraphs of the Governor's Order are of significance to determine the issue before me. I have thus reproduce them:
INSTRUCTIONS AS TO ENTRIES IN THE REGISTER OF NATIVE LANDOWNERS
3. Entries to be made in this Register can only be taken from the Register of Births and Deaths of the particular province to which this Register relates and from no other source whatsoever.
6. Children of illegitimate birth should be entered in their father's tokatoka and the letter B set against their names in the column headed "Veika tale eso". To further distinguish this class of entry the names should be enclosed within the red brackets,thus "(Tomasi Madigi)."
7. In cases where the father's name is unknown they should be entered in the mother's tokatoka marked B and, in the column headed "Tamana." The words father not known or the Fijian equivalent written.
10. The Provincial Commissioner or Roko Tui, as the case may be, should inspect the Register at regular intervals of not less than three months and satisfy himself that all entries made are supported by corresponding entries in the Birth and Death Registers. He should sign and date the form provided for this purpose on the first page of the register.
13. If these instructions are carefully followed it will at once be apparent that only the names of (a) the legitimate issue of the persons recorded by the Native Lands Commission entitled to share in the ownership of the lands of the proprietary unit to which they belong and (b) the illegitimate who are subject to the provisions of section 33 of Ordinance No 1 of 1905 will be added to this Register.
ORDER BY HIS EXCELLENCY THE GOVERNOR
These instructions for the keeping of accurate records in the Registers of Native Landowners have been carefully drawn up by the Chairman, Native Lands Commission. They should be printed in English and Fijian and bound with each volume.
These Registers are an invaluable part of the work of the Native Lands Commission, but they must be kept up to date with the greatest accuracy to retain their value as a record of the landowners and their estates.
Provincial Commissioners and Rokos are enjoined to accept and give effect thoroughly and regularly to their duty in this respect.
[23] A careful consideration of the aforesaid Order of the Governor, at paragraph 3 envisages that the 'foundation' of the registration in the VKB is based on the information maintained in the Register of Births and Deaths and prohibits obtaining information from any other source whatsoever for its registration.
[24] Paragraph 6 and Paragraph 7 stipulate the manner in which the children of illegitimate birth should be registered when the father is known or unknown. When father is known the illegitimate child should be registered under the father's Tokatoka whereas when father is unknown then the registration should be done in mother's Tokatoka.
[25] This court should therefore examine whether the Commission has followed their own instructions stated above which was filed by them in this case, when they registered Ilami Mali in the VKB.
[26] It is admitted that Ilami Mali was first registered in the mothers Tokatoka on the basis that his father was unknown. The applicant has provided two birth certificate of Ilami Mali. One at Exhibit "TVN1" containing registration no 1145 and another at Exhibit "TVN2" containing registration no 914. The Respondent in this affidavit in Response had also filed the Birth Certificate of Ilami Mali as Exhibit 2, which is identical to the applicant's Exhibit "TVN2" containing Registration No 914.
[27] Neither the Applicant nor the Respondent has given an explanation as to how Ilami Mali could have two birth certificates. The affidavit in Response only speaks of the second birth certificate despite Birth Certificate No 1145 has been produced in the affidavit in support. The two birth certificates have two registration numbers. Whilst one birth certificate discloses father's name as unknown, the other states the father is 'Isimeli Tubaielima'. It is not evident from Birth Certificate no 914 whether the inclusion of the father was a result of a subsequent amendment. It is also pertinent to mention that Birth Certificate No 1145 has been issued pursuant to an affidavit of the mother Ane Naqani sworn on the 9th of August 1998 where she affirms the date of birth of Ilami Mali's as 4th September 1971 and the father's name and age had been left blank. The first registration of the birth had been carried out 17 years after the birth.
[28] The Birth Certificate No 914 which discloses the father's name, is an extract taken on 12th August 2008, approximately 10 years after the first birth certificate was issued.
[29] The Respondent's affidavit dated 30th September 2010, at paragraph 8 avers that Ilami Mali's mother, Ane Naqani had confirmed at a proceedings that the father of Ilami Mali; Isimeli Tubaelima and one Paulisi Natini had traditionally approached her family when Ilami Mali was just 4 days old and had requested her to enter Ilami Mali in the father's tokatoka. I have also been provided with an English translation of the inquiry proceedings conducted by the Native Lands Commission attached as annex 3 to the affidavit in Response by the State. The proceedings do not contain a date or details as to who had conducted the proceedings. It does not contain the provision of the law under which the inquiry is conducted. It does not state the reasons for its decision.
[30] It appears, on a careful reading of the inquiry proceedings, that the Commission has not considered or has not been mindful of the two birth certificates. The father of Ilami Lami has not given evidence at the inquiry. The father's name has been disclosed by the mother, Ane Naqani where she informed the Commission that when Mali was four nights old Pauliasi Natiri along with his father and other members of the Tokatoka carried out the i lakovi and his father is Isimeli Tubeilima. The Commission had even at that point not clarified why she had sworn an affidavit 10 years later, that her child's father's name and age as unknown, if an i lakovi was carried out after 4 nights in the presence of the father of Ilami Mali, as stated by her at the inquiry. Further the Commission proceeding does not discloses whether it had considered the accuracy of the birth certificates or the reason for its variance. I therefore conclude that there is an error on the face of the record upon which the Commission has directed itself in arriving at its decision.
[31] On a consideration of the Native Lands Act in toto it is evident that the purpose of maintaining the register is to determine the boundaries, ownership of land and its rightful succession. In order to achieve these objects the 'Native Lands Register' is maintained. The maintenance of the register is a statutory obligation. The Commission could register the name of Ilami Mali only on the strength of his birth certificate. The said registration should be in compliance with Section 10(2) read with Sections 8, 9 and 21 of the Natives Lands Act and the Order made by the then Governor in 1926. It is evident from the statutory provisions that Fiji customary or traditional formalities cannot be considered when registrations are carried out in the VKB.
[32] As stated above, the VKB is used to find the rightful owners of the proprietary unit of the native lands. I am unable to agree with the argument advanced by the State that registration in the VKB extends to mean 'in connection with native lands' thereby falls within the ambit of section 16 of the Native Lands Act. Instead, in my mind, the Native land Register is an 'independent tool' used as aid by the Commission to discharge its duties.
[33] I therefore conclude that for the foregoing reasons, this court has jurisdiction to review the decision of the Commission dated 5th November 2009, (Exhibit TVN 17), subject to leave been granted.
[34] I also think that there are issues, as submitted by Mr Vuataki: (1) that the NLC is bond by the doctrine of res judicata/ issue of estoppels and (2) procedural unfairness which should be fully argued and considered by this court. Accordingly, I grant leave in terms of High Court Rules Order 53 Rule 3(1) to review this matter. I will take a hearing date convenient to both counsel and the court and directions for the hearing of the judicial review.
Ms. D. Dias Wickramasinghe
Judge
At Lautoka
8th December 2010
[1] Book of descendents.
[2]Section 9.-(1) In all cases in which the Commission decides the ownership of any land it shall record the boundaries of such land and in all cases in which the land is decided to be the property of a native Fijian it shall record the names of the persons comprising the proprietary unit in respect of that land.
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