Nabaro v Native Lands Commission [2012] FJHC 881; HBC161.2010 (22 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Civil Action HBC No. 161 of 2010

BETWEEN:

LUKE NABARO for and on behalf of himself
and on behalf of Tokatoka Nasauvakarua, No. 18,
Mataqali Naviyagoiratu of Balevuto, Ba.
PLAINTIFF

AND:

THE NATIVE LANDS COMMISSION
established under the Native Lands Act Cap 133 of GCC Building, Nasese, Suva.
1st DEFENDANT

AND:

THE NATIVE LANDS TRUST BOARD
(now the iTaukei Lands Trust Board),
a body corporate established under the Native (iTaukei) Lands Trust Act (Cap 134), iTaukei Trust Board Building, Victoria Parade, Suva.
2nd DEFENDANT

Before : Master Anare Tuilevuka
Appearances : Mr. Niko Nawaikula, Nawaikula Esquire, for the Plaintiff/Respondent
Mr. R. Green, Office of the Attorney-General, Lautoka for the 1st Defendant

Date of ruling : Wednesday 22 February 2012.

RULING

[1]. The Office of the Attorney-General seeks an Order to strike out the Originating Summons filed by the plaintiff under Order 18 Rule 18(1) (d) of the High Court Rules 1988 and under the inherent jurisdiction of the Court on the ground that it is an abuse of process.

[2]. The Originating Summons in question was filed on 11 August 2011 by Nawaikula Esquire. It seeks the following Orders:

1. A Declaration that Tokatoka No. 18 Sauvakarua of Mataqali Naviyagoiratu is a separate and distinct Tokatoka within the Mataqali Naviyagoiratu.
   
2. A Declaration that the actions of the Defendant in deleting the Plaintiffs name from their lawful Tokatoka No. 18 Sauvakarua and transfers to 18A Kayakaya is wrong according to custom and according to law and therefore null and void.
   
3. An Order under section 10 of the Native Lands Trust Act directed (sic) the 1st Defendant to amend its record and correct the mistake.
   

[3]. An Affidavit of Luke Nabaro sworn on 11 August 2010 is filed herein support of the Originating Summons. The source of his (and the members of his tokatoka’s) grievance is a certain decision by the Native Lands Commission (now the i Taukei Lands Commission) to remove their names from tokatoka No. 18 Nasauvakarua and then transferring these to tokatoka No. 18A Kayakaya. Essentially, they want these changes to be undone.

[4]. In Bulou Eta Kacalaini Vosailagi v NLC [1989] FJHC 53, Tuivaga CJ said as follows:

Bulou Eta is seeking redress in this Court from the decision of the Commission.
This Court's jurisdiction to adjudicate in this matter arises under Order 53 of the High Court Rules which provides a procedure for the High Court to review the decision of an inferior Court or a tribunal created by an Act of Parliament. Bulou Eta, is seeking a number of reliefs, namely:

(i) Declaration that the decision of the Native Lands Commission of 18 November, 1988 that Ratu Sakiusa Kuruicivi Makutu is Ka Levu is invalid and of no effect;

(ii) an Order of Mandamus to compel the Native Lands Commission to perform its statutory functions under Section 17(1) of the Native Lands Act;

(iii) an Order of Certiorari that the decision of the Native Lands Commission of 18 November, 1988 aforesaid be removed to this Court so that it may be quashed;

(iv) an Injunction restraining the Native Land Trust Board from making further rent payments to Ratu Sakiusa Makutu;

(v) unspecified damages.

At this point it should be made clear that 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.

As was said by Lord Hailsham L.C. in Chief Constable of North Wales Police v. Evans [1982] UKHL 10; [1982] 1 W.L.R. 1155 at page 1160:-

"It is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that, at it is no part of that purpose to substitute the opinion of the judiciary or individual Judges for that of the authority constituted by law to decide the matters in question."

A note in The Supreme Court Practice 1988 - Volume I commences on that case as follows:-

"Thus, a decision of an inferior court or public authority may be quashed (by an order of certiorari made on an application for judicial review) where that court or authority acted without jurisdiction or exceeded its jurisdiction, or failed to comply with the rules of natural justice in a case where those rules are applicable" .........

[5]. The gist of Mr. Lewaravu’s submissions are as follows:

• (i) the plaintiff is challenging the view of the Commissioner of the iTLC in removing their names from one tokatoka and then re-registering them under a different tokatoka.
  
• (ii) the declaratory relief that the plaintiff seeks is one that presupposes that there was no merit in the iTLC’s decision.
  

[6]. Mr. Nawaikula submits that the facts are not in dispute and therefore, the case is appropriately within the jurisdiction of the High Court. He further submits that the plaintiffs rely on section 10 of the i-Taukei Lands Act (formerly the Native Lands Act) which allows the i-TLC to amend its records when an error is found. He argues that the High Court has original jurisdiction to make its determination on any matter brought before it and cites sections 18 and 22 of the High Court Act.

[7]. Section 10 provides as follows:

How register shall be kept

10.-(1) The volumes of such register according to the provinces, tikinas, towns or in whatever way the Commissioner may determine shall from time to time be transmitted to the Registrar of Titles who shall preserve the Register of Native Lands with the same care as the registers of land granted by the Crown.

(2) When it is found that an error has been made in the preparation of such register or that any Fijian i-taukei has been recorded and registered in any proprietary unit other than the proper unit or that the name of any Fijian i-taukei has been inadvertently omitted from the register recording the proper unit of such Fijian i-taukei, 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.

(3 of 1912, s. 2, amended by 6 of 1936, s. 2, and incorporating 27 of 1932, s. 6.)

[8]. In my view, even if the facts are not in dispute as Mr. Nawaikula submits, then the plaintiff should be filing an application before the Chairman of the iTLC pursuant to section 10(2) of the iTLC Act. Section 10(2) clearly authorizes the Registrar of Titles to correct any entry recorded in error on the VKB but only upon an order under the hand of the Chairman of the NLC (now iTLC). The fact that an order of the Chairman of the iTLC is required before the Registrar can correct or delete or add names implies that the Registrar must first be satisfied that what is alleged is in fact a clerical error. And having said that, whether or not the changes in this case were made in “error” in the sense contemplated by section 10(2) cannot be presumed merely from the fact that the Office of the Attorney-General has not filed an affidavit in opposition in this case.

[9]. In any event, it appears to me that the i-TLC’s decision to remove the plaintiffs’ names from Tokatoka No. 18 Sauvakarua and then re-registering them to Tokatoka 18A Kayakaya was made after a full inquiry and investigation. A letter dated 13 July 2009 from the Chairman of the iTLC to the iTLTB written in vernacular exhibited in the plaintiff’s affidavit (annexure “LN7”) confirms that. The point is that the so-called “error” alleged by the plaintiff was not merely a clerical error. In other words, it was a substantive decision (and action) which ought to have been taken up through the appeal process in the i-Taukei Lands Act[1].

[10]. Accordingly, I agree with Mr. Lewaravu’s submissions and hereby strike out the plaintiff’s originating summons. I believe striking out the plaintiff’s summons would be in accordance with the principles in Bulou Eta Kacalaini Vosailagi v NLC (see also State v Native Lands Appeals Tribunal [2009] FJHC 164; HBJ 2 of 2009L (14 August 2009) as per Inoke J; In re Application for Judicial Review by Taniela Naika Varo [2011] FJHC 796; Judicial Review 02.2008 (8 December 2011) as per Wickramasinghe J, Dawai v Native Land Trust Board [2011] FJHC 498; HBC049.2005L (5 September 2011) as per Fernando J).

Costs to the 1st defendant in the sum of $350-00 (three hundred and fifty dollars only).

................................
Anare Tuilevuka
Master

At Lautoka.
22 February 2012.

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^[1] i-Taukei Lands Appeals Commission.