State v Native Lands Appeal Tribunal [2010] FJHC 556; HBJ4.2009 (28 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBJ 4 OF 2009

THE STATE

V

NATIVE LANDS APPEALS TRIBUNAL
First Respondent

CHAIRMAN NATIVE LANDS COMMISSION
Second Respondent

THE ATTORNEY-GENERAL
Third Respondent

EPARAMA TURAGANIVALU
Fourth Respondent

EX-PARTE:

AKUILA RAIBEVU
Applicant

Mr S Karavaki for Applicant
Ms S Levaci for First and Third Respondents
Mr S Valenitabua for Fourth Respondent

DECISION

On 6 February 2009 the Applicant filed an application for leave to apply for judicial review of the decision dated 6 November 2009 of the First Respondent The Native Lands Appeals Tribunal (the Tribunal). The year is incorrectly stated and it is apparent that the date of the decision was 6 November 2008.

The decision in question was that of the First Respondent wherein the Tribunal quashed the decision dated 6 June 2005 of the Chairman of the Native Lands Commission (the Commission). The Commission had decided that the title of Turaga ni Mataqali Nawavatu of the Yavusa Matanikorovatu, Naitasiri was to be transferred to Tokatoka Vunibuco with the Raibevu family after the death of Jone Tubuto.

The grounds of the challenge were (a) that the First Respondent (the Tribunal) had acted ultra vires and in excess of its jurisdiction, (b) that the First Respondent took into account irrelevant considerations and failed to take into account relevant considerations, (c) that the First Respondent concluded its hearing with insufficient evidence and (d) that the First Respondent was biased against the Raibevu family and had pre-determined the outcome of the appeal.

There was no challenge in respect of any decision taken by the Second or Third Respondents and no relief was sought against them.

A Notice of Opposition was filed on 4 March 2009 by the Office of the Attorney-General on behalf of all three Respondents.

On 10 July 2009 a consent order was made to the effect that Eparama Turaganivalu be added as a Respondent.

On 12 August 2009 I granted leave to the Applicant to apply for Judicial Review. The order was sealed on 2 September 2009. I handed down a written decision giving reasons for granting leave on 16 September 2009. The question of the Court's jurisdiction to hear the application for leave was not raised by Counsel.

The application for judicial review was by way of motion filed on 4 September 2009 and was listed for mention before me on 2nd October 2009. On that day directions were given for the filing of further affidavit material by all the parties. The parties subsequently requested additional time for filing their affidavits.
The application for Judicial Review was listed for hearing on 23 March 2010. On that day a preliminary issue was raised by the Court concerning an amendment to the Native Lands Act Cap 133. I directed that the parties present oral submissions on this issue, initially on 20 April 2010. At the request of the parties the submissions were presented on 23 June 2010.

Pursuant to the Native Lands (Amendment) (Appeals Tribunal) Act 1998, section 7 of the principal Act (the Native Lands Act Cap 133) was amended, inter alia, by adding the following subsection:

"(5) Decisions of the Appeals Tribunal are to be final and conclusive and cannot be challenged in a Court of law."

Prior to the amendment coming into effect, the position had been covered by section 100 (4) of the 1990 Constitution which provided:

"For the purposes of the Constitution the opinion or decisions of the Native Lands Commission on

(a) Matters relating to and covering Fijian customs, traditions and usages or the existence, extent, or application of customary laws; and

(b) Disputes as to the headship of any division or subdivision of the Fijian people having the customary right to occupy and use any native lands,

shall be final and conclusive and shall not be challenged in a Court of law."

Upon the commencement of the 1997 Constitution on 25 July 1998, with limited exceptions, the 1990 Constitution was repealed, including section 100 (4).

However, the effect of the 1998 amendments to the Native Lands Act is that section 100 (4) of the 1990 Constitution and the amended section 7 of the Native Lands Act are in similar terms. The same purpose has been achieved not by a provision in the 1997 Constitution but by an amendment to the Native Lands Act (the Act).

The one difference between the two provisions is that section 100 (4) protected decisions of the Native Lands Commission whereas section 7 (5) is concerned with decisions of the Appeals Tribunal. This was probably as a result of the limited jurisdiction of the Tribunal prior to other amendments to section 7 in 1998. Before the amendments to section 7, the right of appeal to the Tribunal was limited to decisions of the Commission made under section 6 and decisions of a Commissioner made under section 16 of the Act.

The purpose of section 100(4) of the 1990 Constitution was to protect decisions made by the Commission under section 17 of the Act. The right of appeal to the Tribunal that was introduced by the 1998 amendments replaced that protection. Consequently it was then the decisions of the Tribunal that were afforded protection by section 7(5).

The abrogation of the 1997 Constitution in April 2009 does not affect the ouster or privative provision in section 7. By virtue of section 2 of the Fiji Existing Laws Decree 2009, the position remains to be determined by reference to section 7 of the Act.

In Nava –v- Native Lands Commission and Another (1994) 40 FLR 252 the Fiji Court of Appeal considered the effect of section 100 (4) in relation to an application for leave to apply for judicial review against a decision of the Native Lands Commission (the Commission). The grounds for challenging that decision included the claim that the Commission went outside the customs and traditions of the chiefly Tokatoka in making the appointment of Taukei Vidilo in an acting capacity. This ground was in effect seeking to challenge the decision on its merits. As the Court of Appeal noted at page 258:

"In the present case, what the appellant sought to do in the High Court was to question or challenge the decision of the Commission on the content or the extent of the Fijian customs and their application to the chiefly position in this particular case. Section 100 (4) (a) and (b) of the Constitution clearly protects the decisions of the Commission in both respects and the High Court has no jurisdiction to review the decision."

Of some interest is the reference by the Court of Appeal in its Nava decision (supra) to the earlier decision of Bulou Eta Kacalaini Vosailagi –v- Native Lands Commission and Others (unreported Civil Action No. 19 of 1998 delivered 22 June 1989 per Tuivaga CJ). That was an application for Judicial Review under Order 53 of the High Court Rules challenging a decision of the Commission made under section 17 of the Act.

At that time there was no right of appeal under section 7 in respect of decisions made by the Commission under section 17 of the Act. That right of appeal to the Appeals Tribunal only came into effect as result of the 1998 amendments to the Act. A challenge under Order 53 was the only course of action available to a party aggrieved by a decision of the Commission made under section 17.

The other point to recall is that the decision was handed down prior to the introduction of section 100 (4) of the 1990 Constitution. There was therefore no ouster or privative clause in relation to decisions made by the Commission under section 17 of the Act.

The decision is of interest for two reasons. First, one of the grounds relied upon for the challenge was that the decision of the Commission was invalid on the basis that there was a real likelihood of bias on the part of the Commission. Tuivaga CJ set aside the decision on the grounds of bias.

In its observations the Court of Appeal in the Nava decision (supra) did not appear to take issue with that conclusion and in the absence of a privative or ouster clause there was no reason for it to do so.

Secondly, and perhaps significantly, the Court of Appeal quoted at page 259 with approval the following reference to matters of custom made by the Chief Justice during the course of his judgment:

"... this Court has no jurisdiction to decide the merits of the 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."

These comments reflect the accepted function of the Court in an application for judicial review under Order 53. The Court of Appeal then pointedly noted at page 259 that:

"The position is now put beyond doubt by section 100 (4) of the [1990] Constitution."

In my view the Court of Appeal's comments support the conclusion that section 100 (4) of the 1990 Constitution represented a codification of the principle that already existed at common law. In other words, under section 100 (4), as under the common law, in an application for judicial review, "whether the Commission came to the right or wrong decision according to Fijian custom and tradition is not for this Court to say" (per Tuivaga CJ supra). However section 100 (4) would not prevent a Court in an application under Order 53, from examining whether a decision had been made in accordance with the law, i.e., did it have the jurisdiction and did it follow the rules of natural justice (procedural fairness and the absence of bias).

The Court of Appeal had cause to revisit its Nava decision in Ratu Jeremaia Natauniyalo –v- The Native Land Commission and Ratu Akuila Koroimata (1998) 44 F.L.R 280. At page 283 the Court of Appeal noted:

"In Nava's case, this Court expressly left open the question whether the English policy approach as shown in the above quotations was appropriate to and applicable in Fiji. The applicant for judicial review in that case had sought to impugn the Commission's decision on the merits. There was no claim of lack of process or breach of natural justice. Not surprisingly, this Court held that section 100 (4) meant what it said in relation to a decision of the Commission which had been reached by valid process."

Then, so as to put the matter beyond doubt, the Court of Appeal at page 284 stated:

"... we consider that the Anisminic principles are part of the law of Fiji."

The Anisminic principles to which the Court referred were quoted in its judgment. Referring to the speech of Lord Wilberforce in Anisminic Ltd –v- Foreign Compensation Commission and Another [1969] 1 A.C 147 at page 207 and 208 the Court of Appeal quoted the following extract at pages 282 – 283:

"The question, what is the tribunal's proper area, is one which it has always been permissible to ask and to answer, and it must follow that examination of its extent is not precluded by a clause conferring conclusiveness, finality or unquestionability upon its decision. These clauses in their nature can only relate to decisions given within the field of operation entrusted to the tribunal."

"The Courts when they decide that a decision is a nullity are not disregarding the preclusive clause. For just as it is their duty to attribute autonomy of decision of action to the tribunal within the designated area, so, as the counterpart of this autonomy, they must ensure that the limits of that area which have been laid down are observed. In each task they are carrying out the intention of the legislature, and it would be a misdescription to state it in terms of a struggle between the Courts and the executive. What would be the purpose of defining by statute the limit of a tribunal's process, if ... those limits could safely be passed."

In Joni Salueirogo Salala and Another –v- Viliame Bouwalu (unreported Civil Appeal No. 5 of 2006 delivered on 13 October 2008) the Supreme Court expressed the view at paragraph 26 that:

"While section 100 (4) [of the 1990 Constitution] remained in force it protected the Commission's decisions within its jurisdiction" (emphasis added).

In my view it follows from these authorities that section 100 (4) could not protect a decision made by the Commission under section 17 if it had acted beyond its jurisdiction.

In Ratu Akuila Kubose –v- The State, the Appeals Tribunal and the Attorney-General of Fiji (unreported Civil Appeal No. 10 of 2006 delivered on 29 October 2008) the Court of Appeal, Fiji Island stated at page 6 that:

"The Courts have held that the effect of [section 7 (5) of the Act] is that decisions of the Tribunal are unimpeachable provided that they are valid decisions, reached in accordance with the principles of natural justice."

In that case the Court of Appeal was satisfied that the material placed before the judge at first instance showed that the Appellant had been denied natural justice in the form of procedural fairness. It reversed the decision and not only granted leave but also granted the application for judicial review. The Tribunal was directed to rehear the Appellant's appeal in conformity with its reasons and differently constituted.
This line of reasoning has also been applied by the Supreme Court to privative or ouster clauses that appear in other legislation. For example, section 73 (7) of the 1997 Constitution provided that a determination by the High Court in proceedings before it as the Court of Disputed Returns is final. In Prem Singh –v- Krishna Prasad and Others (unreported Civil Appeal No. 1 of 2002 delivered on 29 August 2002 the Supreme Court stated at page 24 that:

"But Parliament, following other precedent, has chosen to commit conclusively the task of interpreting the relevant legislation to the High Court in the exercise of this special jurisdiction. There was here no conduct of the kind that would fall within Lord Scarman's proviso, nor, accepting the explicit constitutional and statutory limits in the Court's jurisdiction and process, did Gates J in his interpretation of section 116 exceed his powers with the consequence that the privative clause could not apply."

From these authorities it is clear that, even when faced with a privative clause, however worded, the court retains its supervisory jurisdiction when it is claimed that the decision-maker has exceeded his powers or jurisdiction and when there has been a denial of natural justice in the form of a lack of procedural fairness or when bias is alleged.

In reaching this conclusion I refer, with respect, to the comments made by Byrne J in The State v. The Native Lands Commission and Others ex parte Ratu Akuila Koroimata (1997) 43 F.L.R 102 at page 105:

"I cannot bring myself to believe that the Court (in Nava's case, supra) intended to say that even where a decision of the Commission was tainted by the most obvious bias or failure to accord the parties a fair hearing such a decision was not reviewable by the superior courts of this country."

I am of the view that the same comments apply when the challenge relies on an excess of jurisdiction and/or bias.

I can think of no reason why the views expressed by the courts in relation to section 100 (4) of the 1990 Constitution in relation to decisions of the Commission should not apply with equal force to section 7 (5) of the Act in relation to decisions of the Appeals Tribunal.

For those reasons I have concluded the Court retains its jurisdiction to determine the application for judicial review in respect of the challenges claiming (a) that the First Respondent acted ultra vires and in excess of its jurisdiction, (b) that the First Respondent concluded its hearing with insufficient evidence to the extent that this ground is concerned only with procedural fairness and (c) that the First Respondent was biased and pre-determined the appeal.

I order that the costs of these proceedings be costs in the cause.

W D Calanchini
JUDGE

28 July 2010
At Suva