Dawai v iTaukei Land Trust Board [2016] FJHC 275; HBC240.2012 (15 April 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC No 240 of 2012

BETWEEN:

LAISE KACILALA DAWAI
PLAINTIFF

AND:

ITAUKEI LAND TRUST BOARD
DEFENDANT

RULING

BACKGROUND

1. Ms. Laisa Kacilala Dawai ("Laise")is the surviving spouse of the late Ratu Napolioni Naulia Dawai ("Ratu Napolioni"). Ratu Napolioni died intestate in October 2008. Laise is the administratrix of Ratu Napolioni's estate.
   
2. Ratu Napolioni was installed as Tui Nadi in 1994. The Tui Nadi is the title of the paramount chief of Nadi. For many years, the title had been in dispute between two separate lineages which are blood-related.
   
3. Ratu Napolioni was installed as Tui Nadi by a faction of the people of Nadi who recognised him as the right person in his lineage to hold the Tui Nadi title. Shortly after Ratu Napolioni was installed, a rival faction "loyal" to the rival lineage, installed one Ratu Isireli Rokomatu as Tui Nadi.
   
4. For many years thereafter, the people of Nadi were divided over the question as to which of the two lineages had a better and a stronger claim to the Tui Nadi title.
   
5. Notably, the i-Taukei Lands Commission ("i-TLC")) which is the body established under the Native Lands Act to resolve such disputes, has maintained right throughout in its many deliberations on the issue, that the lineage of which Ratu Napolioni was a descendant, and installed as Tui Nadi, is the rightful one out of which the Tui Nadi is to be appointed.
   
6. Many judicial review applications were filed to challenge the decisions of the i-TLC. Some civil actions were also filed. All of these hinged one way or another on the basic question – which of the two lineages is the rightful one.
   
7. Notably also, the Courts have, right though, been unwavering in their position that the i-TLC, and the i-Taukei Lands Appeals Tribunal ("i-TLAT")which is the appellate body established under the Native Lands Act, are the appropriate forums to determine and settle all such disputes.
   
8. A review of the many Court decisions will show that the rival faction has been adamant and unrelenting in its position that its lineage has a better claim to the Tui Nadi title.
   
9. I am aware of the fact, and of which fact I take judicial notice, that in December 2011, the i-TLC ruled yet again, in favour of the same lineage out of which Ratu Napolioni had descended. That decision was appealed to the i-TLAT by the rival faction. In June 2013 the i-TLAT would affirm thei-TLCdecision.
   
10. Suffice it to say that it is common ground between the parties that the issue, as between the two lineages, is now settled once and for all. If I may just say so at this time, by the time the i-TLC settled the issue in June 2013, Ratu Napolioni had been dead for some five years or so.
    

"FREEZING" OF MONIES PAYABLE TO TUI NADI

11. At this juncture, let me just say that in RATU ISIRELI ROKOMATU –v- JOSEVA SARONICEVA & ORS(HBJ NO. 21 OF 1997) which was one of the earlier judicial review application filed by the "rival" faction, Mr. Justice Townsley had ruled inter alia as follows on 16 March 2000:
    

That an injunction issue against the 2nd and 4th Respondents their servants or agents or otherwise, howsoever debarring them from paying any monies or benefits payable to the holder of the office of Tui Nadi to any person until further orders of an appropriate Court.

12. The above, in fact, wasa mandatory injunctive Order against the i-TLTB not to release any monies or benefits due to the Tui Nadi until the rightful holder of the title is conclusively determined.
    
13. Pursuant to the Townsley J-injunction, the i-TLTB, for many years, actually "froze" the payments. However, when the new Rent Equal Distribution Decree came into force on 01 January 2011, the i-TLTBpaid out the frozen monies to the landowners in terms of the revised scheme of payment that the Decree introduced. The plaintiff is not aggrieved about the Rent Equal Distribution Decree. Her main point of grievance is about the fact that when the Decree came into being, the i-TLTB, actually paid out that portion of the monies that had actually accrued to Ratu Napolioni but which the i-TLTB had withheld pursuant to the Townsley J-injunction.
    

COMMENTS

14. Laise claims in her capacity as administratrix of the estate. Her claim presupposes that the monies held by the i-TLTB form part of the personal estate of Ratu Napolioni and therefore, the estate is entitled to be paid whatever amount would have been due to him during the time when he was installed as Tui Nadi until the time of his death.
    
15. Section 2 of the Succession, Probate & Administration Act (Cap 60) defines "personal estate" as follows:
    

"personal estate" means the personal property of a deceased person and extends to leasehold estates and other chattels real, and also to all other property whatsoever which, ........, devolved by law upon an executor or administrator, and to any share or interest therein;

(my emphasis)

16. The question to ask is whether the monies, whilst they are being held by the i-TLTB, can be said to be the personal property of Ratu Napolioni such as to devolve by law upon Laise in her capacity as administratrixin terms of sections 5 and 6 of Cap 60.
    

ANALYSIS

17. I start with the comment that all native lands in Fiji are communally owned in terms of section 3 of the Native Lands Act (Cap 133):
    

Tenure of native lands by Fijians

3. 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.)

18. All rents and purchase monies derived from the leases and licenses in respect of native lands are distributed "in the manner prescribed", as per section 14 of the Native Lands Trust Act:
    

Distribution of rents and purchase money

14. -(1) Subject to the other provisions of this section, rents and premiums received in respect of leases or licences in respect of native land shall be subject to a deduction of such amount as the Board may from time to time determine not exceeding 25 per cent of such rent or premium, which shall be payable to the Board as and for the expenses of collection and administration, and the balance thereof shall be distributed in the manner prescribed.

19. The manner by which the balance of rents and premiums are distributed has always been prescribed by regulation.
    
20. Regulation 11 of the Native Land Trust (Leases & Licences) Regulations, for many years, prescribed the manner in which the rents and purchase monies were distributed[1] until it was repealed by Regulation 2(a) (1) of the Native Land Trust (Leases & Licenses) (Amendment) Regulations 2010 which states:
    

"After deduction of any sums in accordance with section 14 of the Act the balance of any monies received by the Board by way of rents and premiums in respect of native land, including any monies received by the Board but not yet distributed at date of commencement of the Native Land Trust (Leases and Licences) (Amendment) Regulations 2010 shall be distributed by the Board to all of the living members of the proprietary unit in equal proportions."

21. In the old Regulation 11 scheme (see footnotes), the proprietary unit was allocated 70% of the balance monies whilst the turaga-ni-mataqali, turaga-ni-yavusa and the turaga-i-taukei received 15%, 10% and 5% respectively.
    
22. Under the new scheme, all living members of the proprietary unit share the balance in equal proportions, regardless of their position in the traditional i-taukeihierarchy.
    

Why i-TLTB Released The Monies?

23. A memorandum dated 30 May 2013 by the Accountant Landowner Affairs of i-TLTB, namely Mr Luke Mayaexplains why the i-TLTB release the monies:
    

1. ........................

2. ...we confirm that the total Tui Nadi entitlements (TM, TQ and TT) shares that were frozen by the Board prior to the implementation of the new Rent Equal Distribution Decree on 28th January 2011 was $596, 804. 10.

3. As you might be aware, the actual decree was effective from 01 January 2011 (Refer annexure B for a copy of GM's update to the general public on the same).

4. Further note that the breakdown of the above sum ($596, 804. 10) in terms of TM, TQ and TT are as follows:

DU Title	DU ID	Amount
TM Navatulevu TK# 39-43	1338	$111,391.27
TQ Navatulevu TK# 39-50	6725	$175,432.10
TT Tui Nadi	8010	$309,980.73

24. In the last paragraph of Mr Maya's memorandum, he explains:
    

"... we believe that the main reason why the frozen funds for the (Tui Nadi) was released was because the Board was just complying with the Equal Distribution Decree as it clearly stated that any "held funds" be distributed equally to all surviving members of a landowning unit, ...

i-TLTB Submissions

25. The i-TLTB submits as follows:
    

The Descendants of the late Tui Nadi As Registered Members of the Landowning Unit.

In paragraph 3 of the Applicant's Affidavit in Support of the Originating Summons, the Applicant lists the four children of the marriage union with the late Tui Nadi. The said children are automatically members of the landowning unit by birth and are entitled to the distribution of the monies referred to in the Respondent's Supplementary Affidavit.

Previously the distribution of monies was paid out to members of the landowning unit aged 21 years and over and registered in the Vola ni Kawa Bula. But under the new regulations infants registered in the Vola ni Kawa Bula are also entitled to monies owing to the landowning unit. Therefore, the children of the late Tui Nadi and the Applicant herein abovementioned are also entitled to monies owing their landowning unit rightfully by birth.

Does the Applicant Have Locus Standi as an Administratrix?

However the proceedings commenced herein by the applicant as the Adminstratrix of the estate of the late Tui Nadi seem to construe that the monies payable to the chiefly title of Tui Nadi are part of a personal estate that can be pursued by an Adminstratrix in this case.

We are of the view that this application is misconstrued as such monies are clearly payable to living members of the proprietary or landowning unit. This is pursuant to the Native Land Trust (Leases & Licenses) (Amendment) Regulations 2010 which under section 2(a)(1) states:-

.....................

In compliance with the above amendment(s) the Board has duly communicated the effects of the amendments to the various landowning units as stated in its Supplementary Affidavit. Furthermore the records of the said payments or disbursements are also detailed in the said Supplementary Affidavit. In addition to this and in anticipation of the outcome of the litigation matters pertaining to the late Tui Nadi the Board is accumulating funds owing to the chiefly title of the Tui Nadi awaiting the outcome of the said litigation.

The Applicant could perhaps pursue or trace the monies owing to her children already paid to the landowning units on 7th March 2011 to discover whether the equal shares owing to the children were paid out to them as well. The reason is that the monies are paid out to the landowning unit's bank accounts and individual disbursement is conducted by the appointed trustees of the same.

In applying the amendments under the Native Land Trust (leases & Licences) (Amendment) Regulations 2010 which under section 2(a)(1) abovementioned it appears that the intention of the amendment is to disburse all monies held in trust by the Respondent with effect from January 2011. In doing so, this defeats the Applicant's cause of action herein as all monies held in trust are disbursed to the relevant landowning units. Thus as stated above the remaining option for the Applicant and the children of the marriage is to trace their entitlement with their landowning unit.

26. An affidavit of Timoci Vunisina sworn on 02 May 2013 captures the issues at various points as follows:
    

16. ..... Ratu Napolioni Naulia Ragiagia Dawai was installed as Tui Nadi. As to the issues surrounding his entitlement per se, the facts are denied as there is a significant difference between an iTaukei person's personal entitlement and the entitlement owing to an itaukei title. There is a clear difference on that issue. Furthermore the installation of the Tui Nadi is carried out by the vanua and not the TLFC. The TFLC's role is to endorse or refuse to acknowledge the validity of the person(s) claim to the iTaukei title.

17. .....how [are] monies payable to an iTaukei title .... payable to the iTaukei person? How does monies owing to an iTaukei title become part of a deceased iTaukei person's personal estate? As to the assertions that such monies are held in the custody of the Respondent the Applicant is put to strict proof of the same. I am verily informed that pursuant to iTaukei Land Trust (Leases & Licences) Amendment Regulations 2010 all such monies held in trust for the Tui Nadi have been disbursed to the various mataqali and tokatoka to whom such monies are due. The Applicant is put to strict proof of any such monies that are held in trust by the Respondent from the said time period the previous Tui Nadi held the same title.

18. .....the Respondent questions the legal basis from which monies payable to an iTaukei title automatically translates as monies of a deceased's personal estate?

19. ..... monies claimed by the Applicant are payable to the landowning unit as monetary returns from leases for lands registered to the iTaukei landowners. It is also established that monies owing to iTaukei titles are payable to the living holder of the iTaukei title. Such monies are not viewed as personal property as the origins of such entitlement are towards iTaukei landowners and iTaukei title holders. The Applicant must proceed further with this significant difference clearly in mind. As it is the Applicant is possibly proceeding with frivolous and vexatious litigation.

20. .....The payment of monies from iTaukei leases or payments to iTaukei title holders follow clear procedures and there is a register of the members of the mataqali or landowning unit who can lay claim to monies from iTaukei leases and sundry. The Applicant's motive to claim monies owing to an iTaukei title as an Administratrix of the personal estate is questioned herein.

21. ..... the Plaintiff's view that monies owing to a landowning unit and/or iTaukei title can be dealt with as personal property or personal estate per se is erroneous and the Plaintiff's application herein is frivolous and vexatious.

27. As I understand Mr. Nacolawa's submissions, the monies held by i-TLTB for the Tui Nadi title was already immediately payable to the late Ratu Napolioni at the time when he was alive. The monies were his "income". They formed part of his personal estate and should devolve by law to Laise in her capacity as the personal representative of the estate.
    
28. Therefore, the i-TLC and the i-TLAT decisions, in affirming the lineage of which Ratu Napolioni was a descendant, merely affirm that the monies, which were payable to the Tui Nadi title holder, but which were "frozen" by the Townsley J-injunction during Ratu Napolioni's time as Tui Nadi, are still part of his personal estate.
    
29. I cannot agree with that submission. To uphold that submission is to say that the old Regulation 11 scheme should be applied in this particular instance, notwithstanding the 2010 Decree.
    
30. In my view, the words
    

"...including any monies received by the Board but not yet distributed at date of commencement of the Native Land Trust (Leases and Licences) (Amendment) Regulations 2010 shall be distributed by the Board to all of the living members of the proprietary unit in equal proportions.

as they appear in the 2010 provision - are a clear stipulation that all monies "received by the Board but not yet distributed" as of 01 January 2011 shall be distributed to all of the living members of the proprietary unit in equal proportions".

31. The monies that the i-TLTB was holding pursuant to the Townsley J-injunction was "monies received by the Board" in terms of the 2010 Decree. At the commencement of the Decree on 01 January 2011, those monies had not been distributed because of the Townsley J-injunction. The decree directed that the monies henceforth, be distributed to all of the living members of the proprietary unit in equal proportions. This was what the i-TLTB did.
    
32. Since Ratu Napolioni was, then, no longer a "living member of the proprietary unit", he was not entitled to any share at the time the 2010 Decree came into force.
    
33. In my view, the same would apply even if the old section 11-scheme had not been repealed by the 2010 Decree. In other words, the issue here is not about whether the new scheme disentitled Ratu Napolioni in any way from what he would otherwise have been entitled to under the old scheme. If that had been the issue, the answer would have been the same anyhow.
    
34. Rather, the case is about whether monies held by the i-TLTB form part of the personal property of a member of a proprietary unit and, accordingly, whether the personal representative of a deceased member of the proprietary unit can claim for such monies from the i-TLTB.
    
35. In that regard, I agree entirely with the submissions of the i-TLTB. Accordingly, I dismiss the plaintiff's application. No order as to costs.
    
36. I need to comment here though that the i-TLTB should have at least had the courtesy, before distributing the monies pursuant to the 2010 Decree, to formally apply to Court to dissolve or set-aside the Townsley-J injunction.
    

Anare Tuilevuka
JUDGE

15 April 2016

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^[1]Regulation 11 provided:

Distribution of balance of rents and purchase-monies

11.-(1) After deduction of any sums in accordance with section 14 of the Act, the balance of any monies received by the Board by way of rents and premiums in respect of native land shall be distributed by the Board as follows:-

(a) to the proprietary unit, seventy per cent;

(b) to the turaga ni mataqali, fifteen per cent;

(c) to the turaga ni yavusa, ten percent; and

(d) to the turaga i taukei, five per cent.

(2) Where the Board has determined that any purchase monies received in respect of the sale or other disposition of native land shall be distributed, after the deduction therefrom of any expenses incurred by the Board in respect of such sale or other disposition, the balance thereof shall be distributed in accordance with paragraph (1).

(3) Where there is more than one division or subdivision of the people within the same proprietary unit, the turaga of the same status shall share equally the sum payable to them under paragraph (1) irrespective of whether or not any other sum is payable to any of them under that paragraph in their capacity as turaga of any other division or subdivision within such proprietary unit.