Dakunituraga v Liaci [2011] FJHC 504; HBC80.2011 (6 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 80 of 2011

BETWEEN:

TEVITA DAKUNITURAGA, LORIMA TURAGANISOLEVU and VILIAME NAQELE for and on behalf of Mataqali Rara, Naduru Village, Tailevu.
PLAINTIFFS

AND:

AMEO LIACI of Vunivaudamu No. 2, Vuci Road, Nausori.
DEFENDANT

BEFORE: MASTER DEEPTHI AMARATUNGA

COUNSELS: Ms Rigsby T of QORO LEGAL for the Plaintiffs
: Ms Raikaci N of RAVONO & RAIKACI LAW for the Defendant

DATE OF HEARING: 4th July 2011
DATE OF RULING: 6th September 2011

RULING

1. INTRODUCTION
   

1. The Plaintiff has filed this action for eviction of the Defendant from a land belonging to a Mataqali. The Plaintiffs have filed this action on behalf of Mataqali Rara and Tevita Dakunituraga has sworn the affidavit in support. The Defendant makes a preliminary objection that since there is no registered title, in favour of the Plaintiffs this action should be dismissed in limine.
   

2. PRELIMINARY ISSUE
   

2. The land is admittedly belong to a Mataqali and the affidavit in support states as follows:
   

'That I am the Head of Mataqali Rara and that our Mataqali is the registered owner of all that piece and parcel of land known as Vunivaudmu No 3 [part of ] and, situate in the Province of Tailevu in the island of Viti Levu and more property described in Native Lease Number 16431.'

3. In the affidavit of reply, the Defendant states as follows:
   

'Being the Head of Mataqali Rara does not entitle Tevita Dakunituraga to depose the affidavit in his own right without the express authority of the other Plaintiffs.

Mataqali Rara of which the purported Plaintiffs claim to be its members is not the registered owner of all that piece and parcel of land known as Vunivaudamu No 3 (part of) situated in the province of Tailevu in the island of Viti Levu, within the definition of the word registered in Section 21(2) of the Land Transfer act.

Mataqali Rara is the native and not the registered owner of the said land, the registration which is made in the Register of Native Lands which record all the descriptions and boundaries of all native lands that had been decided or settled by the Native Lands Commission.

Neither Mataqali Rara nor its members are the registered proprietors of the subject land as such are precluded from instituting the present proceedings.

The so called Plaintiffs are misleading this Honorable Court in making reference to Native Lease Number 16431 which has no relevance whatsoever on this proceeding, in that the said lease had long expired on the 31st of December, 2006 and the subject land has since reverted to the native owners.'

So, it is clear that the annexed native lease is now expired and it cannot be the basis of this application.

4. In terms of Section 4 of Land Transfer Act the scope of the Act is defined as:
   

'All land subject to the provisions of the Land (Transfer and Registration) Ordinance and every estate or interest therein and all instruments and dealings affecting any such land, estate or interest shall from the commencement of this Act be deemed to be subject to the provisions of this Act.'

(emphasis is added)

5. Section 5 of the Land Transfer Act defined what lands to be subject to this Act as states:
   

'5. The following freehold and leasehold land shall be subject to the provisions of this Act

1. All land which has already in any manner become subject to the provisions of the Land(Transfer and Registration) Ordinance;
   
2. All land hereafter alienated or contracted to be alienated from the Crown in fee;
   

100. All lessees of Crown land granted pursuant to the provisions of the Crown Lands Act, all lessees for native land granted pursuant to the provisions of the Native Land Trust Act and all mining leases, special mining leases, special site rights and road access licenses granted pursuant to the provisions of the Mining Act;
     

4. All land in respect of which and order is hereafter made under the provisions of any Act now or hereafter in force which has the effect of vesting that land in a person in freehold tenure.'
   

6. In this matter the land is admittedly belong to the Mataqali and the only instance where such land becomes subject of the Land Transfer Act is when it is a lease for a native land granted prusunt to the provisions of Native Land Trust Act.
   
7. In this action the Plaintiffs are seeking eviction of the Defendant on the basis that the Defendant has been included in a different Mataqali.
   

Section 3 of the Native Lands Act states as follows:

'Native lands shall be held by native Fijians according to native custom as evidenced by usage and tradition. Subject to the provisions hereinafter contained such lands may be cultivated, allotted and dealt with by native Fijians as amongst themselves according to their native customs and subject to any regulations made by the Fijian Affairs Board, and in the event of any dispute arising for legal decision in which the question of the tenure of land amongst native Fijians is relevant all courts of law shall decide such disputes according to such regulations or native custom and usage which shall be ascertained as a matter of fact by the examination of witnesses capable of throwing light thereupon.

(Substituted by 9 of 1907, s. 2, and amended by 12 of 1940, s. 35.)

(emphasis is mine)

8. So, it is clear that Mataqali land as in this instance cannot be subject of an action in terms of Section 169 of Land Transfer Act, when the facts are disputed and determinations has to be done in terms of Section 3 of Native Lands Act.
   

100. CONCLUSION
     

9. The preliminary objection regarding the locus standi of the Plaintiffs to institute this action is upheld and the summons to evict the Defendant is dismissed and considering the facts of this case I will not order a cost.
   

The Court Orders as follows:

1. The summons to evict the Defendant is dismissed and struck off;
   
2. No cost.
   

Dated at Suva this 6th Day of September, 2011.

Mr D. Amaratunga
Acting Master of the High Court
Suva