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Natalatu v Registrar General [2022] FJHC 454; HBC132.2022 (28 July 2022)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION


HBC 132 of 2022


BETWEEN :

MELI NATALATU Retired School Teacher of Natalatu Village, Sabeto.

PLAINTIFF


A N D:

REGISTRAR GENERAL of Level 1, Suvavou House, Victoria Parade, Suva.

1ST DEFENDANT


A N D:

ATTORNEY GENERAL OF THE REPUBLIC OF FIJI Attorney General’s Chambers, Level 7, S, Suvavou House, Victoria Parade, Suva.
2ND DEFENDANT


Appearances: Mr. J. Boseiwaqa J. (Toganivalu Legal) for the Plaintiff
Mr. J. Mainavolau (Attorney-General’s Office) for the Defendants
Date of Hearing: 17 May 2022
Date of Ruling: 28 July 2022


R U L I N G


INTRODUCTION


  1. In Fiji, all i-taukei (native) lands are beneficially owned by kinship-based communal proprietary units (i-tokatoka or mataqali).
  2. While neither the i-Taukei Lands Act or the i-Taukei Lands Trust Act contain an express stipulation that membership and succession in these kinship groups must be patrilineal, the Acts are premised on the need to ensure that membership and succession in these kinships are based on custom as evidenced by usage and tradition.
  3. The Courts in Fiji have repeatedly said that i-TLC is required to perform its functions under these Acts in accordance with i-taukei custom as evidenced by usage and tradition (as per section 3 of the Act, as per Tuivaga CJ in Bulou Eta Kacalaini Vosailagi –v- Native Lands Commission and Others (1989) 35 F.L.R. 116 at page 130; see also Fiji Court of Appeal decision in Native Land Trust Board v Kaukimoce [2012] FJCA 17; ABU0043.2008 (21 March 2012).
    1. Hence, section 3 of the i-Taukei Lands Act stipulates that all i-taukei lands will be held by i-taukei people according to i-taukei custom and tradition. Section 3 then goes on to say that i-taukei people may cultivate, allot and deal with their land – as amongst themselves – according to their custom.

Tenure of i-Taukei lands by i-Taukei Fijians

3. i-Taukei lands shall be held by i-taukei Fijians according to i-taukei custom as evidenced by usage and tradition. Subject to the provisions hereinafter contained such lands may be cultivated, allotted and dealt with by i-taukei Fijians as amongst themselves according to their native customs and subject to any regulations made by the i-Taukei Affairs Board, and in the event of any dispute arising for legal decision in which the question of the tenure of land amongst i-Taukei 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.

  1. By and large, i-taukei communal units follow the patrilineal descent by custom and tradition.
  2. This has been the premise on which i-taukei children are registered into the Register of Native Births (Vola Ni Kawa Bula “VKB”).
  3. The Hutson Instruction 3 of 1926 provides as follows in its relevant part:

INSTRUCTIONS AS TO ENTRIES IN THE REGISTER OF NATIVE LANDOWNERS


3. Entries to be made in this Register can only be taken from the Register of Births and Deaths of the particular province to which this Register relates and from no other source whatsoever.


ORDER BY HIS EXCELLENCY THE GOVERNOR


These instructions for the keeping of accurate records in the Registers of Native Landowners have been carefully drawn up by the Chairman, Native Lands Commission. They should be printed in English and Fijian and bound with each volume.


These Registers are an invaluable part of the work of the Native Lands Commission, but they must be kept up to date with the greatest accuracy to retain their value as a record of the landowners and their estates.


Provincial Commissioners and Rokos are enjoined to accept and give effect thoroughly and regularly to their duty in this respect.


  1. As Wickramasinghe J said in In re Application for Judicial Review by Taniela Naika Varo [2011] FJHC 796; Judicial Review 02.2008 (8 December 2011)

[15] The procedure that should be followed in maintaining the VKB is laid down in 'Instructions as to entries in the Register of Native Lands Owners' dated 30 September 1926 issued by the then Governor of Fiji, Eyre Hutson , under reference MP 4089/26[5]. (Order) ..................


[16] Paragraph 3[6] of the Order of the Governor, sets the foundation for the registration in the VKB, which is based on the information maintained in the Register of Births and Deaths. It explicitly prohibits obtaining information from any other source whatsoever for its registration.


[17] Paragraph 6[7] and Paragraph 7[8] stipulate the manner in which the children of illegitimate birth should be registered when the father is known or unknown. When father is known, the illegitimate child should be registered under the father's Tokatoka whereas when the father is unknown then the registration should be done in mother's Tokatoka.


  1. It would appear then that, first and foremost, and as a general rule, the VKB is intended to be a register of multi-generational group of i-taukei relatives related by patrilineal descent. The primary reason for this is that this is in accordance with the custom and practice of i-taukei people.
  2. Accordingly, the Hutson Instruction, and perhaps all judicial pronouncements on the point, must all be read as being informed by, and as giving expression to, custom and practice – as intended by the legislature.
  3. Hence, the rule is that the appearance of an i-taukei father’s name on a child’s birth certificate is the primary reference point by which i-TLC will trace and determine the child’s patrilineage. A fortiori, this is the basis on which a child’s membership of the father’s i-taukei communal land-owing unit (tokatoka or mataqali) is determined (“birth-certificate rule”).
  4. Even an illegitimate child whose paternity is established is entitled to be registered under the father’s proprietary unit in the VKB. However, where paternity is not established, the child may still be registered in the mother’s proprietary unit. Hutson goes on to instruct as follows:
    1. Children of illegitimate birth should be entered in their father's tokatoka and the letter B set against their names in the column headed "Veika tale eso". To further distinguish this class of entry the names should be enclosed within the red brackets, thus "(Tomasi Madigi)."
    2. In cases where the father's name is unknown they should be entered in the mother's tokatoka marked B and, in the column headed "Tamana." The words father not known or the Fijian equivalent written.
  5. Section 21(1) provides as follows:

Illegitimate children to be tribal land-owners and recorded as such


21.-(1) notwithstanding anything contained in the Legitimacy Act all Fijians of illegitimate birth shall be deemed to be owners of native lands and may be recorded as may seem just and equitable as members of the proprietary units of either their father or mother.


THE EFFECT OF ALL THE ABOVE


  1. When all the above are taken together, the following basic points emerge:
  2. What if, an illegitimate child is registered under the mother’s landowning unit, but the father, who is not on the birth certificate, desires to have the child registered under his (father’s) landowning unit?
  3. The answer to the above is that – if the child’s father and mother are still alive – or the father is alive but the mother is deceased, then the father must first rectify the birth certificate by getting his name on the birth certificate. To get his name on the birth certificate, the father must come by way of section 16(1) of the Births, Deaths and Marriages Registration Act. Once the father’s name is entered on the birth certificate, it then becomes the reference point by which the i-Taukei Lands Commission will act to change the child’s VKB-registration from under the mother’s proprietary landowning unit to the father’s proprietary landowning unit. This is in accordance with the Hutson Instruction.
  4. In this case, the applicant is an illegitimate child whose parents are long deceased. He is in his senior years. He was registered in his mother’s proprietary unit all his life until recently when the i-TLFC registered him in his late father’s proprietary unit.
  5. This decision of the i-TLFC to register the child into his father’s proprietary unit is based on the fact that the father’s family and vanua have always acknowledged the child as family and also because the vanua has performed all protocol in accordance with custom and tradition to “re-claim” the child so to speak. Paternity has never been disputed.
  6. In other words, the i-TLFC in this case has not followed the birth certificate rule. The child, namely Meli Natalatu (“Natalatu”) now applies by Originating Summons to have his birth certificate changed as follows.

PRELIMINARY COMMENTS


  1. The birth certificate rule must always be adhered to strictly by the i-TLFC in terms of maintaining the VKB as per the Hutson Instructions. However, one must not loose sight of the fact that the whole purpose of the exercise is, at first instance, to preserve the integrity of the VKB as a register of multi-generational group of i-taukei relatives related by patrilineal descent.
  2. As the background to this case (see below) will show, a strict application of the birth certificate rule in the circumstances of this case would have been counter-productive in that it would have prevented the registration of the applicant in his father’s proprietary unit.
  3. Hence, the i-TLFC was entitled to exercise its discretion, in the particular circumstances of this case, to proceed with registering the applicant under his father’s proprietary landowning unit notwithstanding that the child’s birth certificate had yet to record his father.

APPLICATION


  1. The application before me is an Originating Summons filed on 28 April 2022 by the Plaintiff, Meli Natalatu (“Natalatu”). He seeks the following orders:

are also entitled to have their original birth certificates corrected to reflect the Plaintiff’s landowning unit, namely, Yavusa Sabutoyatoya, Mataqali Elevuka and Tokatoka Navicavaki.


  1. The application is filed pursuant to Order 7 Rule 2 of the High Court Rules 1988, the inherent jurisdiction of the Court, and under the common law.
  2. It is supported by the following affidavits.
DEPONENT
DATE SWORN
Ratu Eparama Kitione Tavaiqia
09/02/22
Ratu Iliesa Cebaivalu Namuaira
11/02/22
Meli Natalatu
18/02/22

  1. The Office of the Registrar General has filed an affidavit of Neel Singh sworn on 30 June 2022.
  2. Singh is the Registrar for Births, Deaths and Marriages at the Ministry of Justice. Singh apparently has received an application from the applicant’s solicitors. His office will abide by any fair orders of the Court (as per paragraph 15 of his affidavit).
  3. Notably, a letter written by Singh on 09 March 2022 summarizes his position as follows:

9 March 2022


By email: ovalaublue@gmail.com


Mr. Graham Leung

Toganivalu Legal

Barristers & Solicitors

22 Johnson Street

Toorak

Suva


Dear Mr. Leung


Meli Natalatu


  1. We refer to your 7 February 2022 letter in regards to the above subject matter (‘letter’) seeking the Registrar-General to add the father’s details in the birth certificate of Mr. Meli Natalatu (‘Mr. Natalatu’).
  2. We note the following from your letter and attachments:
    1. Mr. Natalatu was born out of wedlock and his birth certificate only contains his mother’s details.
    2. The current Tui Vuda Ratu Eparama Kitione Tavaqia has acknowledged Mr. Natalatu as his brother, Ratu Ilijia Vuivuda’s (‘Mr. Vuivuda’), son in a traditional ceremony, which has been recognized by the i-Taukei Lands Commission (‘Commission’).
    1. Mr. Natalatu’s mother passed away and so has Mr. Vuivuda; and
    1. Mr. Natalatu now intends to add his father’s details on his birth certificates and submits that Mr. Vuivuda was his father.
  3. In response, the law governing the inclusion of father’s particulars after registration of the birth of an illegitimate child is contained in Section 16 (2) of the Births, Deaths and Marriages Registration Act 1975 (“Act”). The said section states as follows:
  4. Please note the above section highlights that the request to enter in the register the name or any other particulars relating to the father must be made by the mother and the person acknowledging himself to be the father or the father only in the even the mother is dead or cannot be found.
  5. Given that both, Mr. Natalatu’s mother and Mr. Vuivuda are deceased, we note that the requirements under Section 16 (2) of the Act cannot be met and therefore, we cannot add the father’s details in the birth certificate of Mr. Natalatu.
  6. Should you need any clarification, please contact the undersigned via email neel.singh@justice.gov.fj or the Deputy Registrar – General on email msotutu@justice.gov.fj

Thank you.


Sgd: Neel Singh

Registrar General


BACGROUND


  1. Natalatu is a retired school teacher. He was born on 5 May 1955. He is also known as Meli Natalatu Tora or as Meli Tora. His birth registration number is 711329.
  2. Natalatu’s mother was Reama Nai. She was from Natalau Village, in Sabeto, Nadi. His father was Ratu Ilaijia Vuivuda of Viseisei Village in Vuda. They are both now long deceased.
  3. Because Natalatu was born out of wedlock, he was registered in the Vola ni Kawa Bula (‘VKB’) under his mother’s mataqali Nabilia. This registration is recorded also in his original birth certificate.
  4. Natalatu was raised by his maternal grandparents. His maternal uncle, the late Mr. Apisai Tora, also played a major role in raising him.
  5. Natalatu has always resided in his mother’s village of Natalau in Sabeto in Nadi. However, he was always aware of his paternal connection to Viseisei village in the Vanua of Vuda.
  6. No one has ever raised any issue or disputed that the late Ilaijia Vuivuda was Natalatu’s father. The people and Vanua of Vuda, his father, and his father’s close and immediate family, have always known of Ratu Meli and acknowledged him as family.
  7. The position of paramount chief of the Vanua of Vuda is held under the title of Tui Vuda. The current Tui Vuda, Ratu Eparama Kitione Tavaiqia (“Tui Vuda”), is Ratu Meli’s paternal uncle.

i-KWALI – THE TRADITIONAL LEGITIMATION PROTOCOL


  1. As the term is commonly understood, legitimation is the legal process which grants parental rights to the biological father of a child born out of wedlock. It is the only way, besides marrying the mother of the child, for a father to establish a legal relationship with his child.
  2. Legitimation may occur if the mother and the father sign an Agreement whish records their mutual consent. This agreement is usually called an Acknowledgement of Legitimation.
  3. However, if the mother disputes legitimation and does not wish to sign an Acknowledgement of Legitimation, the father may petition the Court under section 5 of the Legitimacy Act (see Ah Chuck v Needham (1931) NZLR 559); Dredge v Dredge [1947] 1 All ER; Ainan Bin Mahamud v Syed Abu Bakar Bin Habibyusoof: [1939] 1 MLJ 209).
    1. In i-taukei societies in the Western part of Viti Levu, the i-kwali is the traditional customary protocol where legitimation may be carried out. As happened in this case, the child’s paternal family and landowning unit will perform the i-kwali by formally approaching the child’s maternal family and landowning unit to “wean” the child so to speak off dependency on his or her “adoptive” family and to formally seek the child’s return and restoration to his or her rightful family and landowning unit.
    2. On 30 December 2020, the Vanua of Vuda led by the Tui Vuda, went to Natalau village to perform the traditional ceremony of i- kwali.

i-TLFC RECOGNISES THE i-KWALI CEREMONY


  1. The Roko Tui Ba, Rupeni Kunaturaga, was allegedly also in attendance at the i- kwali ceremony as representative of the i-Taukei Lands & Fisheries Commission. The plaintiffs submit that Kunaturaga amended the i-TLFC records accordingly at the ceremony.
  2. The affidavits filed for Nalatatu depose inter alia that:
  3. There is no affidavit filed by the i-TLFC to either verify or refute this. However, there is a letter dated 25 July 2022 by the Permanent Secretary for i-Taukei Affairs which states as follows:

Attention: Mr. Josefa Mainavolau


1. This is in response to your memo dated 22 July 2022 on the above subject and the questions posed by the Court for TLFC to address.


2. Questions & Answers.


Q. Can TLFC confirm if there was a ‘na ikwali’ ceremony held at Natalau village on 30 December 2020 at 2pm and if the ceremony was attended by the chiefs and people of Vuda?

A. Yes TLFC confirms that the ‘ikwali’ ceremony was performed at Natalau on 30 December 2020 and attended in numbers by the people of Vuda led by the Turaga na Tui Vuda himself.


Q. Was the Roko Tui Ba present in the ‘na ikwali’ ceremony?

A. Yes the Roko Tui Ba and his Senior Assistant Roko Tui was also present to witness the ‘na ikwali’ ceremony.


Q. Has the TLFC made changes to the Vola ni Kawa Bula to reflect the verification of legitimacy for the plaintiff and his children?

A. Yes, TLFC has made the changes to the VKB after conducting an independent formal inquiry into the matter. The Plaintiff and his children are now registered under the Tokatoka Navicavaki, Mataqali Eluvuka, Yavusa Sabutoyatoya of Vuda in the VKB after being transferred from Tokatoka Natuaniyarawa Mataqali Nabilia, Yavusa Waruta of Natalau, Sabeto.


Q. Was the TLFC satisfied with the customs, protocols and procedures followed in the affirmation of legitimacy of the Plaintiff and his children?

A. Yes the TLFC has enquired, ascertained and was satisfied with the customs, protocols and procedures followed in the affirmation of the legitimacy of the Plaintiff and his children.


  1. Respectfully submitted for your further actions

Sgd. Apimeleki Tola

for Permanent Secretary for iTaukei Affairs


RATU MELI APPLIES TO HAVE HIS BIRTH CERTIFICATE CORRECTED


  1. On 28 January 2022, Ratu Meli applied to the Registrar General’s office in Lautoka to have his birth certificate corrected so that it properly identifies and records Ratu Ilaijia Vuivuda as his father and, flowing from that, to then include his name in the relevant traditional i-taukei landowning unit.
  2. However, the Registrar-General’s Lautoka office declined his application. The officer involved advised that the law did not permit any correction such as the one which Ratu Meli was applying for, without the father’s consent (see Singh’s affidavit above).
  3. On 4 February 2020, Ratu Meli attended the Registrar General’s office in Suva to seek his approval to amend and correct his birth certificate. However, the Registrar-General again declined Ratu Meli’s request. The Registrar maintained the position that Ratu Meli’s father’s consent is mandatory and if that was impossible to attain by reason of the fact that he is long deceased, a Court Order was required to amend his birth certificate.

THE LAW


Births, Deaths and Marriages Registration Act


  1. Section 16(1) of the Births, Deaths and Marriages Registration Act concerns the registration at or around the time of birth of an illegitimate child.
  2. The section does three things. First, it does not require the father to give information concerning such birth. Second, it forbids the Registrar from entering in the register the name of any man as father. Third, the only way that a man may be entered as father of such child on the register is if both the mother and the man who acknowledges himself to be the father, make a written request in the prescribed form.

Illegitimate births


16. (1) In the case of the birth of an illegitimate child, no person shall, as the father of such child, be required to give information concerning such birth, and a registrar shall not enter in the register the name of any person as father of such child except on the written request of both the mother and of the person acknowledging himself to be the father, and such person shall, together with the mother, sign the register or the registration form furnished.


  1. Section 16(2) makes provision as to how the particulars of a man who acknowledges himself to be the father of an illegitimate child – may be registered by the Registrar, where the child’s birth is already registered.

(2) If, at any time after registration of the birth of an illegitimate child, the Registrar is satisfied by statutory declaration or such other evidence as he may deem sufficient that both the mother and the person acknowledging himself to be the father require the name of or any other particulars relating to the father to be entered in the register, the Registrar may enter in the register the particulars required to be entered as aforesaid:


Provided that-

(a) in any such case it shall not be necessary for the person acknowledging himself to be the father to sign the register; and

(b) if the mother is dead or cannot be found, it shall be sufficient if the request is made by the father alone.


  1. Clearly, the above cannot apply in this case as both the mother and the father are long deceased.

Legitimacy Act


  1. Section 5(1) of the Legitimacy Act, in its relevant part, provides as follows:

Declarations of legitimacy of legitimated persons


5. (1) A person claiming that he ... has become a legitimated person may...... apply by petition to the Supreme Court ... for a decree declaring that the petitioner is the legitimate child of his parents, and the Supreme Court shall have jurisdiction to hear and determine such applications and to make such decree declaratory of the legitimacy or illegitimacy of such person as to the Court may seem just, and such decree shall be binding to all intents and purposes on Her Majesty and on all persons whomsoever.


  1. Clearly, Natalatu is entitled to apply under section 5 if he claims that he has become legitimated.
  2. The next question I ask is – whether he has indeed become legitimated?
  3. I answer “yes” for three reasons. Firstly, the i-kwali, as I have said, is a customary form of legitimation. Secondly, in this case, the i-kwali has been performed not only by Natalatu’s immediate family, but also by the entire Yavusa and vanua of Vuda led by the Tui Vuda, the paramount chief of Vuda who also happens to be Natalatu’s paternal uncle. Thirdly, the i-TLFC has acknowledged the i-wali and amended its records in the VKB accordingly.
  4. On the above basis, I am satisfied that Natalatu is entitled to apply under section 5 of the Legitimacy Act for a declaration that he is the son of the late Reama Nai and the late Ratu Ilaijia Vuivuda.
  5. While Natalatu is already registered in his father’s (the late Ratu Ilaijia Vuivuda’s) landowning proprietary unit, and is entitled to have the late Ratu Ilaijia Vuivuda registered on his birth certificate as his father, the next question I ask is whether Natalatu’s birth certificate should record that he is the legitimate son of the late Ratu Ilaijia Vuivuda.
  6. The distinction between a “legitimate” and “illegitimate” child is commonly understood to be that the former is born within wedlock while the latter is born out of wedlock. While this distinction is irrelevant in terms of an i-taukei child’s entitlement to be registered under his or her father’s landowning (see section 3 of the i-Taukei Lands Act), nothing has been placed before me to convince me that I have the powers under the Births, Deaths and Marriages Registration Act 1975 to declare that Natalatu is the legitimate son of Ratu Ilaijia Vuivuda.
  7. However, I have the jurisdiction under section 5 of the Legitimacy Act, taking into account the fact that the i-TLFC has already exercised its powers under the Taukei Lands Act to register Natalatu under his father’s proprietary unit following the i-kwali, to declare the legitimation of Natalatu and accordingly, to direct the Registrar General to amend Natalatu’s birth certificate accordingly.

ORDERS


  1. I grant the following Orders:
    1. I DECLARE that the Plaintiff MELI NATALATU is the son of ILAIJIA VUIVIDA otherwise known as RATU ILAIJIA VUIVUDA.
    2. I DECLARE that the Plaintiff MELI NATALATU is entitled to be legitimated under the Schedule of the Legitimacy Act 1932 and section 21 of the iTaukei Lands Act 1905.
    3. I DIRECT the Registrar of Births to update and correct the original birth certificate of the Plaintiff MELI NATALATU with the addition of his father’s name ILAIJIA VUIVIDA and his father’s, Yavusa Sabutoyatoya, Mataqali Elevuka, Tokatoka Navicavaki.
    4. I DECLARE that the Plaintiff’s children whose names and details appear below, are also entitled to have their original birth certificates corrected to reflect the Plaintiff’s landowning unit, namely, Yavusa Sabutoyatoya, Mataqali Elevuka and Tokatoka Navicavaki.
      • (a) Amueli Radrovi Tora born on 11th July, 1984;
      • (b) Loata Lagakali Tora born on 18th February, 1986;
      • (c) Meli Natualeita Tora born on 29th December, 1996;
      • (d) Reama Naikuru Senimokosoi Tora born on 24th December, 1998.

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

Anare Tuilevuka

JUDGE

Lautoka


28 July 2022

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