Rokoua v Attorney General [2014] FJHC 793; Civil Action 006.2008 (30 October 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
Civil Action No. 006 of 2008

BETWEEN:

SEMISI ROKOUA
for and on behalf of himself and on behalf of the Mataqali Vitadra, Yavusa Qawa, Bulileka, Labasa.
Plaintiff

AND:

THE ATTORNEY GENERAL
1st Defendant

AND:

THE DIRECTOR OF LANDS,
Ministry of Lands & Mineral Resources, Government Buildings, Suva.
2nd Defendant

AND:

NATIVE LAND TRUST BOARD
3rd Defendant

AND:

NATIVE LANDS COMMISSION
4th Defendant

AND:

THE REGISTRAR OF TITLES
5th Defendant

APPEARANCE : Mr Nawaikula of Nawaikula Esquire, Barristers and Solicitors for the Plaintiff
Mr J Mainavolau of the Attorney General's Chambers for the 1st; 2nd; 4th and 5th Defendants
Ms E Raitamata, Legal Officer of NLTB for the 3rd Defendant

DATE OF JUDGMENT: 30 October 2014

JUDGMENT

[1] The Writ of Summons was issued by Semisi Rokoua as the Plaintiff on behalf of himself and on behalf of Mataqali Vitadra of Yavusa Qawa of Bulileka, Labasa and sought the reliefs in the Statement of Claim against the Defendants.

[2] Background

2.1 As admitted by in the Pre Trial Conference, the following mattes are not in dispute.

2.2 The legal status of the 1, 2, 3, 4 and 5 Defendants are admitted.

2.3 From time immemorial, Native Fijians exercised full customary ownership of various areas of Fiji.

2.4 On 10 October 1874, Deed of Cession was executed between High Chiefs of Fiji and J B Thurston as representative of the Sovereign of Great Britain Her Majesty Queen Victoria.

2.5 The recognition was given Native Fijians ownership of their lands in their actual use and occupation or required for their probable future use; support and maintenance by the Clause 4 of the said Deed of Cession. It also recognized the ownership of European titles acquired bona fide and vested in the crown only lands other than the foregoing.

2.6 The parties agreed the Clause 4 of the Deed of Cession incorporated into the domestic laws of Fiji pursuant to Ordinance XV of 1875 (Land Claims) together with the subsequent amendments and the enactments, Ordinance XXI of 1880 (Native Land) and the subsequent amendments and the enactment and Ordinance IV of 1888 (Crown Land) with the subsequent amendments and enactments.

2.7 The Clause 5 of the said Deed of Cession was incorporated into domestic laws pursuant to Crown Acquisition of Land Act Cap 135.

2.8 The recognition of native Fijian ownership of their customary Lands and administration are currently administered pursuant to Native Lands Act (Cap 133) and Native Land Trust Act (Cap 134).

2.9 Prior to the Cession of Fiji, High Chiefs were exercising and tribal authorities over their independent domains known as "Vanua".

2.10 There were several other enactments enacted to give effect to Clause 4 of the Deed of Cession.

2.11 Deriving from Native Lands Ordinance No. XXI of 1880, the Administration of Native Lands now maintained under Native Lands Act of 1905 and Native Lands Trust Act of 1940 which provides that the Native Lands are inalienable except to the Crown.

2.12 It was accepted by the both parties under Clause 4 and 5 of the Deed of Cession, Native Land under Native Land Ordinance of 1880 was inalienable except to the Crown but only for public purpose.

2.13 The Crown under Deed of Cession (Clause 5) had expressed its undertaking not to take any other land except for public purpose and upon payment of reasonable compensation.

2.14 The Clause 4 of the Deed of Cession which was intended to look after the future use, maintenance and support of Native Fijians was transmitted to domestic laws of Fiji and now maintained under Section 18 and 19 of the Native Land Trust Act Cap 134 and Crown Lands Act Cap 132.

2.15 From time immemorial the Plaintiff's Mataqali had occupied the subject land as their native land on the basis of use and occupation.

2.16 The subject land was a Native Land and not subject to any claim of a Crown Grant by European settlers.

2.17 It was agreed all Native Lands are inalienable except to the Crown but only for the purpose of imperative public utility.

2.18 On 24 August 1917 under Council Paper No. 67 Crown again reaffirmed that it does not lay and claim to land unoccupied at the time of the Deed of Cession.

[3] Before proceeding to determine this matter, I make some observations on Fiji's Land Tenure. The Native Land Publication 1997 there are 3 forms of land tenure in Fiji, Freehold Land, State Land (Crown Land) and Native Land. Freehold Land is land owned by fee simple, State Land owned by the State or the Government (before it was Crown land), Native Land is beneficially owned by the Native Fijians and now held by the Native Land Trust Board (iTaukei Land Trust Board) in trust.

The majority of the lands in Fiji Islands are Native lands and such lands are owned by the indigenous people by way of a communal units (Clan) called as Mataqali. The Mataqali units were part of Yavusa (Tribe) and Yavusa consists of several Mataqali units. The head of the Yavusa is the Turaga ni Yavusa. The first family of sons in each Mataqali formed the various Tokatoka (family units).

[4] Issues to be Decided

4.1 As to whether the Plaintiff is a member of the Mataqai Vitadra of Yavusa Qawa and whether he has authority to initiate this action on behalf of the said Mataqali?

4.2 As to whether the Defendants had a fiduciary duty to protect the paramount rights and interests of Native Fijians over their customary land is similar to the proclamation in the Marshall Island cases and if so whether the present matter before the court falls within such category?

4.3 As to whether the Defendant in this case cannot dispose the land except for imperative public purpose, if so as to whether the Defendants should return all the land so acquired or to compensate the Plaintiff if the Defendants cannot return the land?

4.4 As to whether amendments made under Ordinance XI of 1905 which allowed native land owners to alienate native land by native was grant in breach of the terms of the Deed of Cession?

4.5 As to whether the land acquired under Ordinance No. 1 of 1905 by the Defendants are compelled to return to the Plaintiffs?

4.6 As to whether the 1905 Native Land Amendment allowed native land to be alienated which were acquired other than for public purpose was contrary to the Deed of Cession and crown fiduciary and therefore null and void and the land purported to be belonging to Mataqali Vitadra of Yavusa Qawa under Native Grant NG. 1 Folio 87 and subsequent dealings were contrary to the Deed of Cession and the Crown fiduciary and therefore null and void?

4.7 As to whether the Defendants should pay compensation with interest to the Plaintiff for the loss of earnings?

[5] Findings, Conclusions and Determination

The first issue is to be addressed by this court is the Plaintiff's locus standi. When the matter was taken up for Trial, the Plaintiff Semisi Rokoua was called to give evidence and I summarize the said evidence to determine the locus standi of Semisi Rokoua and Mataqali Vitadra.

5.1 He is a member of the Mataqali Vitadra and stated he was authorized to bring this action by Mataqali Vitadra.

5.2 The documents in the Agreed Bundle of Documents which listed members of Mataqali Vitadra (AI VOLA NI KAWA) was tendered marked in his evidence as "SP1".

5.3 When the letter of authority to the Plaintiff was tendered, it was found that the wrong letter of authority was in the Agreed Bundle of Documents which was tendered as "SP2". By the said letter of authority Navitalai Ratu was granted authority to institute action by the Mataqalis stated therein. However, the counsel for the Plaintiff sought Leave from the court to file the proper letter of authority and continue with the matter. In the interest of Justice, Leave was granted to produce the letter of authority which was produced through the witness as "SP23". Individual members of the Mataqali have no capacity to bring in an action since the owner of the land is a Mataqali unit. As such authority of the Mataqali members is a necessity to institute Legal proceedings.

5.4 There is no issue that this action was brought on behalf of the members of Mataqali Vitadra. For all purposes of this action, the Orders sought are benefit of all the members of the Mataqali. It is a matter to be decided after considering all the evidence whether the Mataqali Vitadra has any right on this land. As such the Defendants' submission to decide on the issue of the locus standi of the representative authorized to bring in this action is not an issue. The recording system of the members of Mataqali Vitadra (SP1) comparing with the (SP2) and (SP23) dates of birth of most of the members are not tallying. As such, the objection by the Defence carries no merits with regard to the locus standi of the Plaintiff's Representative Semisi Rokoua, where it contradicts in SP23 and SP1.

5.5 In my view this is a Class Lawsuit; all the members of the Mataqali Vitadra cannot file individual lawsuits considering their economic conditions which do not warrant them to meet the litigation costs. Class Lawsuits could provide solution to this economic obstacle by gathering individual claims together into a single lawsuit that supports the cost of litigation. There is no provision in Fiji for such class lawsuits and it is appropriate for the legislature to enact such law for the betterment of the public. For example class lawsuits are common in United States on consumer rights securities and anti-trust, environment, mass torts, civil rights etc. Apart from other reasons given in my Judgment, I consider this as a class lawsuit which can be accommodated by this court, for the benefit of the members of the Mataqali Vitadra.

5.6 Further, I also wish to draw my attention to Section 27, 28, 29 and 30 of the Constitution of Fiji 2013 of the Constitutional Rights which enumerate the protection to the iTaukei land owners and shutting out a matter on a preliminary issue without going into merits is contrary to the rights of iTaukei land owners.

5.7 Now this court has to take up the other issues in this case as to whether the Plaintiff had proved the claim to obtain the Orders sought in the Statement of Claim.

5.8 The following witnesses were testified before this court:

(i) Semisi Rokoua – for the Plaintiff;

(ii) Timoci Bulivakamatau – for the Plaintiff;

(iii) Paula maleaua – for the Plaintiff;

(iv) Ilaitia Navunisaravi – for the Defendant;

(v) Varanisese Vitala – for the Defendant.

5.9 I have taken into account the evidence of all the witnesses to determine this case:

(1) The land in question is a Native Grant 1/87 dated 14 April 1908 granted to the Colonial Secretary (SP10)

(2) The Plaintiff became aware that the land was taken away from his Mataqali. As per the NG 1/87 (SP10), the land known as Bulileka was sold and NG 1/87 was signed on 21 March 1908 by the Turaga ni Mataqali Semisi Tamanisotia who was regarded as the Head and Buli Labasa Viliame. The Plaintiff alleged purchase of the land happened before the Native Land Commission was established. Mataqali Qawa also known as Mataqali Vitadra (no evidence produced). The Plaintiff alleged that by Native Grant 1/87, the land belonging to Mataqali Vitadra was sold to the Colonial Secretary fraudulently by Turaga ni Mataqali, Semisi Tamanisotia Head of the Mataqali during that time.

5.10 I observe the Plaintiff's both witnesses failed to establish that the sale of Native Grant 1/87 was illegal. All the evidence led in this court was hearsay. There is no documentary evidence before me that the land belonged to Mataqali Vitadra at the time of sale or any material to say that Mataqali Qawa is known as Mataqali Vitadra.

5.11 During the cross examination, the Plaintiff agreed with the Defence counsel Mr Mainavolu that the Mataqali is a land owning unit and collection of Mataqalis forms a Yavusa. The Mataqali Vitadra one of the Mataqali's of Yavusa of Qawa. The Plaintiff was shown NG 1/87 (SP10) and it was the Sale and Purchase between Colonial Secretary and the land owners.

5.12 NG 1/87 and NG 1/89 were later amalgamated into one parcel of land and it is known as CT6611 which is now a free hold land and this was admitted by the Plaintiff in his evidence. The Plaintiff is claiming the rights on NG 1/87 Land in Extent 1754 Acres.

5.13 On perusal of the document (SP10), it states the land was sold by Mataqali Qawa. Nothing stated that the owner is Mataqali Vitadra. According to SP-1 Mataqali Vitadra is one land owning unit of Yavusa Qawa. However, the documents produced by the Plaintiff does not establish or prove that there was no Mataqali Qawa or the subject land was fraudulently sold by Mataqali Qawa to the Crown. The Plaintiff had alleged that the land was sold to the Crown fraudulently but I don't find any documentary evidence. All the evidence given by the Plaintiff pertaining to the fraud was hearsay. The first time allegation of fraud was made by the letter dated 30 August 2000 (SP12) written by Navitalai Ratu representing Mataqali Vitadra. This allegation was made after 95 years of the alleged fraud. The letter was addressed to Native Land Trust Board and no supporting evidence was produced. If there was fraud, the question arises why the Plaintiff waited for 95 years to make the complaint and there was no evidence to consider this as to a fraud.

5.14 According to SP13 Original Land Sales Report of Bulileka there is no evidence to say the land in question was purchased by the Government (SP10) from Mataqali Vitadra. In the said report on page 5:

"Bulileka (Pt) NH87

The land is known as Bulileka situated at Mataqali Qawa in the district of Labasa. NG87 has an area of 1754 acres. The area is more particularly described and delineated on survey plan M98.

NG87 was purchased from the natives of Mataqali Qawa for a consideration of £267-13-00. The deed of sale was signed on the 21st March 1908 by the Turaga ni Mataqali Mr Semisi Tamanisotia was regarded as the head and the Buli Labasa Mr Viliame.

According to the Native Commissioner that the natives had received their purchased money on the 20th February 1908.

On the 14th April 1908, the Native Commissioner issued NG87 to the then Colonial Secretary on behalf of Fiji Government.

On the 17th April 1908, NG87 was cancelled and CT XI/05 98 was issued over it.

On the 29th May 1941 CT XI/05 98 was cancelled and amalgamated with the land held under CT XI/05 100. Later CT 6611 was issued over the two areas to Director of Lands of Fiji. Now the land is developed and leased out to cane farmers by the state."

5.15 I consider this evidence as the proof of transaction in NG 1/87 of land called Bulileka (Part) in Extent of 1754 Acres Survey Plan No. M98 (SP13A) which was later amalgamated (SP13B) now in the Title CT 6611. This evidence is unchallenged and the Plaintiff failed to prove the land was owned by Mataqali Vitadra at the time of transfer of the land to the Colonial Secretary by Mataqali Qawa. There was no evidence before this court that there was a fraud at the time of execution of Native Grant 1/87. All the witnesses who gave evidence on behalf of the Plaintiff were trying to establish a fraud on hearsay evidence; which cannot be considered in this case.

5.16 The Plaintiff failed to establish by evidence:

(1) The Native Grant 1/87 was executed by Mataqali Qawa by fraudulent means.

(2) There was an existence of Mataqali Vitadra at the time of the execution of Native Grant 1/87 in 1908.

(3) The reasons for failure to make the Plaintiff's claim to Native Land Commission establish in 1927 which was established for the purpose.

(4) The Defendant established NG 1/87 is a document which was properly executed for a consideration of £267.13. Native Commissioner had confirmed natives had received their purchase money on 20 February 1908. No evidence to the contrary produced by the Plaintiff.

[6] Considering the reasons stated above and having analyzed the previous evidence, this court determines the Plaintiff failed to prove its case on balance of probabilities. The Plaintiff failed to prove there was a fraud in alienation of the land by Mataqali Qawa to the Colonial Secretary and/or that the Mataqali Qawa was not in existence in 1908 and/or Mataqali Qawa is also known as Mataqali Vitadra. The Plaintiff's claim does not fall within the ambit of Section 8 of the Crown Lands Act or Section 18(1) of the Native Lands Act for return of the land or to pay compensation.

[7] Accordingly, I make the following Orders:

(a) The Plaintiff's claim is dismissed;

(b) No order for as to costs.

Delivered at Suva this 30th Day of October 2014

......................
C. Kotigalage
JUDGE