Droka v Walesi [2011] FJHC 520; HBC75.2011 (13 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 75 of 2011

IN THE MATTER of an Application under Section 169 of the Land Transfer Act, Cap 131

BETWEEN:

JOSAIA DROKA for and on behalf of Mataqali Nawavatu of Yavusa Matanikorovatu of Kalabu Village, Naitasiri.
PLAINTIFF

AND:

TANIELA WALESI of Vunidakua Settlement, Stage 4, Cunningham Road, Suva.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: Sherani & Co. for the Plaintiff
Qoro Legal. for the Defendant

Date of Hearing: 9th August, 2011
Date of Ruling: 13th September, 2011

RULING

A. INTRODUCTION

1. The Plaintiff has filed this action to evict the Defendant from a native land. The Plaintiff state that he had obtained the consent of the Mataqali, to institute this action and have annexed some names and signatures to the application. The Defendant admits that he is in possession of a native land and state that the chief of the said Mataqali has given his consent to stay. The issue is whether the Plaintiff can proceed with Section 169 of Land Transfer Act to evict the Defendant.

B. THE PRELIMINARY ISSUE OF LAW

2. At the hearing the Plaintiff was unrepresented and no appearance was made on behalf of the Plaintiff. Since the Plaintiff has filed an affidavit in support of this application, even without any appearance I need to examine the content of the said affidavit, considering the nature and the procedure of the Land Transfer Act, regarding the eviction procedure.

The preliminary issue was raised in the affidavit in opposition by the Defendant as to the suitability of proceedings in terms of Land Transfer Act

3. 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)

4. 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.'
   

5. 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 pursuant to the provisions of Native Land Trust Act.
   
6. There is no such lease to the Defendant and he had been in the said native land for a long period and in his affidavit in opposition he stated
   

'The head of the said Mataqali namely Eparama Turaganivalu had stated and confirmed to us that he did not consent for the intuitions of such action for he was not aware that such steps were taken by the Plaintiff. Also, he supported his late brother's decision. (The late Turaga-in-Mataqali, Mr Taniela Dika) where consent was made and endorsed for the Defendant to reside on the said land.'

7. No affidavit in reply to the said affidavit in opposition was made, though an appearance was made on behalf of the Plaintiff, after the affidavit in opposition was filed and further 21 days granted to file the affidavit in reply. No affidavit in reply filed and no appearance was made on behalf of the Plaintiff on the date of hearing.
   
8. It is clear that there is no registered title and the issues involving the traditions and customs cannot be determined in a summary eviction procedure that is found in the Land Transfer Act, more specifically Section 169 of Land Transfer Act.
   
9. 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.)

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 .

C. CONCLUSION

10. The Preliminary Issue is upheld and the application for eviction in terms of Section 169 of the Land Transfer Act is dismissed and the cost is assessed summarily at $500.

The Court Orders as follows

1. The summons for eviction of the Defendant is dismissed and struck off.
   
2. The Plaintiff is ordered to pay the Defendant a cost of $500 assessed summarily.
   

Dated at Suva this 13th day of September, 2011

Mr. Deepthi Amaratunga
Acting Master of the High Court
Suva