Radoke v Native Lands Commission [2014] FJHC 521; HBC52.2008 (14 July 2014)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 52 of 2008

BETWEEN:

ULAIASI RADOKE
Plaintiff

AND:

NATIVE LANDS COMMISSION
1st Defendant

AND:

NATIVE LANDS TRUST BOARD
2nd Defendant

Counsel: Mr. N. Nawaikula for the Plaintiff
Mr. N. Chand for the 1st Defendant
Mr. C. Tuberi & Mr. S. Vukisa for the 2nd Defendant

Date of Hearing: 24th September, 2014
Date of Judgment: 14th July, 2014

JUDGMENT

1. The plaintiff has filed this originating summons against the two defendants seeking among other things for the following declarations.
   
   1. A Declaration that the deletion of the name of Plaintiff by the 1st Defendant from the VKB pertaining to Mataqali Naisogowai, Tokatoka Naisogowai is wrong, erroneous and unlawful.
      
   2. A Declaration that the payment of income belonging to Mataqali Naisogowai without authority of the plaintiff by the 2nd defendant to land owning units other than Mataqali Naisogowai is wrong and unlawful.
      
   3. An Order directing the 1st Defendant to restore the name of t he Plaintiff under Mataqali Naisogowai, Tokatoka Naisogowai today.
      
   4. An Order directing the 2nd Defendant to pay to the Plaintiff all monies paid out on account of Mataqali Naisogowai.
      

Plaintiffs Affidavit

2. The plaintiff deposes that his name has been deleted from the register pertaining to his Mataqali.
   
3. It is further deposed that the first defendant has wrong fully deleted the deponent's name with an entry stating he is dead.
   
4. The plaintiff has submitted the copy of the Register marked UR 1 which shows his name under number 5 is cut with a single line and he further deposes that it had been done without informing him. He has submitted UR 2 and UR 3 his Birth Certificate made in 2006 and a picture taken in 2007.
   
5. The deponent submits that the first defendant has the power under section 40 of the act to correct it and request the court to grant the orders sought in the summons.
   
6. It is also deposed that the second defendant had paid the money belonging to the plaintiff's Mataqali to a third party who has not been made a defendant in this case.
   
7. A document marked UR4 is submitted to show the amount paid.
   
8. Even though the document shows an amount it does not state whether the said money has been paid or to whom it has been paid.
   

Second Defendants Opposition

9. Second defendant has filed an opposition and has deposed that the one Ulaiasi Radoke who was born in 1929 had passed away. It is deposed that the first defendant has send a letter marked MR 1 which stated that Ulaiasi Radoke has been registered under three different Mataqalis namely Mataqali Vusadrevu by the father Ulaiasi Radoke. Mataqali Naisogowai under Rupeni Wesi as the father. Mataqali Navoka under his mother's name Mere Rewe. It is deposed that all his 7 children are also registered under the last mentioned mataqali. It is further deposed that Mataqali Naisogowai had been marked as extinct as per the document "MR 1". Native Land Trust Board had issued a ruling de-registering the plaintiff from the Mataqali Vusadrevu and has authorized the name Ulaiasi to be registered under the mothers Mataqali. The mataqali, the plaintiff alleged that his name should be included had been marked as extinct.
   
10. The defendant further stated that the plaintiff's name "Ulaiasi Radoke" being NLC number 2/255 and born on 17.7.1930 is also registered under Mataqali Navoka. The defendant has strongly denied that the second defendant has paid any money due to Mataqali Naisogowai and says that the accounts are frozen due to the extinction of the Mataqali. Further the land previously owned by the said Mataqali has been distributed to Yavusa Bolawaqa in 2004.
    

First Defendant's Opposition

11. The defendant deposes that the name of the plaintiff is not deleted from the register. His name had been registered under the Mataqali Vusadrevu. It has been done by his father who had the same name. The annexure "TB 2" is the Birth Certificate of the plaintiff registered in 1930. The informant is the father of the plaintiff. It is deposed that as per 1B 4 the plaintiff as well as his children have been registered under the said Mataqali.
    
12. That on 3 April 2006 after making inquires and using extracts in the Vola ni Kawa of one Ulaiasi Radoka whose father's name was Rupeni Wesi of Mataqali Naisogowai the Plaintiff has stated that there is an error in the Birth Certificate. To correct the record a statutory declaration has been submitted. The deponent alleges that the earlier birth certificate of the plaintiff on the 2nd page had been signed by both his parents, declaring the plaintiff to be the son. It is also attested by a witness. The said documents are submitted as IB 7 and IB 8.
    
13. That as there was a statutory declaration, the first defendant had issued the declaration for correction of error in the register.
    
14. That the first defendant issues certificates only to persons registered under the Volanikewe. However as the plaintiff with the name of Ulaiasi Radoke had inquired about particulars of a Ulaiasi Radoke whose deceased father's name was Rupeni Wesi the first defendant had issued the Certificate to the plaintiff . The Defendant further deposes that the first defendant was unaware that the plaintiff used it to change his father's name.
    
15. That there had been a commission sitting in the village and in that the members of the Mataqali had informed the death of Ulaiasi Radoke and with that confirmation, has struck out the plaintiffs name on the basis the name bearer is dead. This death has been confirmed by the members of the Mataqali.
    
16. Thereafter the plaintiff had changed the Birth Certificate and as a result his name has been registered under two Mataqalis. One was under the Mataqali of Rupeni Weisi and the other under the Mataqali of Ulaiasi Radoke. Plaintiff's children were never registered under the Mataqali Nai Sogawai.
    
17. They were first registered under Mataqali Vusadrevu as per IB 4 and as a result of Plaintiff's own actions of changing Birth Certificate which showed he was not sure of his father, then they were deregistered and registered under Mataqali Navoka which is plaintiff's mother's Mataqali. As per 1B11 the plaintiff was deregistered from Mataqali Vusadrevu and registered under Mataqali Navoka which is his mother's Mataqali.
    
18. The report relies on IB 1 and confirms that Ulaiasi Radoke belonging to Mataqali Naisogowai is dead.
    
19. The plaintiff in replying among other things states that what they are asking is to implement the first defendant's decision dated 2.10.01 which is marked as IB 11.
    

Determination

20. The second defendant has raised several objections to the maintainability of this action. Counsel argued that the relief sought is a public law remedy and therefore the proper way should have been to file a Judicial Review application.
    
21. The defendants also submitted that under S 6(1) 16(1) and 17(1) of the Native Land's Act that this court has no jurisdiction to determine this issue.
    
22. In determining this matter court draws its attention to the affidavits filed, oral and written submissions made and the cases cited by both parties.
    
23. It was submitted by the defendant that the plaintiff's original birth certificate was registered in 1930 and it clearly gives the particulars of his mother and father. Also the informant of the Registration of the birth was the father. The Original Birth Certificate marked IB 2 and IB 7 is the same.
    
24. For whatever the reason the plaintiff has failed to submit his original birth certificate but it has been submitted only by the defendants.
    
25. In the original birth certificate the parents' names and their respective mataqalis are depicted. In the said certificate, both parents have signed and it has been witness by another person. It was strenuously argued by the defendant that this was the true birth certificate of the plaintiff and that both parents had infact signed and admitted all facts in that and has clearly stated the Mataqali to which they belong.
    
26. It was submitted that if as the plaintiff states the purported father of the plaintiff was not his biological father he would not have signed the said birth certificate with the plaintiff's mother. It was also submitted that if the plaintiff denied his father then he should have done that before the parents died but the plaintiff has done it only after the parents died and has waited 76 years to do the correction. It was submitted that the plaintiff had done a search and has found that there was a Ulaiasi Radoke who belonged to Mataqali Naisogowai and with his death the Mataqali has become extinct and after finding out this the plaintiff had made an application after 76 years to change his father's name to fall into the said Mataqali for the purpose of obtaining the land benefits.
    
27. It was also submitted that to achieve this the plaintiff had obtained a statutory declaration from one Josese Masibilo who does not state who he is or how he got to know of the paternity of the plaintiff. The said statutory declaration had been given in 2006, and that is a self made document. It was also submitted that there are several persons with the same name Ulaiasi Radoke and the Plaintiff who also has that name has manipulated this whole process.
    
28. In replying the plaintiff avoiding the main allegation made in the submission gave a simple answer to say that based on this information the birth certificate has already been amended and that it is too late for the first defendant to make such allegation now. The court has considered the submissions of both parties in this issue.
    
29. The court finds the plaintiff is relying on the amended birth certificate of himself and of his siblings in support of his contention to obtain the relief sought. All these annexures and the photograph the plaintiff is relying are all documents made after 2006.
    
30. In contrary to the plaintiffs assertion that his name has been deleted from all Mataqalis. The defendants have submitted that the plaintiffs name has not been deleted from all mataqalis and that his name is registered under the mother's Mataqali. That Ulaiasi Radoke who belonged to Mataqali Naisogowai has died and is a different person to the plaintiff. Also the plaintiff only bears the same name. As per the documents annexed the court observes that the plaintiff's name is registered under the mother's mataqali.
    
31. It was brought to the notice that the plaintiff's father also had the same name and belonged to the different Mataqali namely Vusadrivu. The plaintiff answering this submitted that the defendant made all these submissions based only on a declaration and not based on any death Certificate. However this court finds that the amendment of the original birth certificate that caused this question too had been done based only on a declaration.
    
32. The defendant's submitted that the deletion of the name of the plaintiff or the plaintiff's name sake was the result of a commission and the commission report was marked as IB 1 though the Plaintiff submitted that his name was not reflected in IB 1. The defendants have proved the said allegation to be wrong and submitted that the name Ulaiasi Radoke is in the said report.
    
33. Opposing the reliefs sought by the plaintiff the defendants has raised several objections based on the Native Land Act, pertaining to the jurisdiction of court.
    
34. Under section 10(2) of the Native Lands Act when there is an error in the preparation of the register as is alleged in this case, the power is given to the chairman of the Native Lands Commission to correct the same.
    
35. As alleged even if the plaintiff has been born out of wed-lock, still under section 21, the plaintiff has a remedy. Section 21 which is a deeming provision allows them to be registered as members of the proprietary unit of either their father or mother.
    
36. Having considered the legal provisions it was submitted that what prompted the plaintiff's name to be deleted was a commission sitting on 15.3.96. the commission sitting called "veitrogi venus" was represented by the mataqalis and it has been informed to the commission by the members of the mataqalis that the person named Ulaiasi Radoke was declared dead and the mataqali extinct. Annexed IB 1 clearly depicts this entry. As per annexure 1B 1 the commission sitting after deliberations has come to the conclusion that the person called Ulaiasi Radoke is dead. It has come to the said conclusion on what was submitted by the present members of the mataqali. However if this act was wrong why the plaintiff did not take steps to correct this at that stage is not clear and the plaintiff has failed to satisfy court as to why he waited till 2007 to get this corrected. The plaintiff had even allowed his children and grand children to be registered under a different mataqali.
    
37. In answering this, the plaintiff had relied on the decision of the NLC which is marked as IB 11 and submitted that there is a doubt about the plaintiff's father and that there was a protest from the mother's unit against the Plaintiff being registered under the mother's unit. However as I have stated in this judgment earlier even if a child is illegitimate still he can be registered under the mother's unit. The plaintiff has further submitted that this was the reason for the plaintiff to submit a copy of the document1B 8 which was challenged by the first defendant.
    
38. It was alleged that the original birth certificate which was there from 1930 for more than 76 years till the plaintiff amended the father's name was correct. If not, both parents would not have signed and acknowledged the fact in the plaintiff's birth certificate. The Plaintiff failed to give an explanation to this or as to why he waited for 76 years, till the death of his parents to get the Birth Certificate changed.
    
39. It is observed that as per the original birth certificate marked as IB 2 both parents have declared that the plaintiff was born in the village of "Vuisavu". However in the statutory declaration marked IB 6 given by Josese Masibilo it is stated his father was one Rupeni Wesi and plaintiff was born in village Valouoni which is a different village. With this discrepancy it is submitted that IB 5 and IB 6 are not correct. The court observes the plaintiff has failed to give an explanation on this issue. It was submitted that they are self prepared documents prepared with an ulterior motive to inherit the properties belonging to an extinct mataqali. The first defendant has submitted that the plaintiff had gone to obtain an extract of the Native Land and Fisheries Commission Certificate from the VKB and has found out the details of the extinct mataqali which had the last name, same as the plaintiff's and thereafter has submitted the statutory declaration to tally with the particulars and obtained a new certificate. Thereafter using that he has taken steps to change the father's name in the Birth Certificate to correspond with the particulars pertaining to his name seen in the now extinct mataqali.
    
40. The first defendant responding to the submissions of the plaintiff submitted that the plaintiff's submission that, now he doesn't belong to a mataqali and that he is considered dead when he is alive is wrong, and the plaintiff is not considered dead nor is he without being registered under a mataqali. The plaintiff is registered under the mataqali of his mother and has cited Timoci Ramokosoi & others –v- NLC, HBC 299 of 2000 to justify this position, to the extent of registering the name under the mother's mataqali.
    
41. The Court observes that as per this decision if the parties wish a legitimate child from the province where plaintiff comes can be registered either in the father's or mother's mataqali. However, if they are illegitimate they should be registered in the mother's mataqali.
    
42. The first defendant heavily relied on this case and submitted that the courts should not interfere with the wishes of the parents once the registration is done. In any event in this case the plaintiff himself has submitted that he is born out of wedlock, in the given circumstance as per the above cited case he can only be registered in the mother's mataqali. The plaintiff has failed to respond to this submission.
    
43. As per the submissions the plaintiff had been registered under both his father and mother mataqalis (IB 4 and IB 10). However the first defendant alleged that on the request of the plaintiff the first defendant had moved the name of the plaintiff from the father's mataqali but allowed it to remain in the mother's mataqali.
    
44. The first defendant also submitted to court that due to the glaring discrepancies in the declaration they are unable to change the register, however, if sufficient evidence is submitted to support his application the first defendant will not deprive the plaintiff of his heritage or the registration. The plaintiff has failed to satisfy court that he has first utilized the statutory provisions to correct the error he alleges has occurred before invoking the jurisdiction of this court.
    
45. The second defendants' entire submission was based on an opposition to the application based on jurisdiction. The second defendant based his opposition under section 6(1) 16(1), 17(1) of the Native Land Act. The plaintiff submits that the present dispute does not fall into the category contemplated in the said section and submits that the said sections have no bearing to the facts in issue. Considering the facts submitted to this court I am inclined to agree with this submission of the plaintiff to on extent. I find the particular sections of the Native Lands Act is not directly relevant to the issue before me. Accordingly I disallow this opposition raised by the second defendant at this stage. The cases cited are also based on this opposition and the circumstances and facts differs from the case before me. Accordingly I decline to follow the same.
    
46. Another opposition was raised that the correct procedure the Plaintiff should have adopted was to file a Judicial Review. The relief numbers 1,2,3,4 prayed in the originating summons itself shows that the issue involved, falls into the domain of public law. The plaintiff's at the argument stage conceded that the issue involves public law. However in justifying the filing of this case the plaintiff submitted that this case involved public law as well as private law and said that the plaintiff has chosen to persue his remedies in private law. The plaintiff was relying on the decided case of Timoci Romokosoi vs NLC, HBC 299 of 2005. It is abundantly clear that the 1st defendant's official acts fall under the public law. The 1st relief sought by the plaintiff is for a declaration pertaining to an official act of the 1st defendant. The relief number 2 in the summons is also for declarations pertaining to an act of the 2nd defendant which is a creature of a statute. There was no disagreement between the parties that the 2nd declaration is pertaining to an official act performed by the 2nd defendant.
    
47. 1st and 2nd defendants are creatures of statutes performing statutory duties. The orders contemplated under 3, 4 too clearly involve public law. The plaintiff is seeking reliefs under private law for official acts done by the defendants, which clearly is in the domain of public law. I have considered the judgment in Timoci Romokosoi vs NLC, HBC 299 of 2005 cited by the plaintiff in justifying his right to pursue remedies under private law to which the remedies are available under public law. I find these facts and circumstances in this case are different to the above cited case. In my view for the plaintiff to rely on a private law remedy to obtain his rights he has to first satisfy Court that he has a legal right and that it has been violated. As correctly submitted it is trite law when the issue in dispute falls on the domain of public law a party cannot obtain relief under private law. The cases cited by the plaintiff is also a high court decision therefore it will only have a non binding persuasive effect on this court.
    

Conclusion

48. In replying to the opposition raised by the first defendant the plaintiff has heavily relied on the annexure IB 11 of the first defendant's affidavit. The English translation of the said document was submitted to court by the plaintiff himself. As per the translation it is pertaining to a dispute that has arisen as a result of the plaintiff being transferred from his father's mataqali (father depicted in the original birth certificate) to his mother's mataqali.
    
49. As per the said document the plaintiff's name has been registered under his father's (as per his original birth certificate) mataqali vusadreu as well as his mother's mataqali Navoka.
    
50. However in 1996 the plaintiff had informed that his father was not Ulaiasi Radoke depicted in his original birth certificate but one Sakenasa Rokotunidau of Natogardrau, Tailevu and required him to be deregistered from the mataqali Vusadreu and to register him under the mother's Mataqali. The document IB 11 goes on to state that due to the subsequent events that had taken place as a result of this dispute and on the request of the plaintiff NLC has deleted the name of the plaintiff from the mataqali Vusadreu and transferred to mother's mataqali Navoka.
    
51. The annexure further states that the members of the mataqali Navoka had objected to his name being there as he has not contributed to the Vanua, Lotu and Matanitu and also a dispute has arisen due to the plaintiff increasing the volume in his church.
    
52. In conclusion the said document states before he can be registered under any mataqali further inquiries should be made pertaining to certain disputed facts.
    
53. The court finds that the whole dispute pertaining to which mataqali the plaintiff should belong has been caused by the plaintiff himself. As submitted to this Court the plaintiff has informed three names on different occasions as his father. The doubt pertaining to paternity has been created by the plaintiff himself. I also find that the first defendant without verifying the queries raised before this Court in this case has issued a document which has been used by the plaintiff to change the particulars of his Birth Certificate.
    
54. I also find that the document IB 11 has not come to any final conclusion but has only stated to carry on further enquires based on certain points. The plaintiff has failed to submit to court any further documentary evidence to show whether further enquiries were carried out or whether there is a final decision on this matter.
    
55. I also find the document IB 11 does not say anything about the plaintiff's present submission of his father being Rupeni Wesi or his Mataqali should be Naisogowai.
    
56. The plaintiff had relied on Mabo –vs- Qld2 [1992] 175 CLR. I find the facts and circumstances of this case are different to the facts and circumstances of the said case.
    
57. I decline to follow the case of Raseiwai –v- Attorney General of Fiji [2005] FJHC 185, as the facts and circumstances are different to the present case.
    
58. It was submitted that the case of Jonetani Kaukimoce –vs- NLC, HBC 383/06, is in appeal and the parties have not submitted whether the appeal is now concluded. I have considered this opposition and accordingly decline to follow the said case.
    
59. As per the submissions made, the affidavits and documents submitted, in view of the strong opposition raised by the second defendant I find the plaintiff has failed to satisfy this Court as to his claim that the plaintiff belongs to the Mataqali Naisogowai. In view of several Ulaiasi Radoke's registered under the Mataqali Naisogowai he has failed to satisfy court that the last name Ulaiasi Radoke in the VKB whose name was deleted as a result of a commission of finding, was himself or another person.
    
60. In the submissions the first defendant submitted that if the plaintiff can substantiate his position and if there is a mistake they were willing to correct it. If there had been further enquiry as recommended by document IB 11 this position would have been cleared, however as I have stated earlier in this judgment none of the parties submitted any other document pursuant to IB 11.
    
61. For the above stated reasons I hold that the plaintiff has failed to satisfy the court to obtain the first relief sought namely a declaration to state "that the deletion of the name of the plaintiff by the first defendant from the VKB pertaining to Mataqali Naisogowai Tokatoka Naisogowai is wrong, erroneous and unlawful."
    
62. As the plaintiff has failed to satisfy the court to obtain the first relief sought and as I have refused to grant the first declaration, orders pertaining, to 2nd, 3rd and 4th reliefs will not arise.
    
63. Accordingly the originating summons dated 11.2.2008 stands dismissed. I award a cost of FJD$ 750 in favor of the first defendant and FJD$ 750 in favor of the second defendant summarily assessed.
    

Mayadunne Corea
JUDGE

14.7.2014