Nagata v Native Lands Commission [1991] FJLawRp 11; [1991] 37 FLR 97 (12 August 1991)

[1991] 37 FLR 97

HIGH COURT OF FIJI

MAIKELI NAGATA

v

(1) THE NATIVE LANDS COMMISSION
(2) NATIVE LAND TRUST BOARD
(3) RATU MELI NAEVO

[HIGH COURT, 1991 (Byrne J), 12 August]

Civil Jurisdiction

Native Land - whether customary grant of right to use and occupy land in common subject to a reversionary interest confers on the occupiers all rights of ownership subject only to the reversion - Native Lands Act (Cap 133); Native Land Trust Act (Cap 134).

The Tui Nawaka claimed that his ancestor's grant of land subject to a right of reversion did not give the present occupiers the right to retain profits derived from the use of the land. The High Court HELD: full rights of ownership in common and not merely rights of lessees or licensees had been granted subject only to the reversionary right.

Case cited:

Serupepeli Dakai & Others v The Native Land Development Corporation & Others (Suva H.C. 542/79)

Action for declaratory judgment in the High Court.

R. Matebalavu for the Plaintiff
Ratu J. Madraiwiwi for the First Defendant
N. Nawaikula for the Second Defendant
E. Tavai for the Third Defendant

Byrne J:

This case centres on a dispute over a large area of native land comprising approximately 2487 acres in the area of Ba and known as "Namulomulo Town Lands", which I shall henceforth refer to as "the land". The dispute involves the villagers of Namulomulo being members of Yavusa Saumata and represented by the Plaintiff on behalf of himself and various other native land owners, members of the various sub-division of Yavusa Saumata, and Mataqali Nalagi represented by the Third-named Defendant.

The First-named Defendant is a body corporate established under the Native Lands Act, Cap. 133 and is charged with the duty of ascertaining lands within Fiji that are the rightful and hereditary property of native owners and determining the rightful native Fijian proprietor of such lands.

The Second-named Defendant is a body corporate established under the Native Land Trust Act, Cap. 134 and is vested with the control of all native lands including the authority to administer such land for the benefit of Fijian owners. In the exercise of such authority the Board's functions include those of determine and distributing rent to the rightful native Fijian recipient of such rent.

The Third-named Defendant holds the Chiefly title, Tui Nawaka and as such is the head of the traditional state (Vanua) of Nawaka which constitutes the largest district (Tikina) in the Province of Ba. The Vanua of Nawaka comprises 12 yavusas or tribes one of which is the Yavusa Saumata residing at Namulomulo Village.

By Originating Summons dated the 8th of May 1990 the Plaintiff seeks declarations:

(i) that the legal ownership of the Namulomulo Town Land vests fully and exclusively in the several Mataqalis of the Namulomulo Village as owners-in-common;

(ii) that the legal ownership of the Namulomulo Town Land vests fully and exclusively the Namulomulo villagers as owners-in-common;

(iii) that the proper and lawful payee of all the rent in respect of the Namulomulo Town Land is the Namulomulo villages as members of the several Mataqalis within the villages who are owners-in-common of the land.

The Plaintiff also seeks an order for Mandamus to compel the Native Lands Commission to abide by its own decision vesting the ownership of the land in the several Mataqalis of Namulomulo Village as owners-in-common and to compel the Commission to direct the Native Land Trust Board to pay all rent due from the land or any part thereof to the Namulomulo villagers exclusively and that the Native Land Trust Board shall consult with only the Namulomulo villagers in respect of land dealings relating to the land. The Plaintiff also seeks an Injunction restraining the Native Land Trust Board from paying out all rent in respect of the land which is in the possession and custody of the Native Land Trust Board pending the adjudication by the Court of the Land Title issue, further and other relief deemed just by the Court and costs.

Before I commenced the hearing of this case I expressed the opinion to counsel that it might be better for a Fiji-born Judge to adjudicate on the matters raised by the Summons but first, this was not possible for practical reasons at the time and secondly, in any event, the parties wished me to remain seized of the matter. Although I have regarded the task given me as somewhat daunting, in the end it appears that really my decision must be based on the interpretation of documents, particularly those annexed to the Plaintiff's affidavit sworn on the 30th of April 1990 and a Ruling given by the Native Lands Commission in Namulomulo Village on the 16th of October 1989. Counsel for the Third-named Defendant has kindly given a translation of this Ruling from Fijian into English and I have found it of assistance.

The present dispute arose out of the distribution of royalties for gravel which had been extracted from within the boundaries of Namulomulo Town Lands. The Plaintiffs had authorised the extraction of gravel from the land and received sizeable sums of money in royalties for it without the knowledge and consent of the Third-named Defendant as Head of the Mataqali. The Plaintiffs contend that because of the way in which they acquired the land they are entitled to such royalties without the consent of the Third-named Defendant. The First and Second-named Defendants deny this and generally support the argument of the Third named Defendant.

Until December 1989 rent for the land was also being paid to the Namulomulo villagers by the Second-named Defendant but this was suspended when the Ministry of Fijian Affairs wrote to the General Manager of the Second-named Defendant on the 27th of November 1989 requesting suspension of payments pending resolution of the right of the Plaintiffs to such money.

The present case appears to go back long before the appointment of a Lands Commission in November 1880, designed to settle tribal boundaries, but whose efforts proved useless. (See Peter France, The Charter of the Land (1969), Oxford University Press, page 131.) It appears that the forebears of the Plaintiffs came from the highlands, having been forced out by the tribal fighting which had for years waged among Fijians. They were aliens but on arrival in the region of Ba their plight was recognised and they were given land by the Tui Nawaka, one of the predecessors of the Third-named Defendant. With the grant of land they were obliged to provide some service to their new Chief.

Over the years which followed various attempts were made by the Governments of the day to resolve questions of land title until in 1894 the Wilkinson Commission was appointed. Its Chairman was David Wilkinson who had arrived in Fiji from Victoria in about 1861, had translated the Deed of Cession and had been the Chief Interpreter to the Government, the Commissioner for Native Affairs and the Commissioner for Native Lands. His task was to record the various boundaries of land occupied by Fijians and in 1896 he set out a description of the lands given by the Nalagi Mataqali to the several Mataqalis resident in the Town of Namulomulo. This description and its recording of the gift is set out in annexure "MN4" of the affidavit of the Plaintiff, Maikeli Nagata sworn on the 30th of April 1990. It is on this document that the Plaintiffs base their case.

The earlier part of the document containing the description of the boundaries of the land is signed by T. Keaney the Government Surveyor and then under his signature appears the following which is signed by D. Wilkinson.

Commissioner of Native Lands in the presence of one John Lawford, Registrar of the Supreme Court:

"The above land has been given by the NALAGI Mataqali of the Town of NAWAKA to the several Mataqalis resident in the Town of NAMULOMULO, for their use and occupation and are to be recorded as Owners-in-Common whilst they continue to reside thereon, but the land is subject to reversion to the NALAGI Mataqali should such occupation at any time cease.

Confirmed by the Special Provincial Council convened by the Governor to be held at NAVOCI Town, Buliship of NADI, on the 24th September 1896, and following days.

Resolution No. 190, Evidence Book Volume No. 2, page 243.

Registered 14th October 1896."

The question I have to decide is whether annexure "MN4" which is actually Folio 133 of the Register of Native Lands gives the Plaintiffs a valid title to the lands which they claim and with it, the right to receive rent from the land. At the outset it must be stated that native land is owned not individually but as a group by a division or sub-division of the native Fijians such as Mataqali or Tokatoka. It is then described as "the customary right to occupy and use native land" (See Section 3 Native Land Act, Cap. 133). As Kermode J. said in Serupepeli Dakai & Others v. The Native Land Development Corporation and Others (542/79):

"Members can enjoy two rights usually associated with ownership namely the right to occupy and use the land, but they cannot sell or charge the land."

The Plaintiffs argue that Wilkinson's grant is clear in its terms and means that the legal ownership of the Namulomulo Town Land was vested in the villagers of Namulomulo in 1896; that the present Plaintiffs and their heirs of the former residents are therefore now the native owners of the land. As such, it is said they have the right to receive all rents and royalties which accrue from the land.

In reply the First-named Defendant submits that the Plaintiffs have only a limited right of occupation of the land, the owner of which is really the Third-named Defendant. Counsel likens the situation to that of the Reversion in English law and quotes from Halsbury's Laws of England, Volume 23, paragraph 985, Third Edition where the author says:

"The interest in the property which remains in the landlord is called the reversion, and, as a rule there is incident to it the right to receive from the tenant payment for the use of the property in the shape of rent."

I cannot accept this submission. Throughout the cases dealing with land rights in Fiji there is at least one common thread namely that one has to use great care in applying to the question of land tenure in Fiji the concepts and terminology of English land law. Thus in the passage quoted by counsel from Halsbury it is clear that the author is referring to a relationship of Landlord and Tenant which in my view does not apply to the present case. Wilkinson does not refer to it as such but rather describes the Plaintiffs as owners-in-common of the land, a term which to me implies more than the term "Landlord and Tenants". Unfortunately in none of the relevant legislation nor in the Deed of Gift itself is the expression ownership-uncommon defined and it may well have been a creation of Wilkinson himself. However in Halsbury's Laws of England 4th Edition Volume 35 at paragraph 1145 the author defines ownership in common as follows:

"Ownership in common. Owners in common have a unity of possession, but a distinct and several title to their shares, which need not necessarily be equal. There is no right of survivorship between owners in common. Ownership in common arises (1) from the severance of a joint ownership, or (2) from a gift to two or more persons in common."

(My emphasis.)

There is no doubt in my mind on the evidence that the Third-named Defendant has the ultimate right of the ownership of the land concerned but to argue that this then denies the Plaintiff the full rights and obligations going with land ownership seems to me to be another matter.

The Second-named Defendant also argues that the Plaintiffs owe their present occupation of the land to Section 18 of the Native Lands Act, Cap. 133 which reads as follows:

"Power to allot land to dependant

(1) Notwithstanding anything contained in this Act it shall be lawful for the Commission with the consent of the Fijian owners to allot at its discretion to any dependants either individually or collectively a sufficient portion of land for their use and occupation:

Provided that any dependant to whom such portion of land has been allotted and who thereafter ceases to reside with the Mataqali from whose lands the said portion was allotted shall thereupon lose his interest in the said portion.

Land to revert to Fijian owners on cesser of occupation

(2) Whenever through any cause such portion of land ceases to be used and occupied by the dependant or dependants to whom it was allotted it shall revert to the Fijian owners from whose lands the allotment was made.

Where dependant an owner of land

(3) No allotment of land shall be made to any dependant who may be found to be already an owner of land by operation of any Fijian custom. (Ordinance 8 of 1919, s.2.)"

Then "dependants" is defined in Section 2 of the Act as:

"dependants" means native Fijians who at the time of the erection of the Fiji Islands into a British Colony had become separated from the tribes of which they respectively belonged by descent and had by native custom lost their rights in the tribal lands and were living in a state of dependence with other tribes, and includes their legitimate issue"

It is then said that if the Plaintiffs are considered to be "dependants" then they cannot claim to be the sole native owners under the Native Lands Act because Section 18(2) also recognises the reversionary rights of the grantors of the lands. Whilst I accept that Section 18(2) recognises such reversionary rights of the grantors I cannot agree with the first part of this submission. In my judgment there is no probative evidence before the Court that the giving of the Namulomulo Town Land by the Mataqali Nalagi to the Namulomulo villagers was an act of allotment as contemplated under Section 18.

The parent substantial legislation relating to Native Lands was enacted as the Native Lands Ordinance 1880. That Ordinance did not contain a provision similar to the present Section 18 of the Native Lands Act, Cap. 133. Neither did the Native Lands Ordinance 1892. The present Section 18 was first enacted by the Native Lands (Dependants) Amendment Ordinance, 1919, S.2.

However there can be no doubt that the title to the land in question given by Mr. Wilkinson is still valid. In the Final Report by the Chairman of the Native Lands Commission to the Colonial Secretary dated 10th July, 1958, a copy of which is Annexure "MN5" to the Plaintiffs' affidavit, the Chairman confirms this. In paragraph 6 he says this:

"I would point out that ownerships-in-common created by Mr. Wilkinson in the Province of Ba and Yasawa were of a complicated nature and the Maxwell Commission was unable to sub-divide them into Mataqali holdings. Consequently the Wilkinson decisions in such cases still stand. Although the blocks were surveyed by the present Commission's surveyors, the latter did not rewrite the boundaries for re-registration. They merely gave Lot numbers and areas to the various blocks. It will be seen in Table No. 4 herein that the new areas differ widely from the old ones."

It is very clear to me that the titles given to the Plaintiffs by Wilkinson date back to about 1896. Likewise it seems to me that the Namulomulo Town Land was granted by the Nalagi Mataqali to the ancestors of the present Plaintiffs. I shall return to this question later after I have discussed the submissions of the Second and Third-named Defendants.

The Second-named Defendant makes two submissions:

(A) The jurisdiction to determine ownership of native land rests with the Native Lands Commission.

(B) Ownership of Namulomulo Town Land rests in law and custom in the Mataqalii Nalagi.

I accept the first submission subject only to the supervisory jurisdiction of this Court over the Native Lands Commission as an inferior tribunal. However I observe that the Native Lands Commission in October 1989 recognised the rights of the Plaintiffs to the land when it said:

"The record of ownership as recorded by David Wilkinson is as nearest as possible to recording this custom of giving land to strangers and landless in return for allegiance and service.

In the description of this land, it is recorded that this land was given to the Yavusa Saumata or the Mataqalis residing at Namulomulo for your occupation and use until such time as you no longer reside at Namulomulo. In Fijian custom, this means that so long as you continue to recognise and serve the Tui Nawaka and carry out your responsibilities as done by your ancestors, then you will be allowed to continue to occupy and use this land."

I note that nowhere in its decision did the Commission attempt to limit the nature of the use of the land by the Plaintiffs nor, it may be added, did Mr. Wilkinson although it would have been simple for him to have done so had he wished. Reviewing the evidence before me I consider that there can be no doubt that the reversionary ownership of the lanai remains dearly in the Nalagi Mataqali, according to Wilkinson's Deed but in my judgment the real question for this Court is the result in law of the giving of the land by Wilkinson, and particularly whether that entitles the Plaintiffs to receive rent from the land. In my view it does.

The Second-named Defendant submits that Folio 133 recognises three things, namely:

(a) That all is given to the Namulomulo villagers is the right to use and occupy.

(b) That they are in fact living in a state of dependence of the Mataqali Nalagi.

(c) Ultimate ownership rests with the Mataqali Nalagi.

This submission appears to minimise the effects of the Wilkinson grant in that it says that all that is given to the Plaintiffs is the right to use and occupy and that they are living in a state of dependence with Mataqali Nalagi. In my view the grant by Wilkinson is the grant of the full rights of ownership of the land subject only to the ultimate rights of the third-named Defendant to resume ownership if and when the occupation of the Plaintiffs ceased. The fact is that since even before 1896 the Plaintiffs have resided on and used the land and for some considerable time past have been receiving rents and royalties for the use of such land. It may be that this has been with the consent of the people of Nalagi but in my judgment this does not detract from the unlimited nature of the grant made by Wilkinson.

It has been said of Wilkinson:

"He was an enthusiastic penman whose fluency of expression was unimpeded by considerations of spelling, grammar or syntax. In his anxiety to leave no doubt as to the finer nuances of his opinions on a subject, he is led into qualifications and inconsistencies of expression which leave the true nature of those opinions forever hidden." (See Peter France, op. cit., pp. 139-140.)

In my opinion whilst that comment may be true of other writings of David Wilkinson it can not be said of the teams of his grant in Annexure "MN4" As I have said earlier if it had been Mr. Wilkinson's intention to in any way limit the title he was conferring on the Plaintiffs he could easily have said so. He did not in this case and 1 can find no qualifications and inconsistencies of expression which conceal his intentions as evidenced in the words he used in making the grant.

I therefore reject the submission of the Second-named Defendant in so far as it asserts that the Plaintiffs' occupation of the land carries with it only limited rights to the use of that land. It is interesting to remark that according to Section 3 of the Native Lands Act, native land "may be cultivated, allotted and dealt with by native Fijians as amongst themselves according to their customs and subject to any regulations made by the Fijian Affairs Board ..........."

In my judgment the use of the expression "dealt with" supports the view I have expressed above in that nowhere can I find any evidence that the Plaintiffs are to be restricted in the way they deal with the land they are occupying. One of the meanings given by the Oxford Dictionary to the term "deal with" in relation to a person's affairs is to manage or attend to a matter. In my opinion because their rights of managing the land are not restricted and, for example, not subject to any payment of rent to the Third-named Defendant, the Plaintiffs must be considered entitled in law to the rents and profits of the land they have occupied now for a long time, and title to which they have enjoyed for over 95 years.

I come now to the submissions of the Third-named Defendant, much of which I have covered in my comments on the submissions of the First and Second-named Defendants.

At page 12 of the Third-named Defendant's submission again an attempt is made to reduce the status of the occupation of the land by the Plaintiffs. It is said that the title they received from Wilkinson gave them only "given" and "temporary" rights. For reasons which I have endeavoured to state earlier I cannot accept this limitation of the rights I believe the Plaintiffs have been given. The submission obviously claims that the Plaintiffs' rights are something less in law than the rights of full ownership of the land but again I cannot accept this. In my judgment as long as the Plaintiffs remain on the land and use and occupy it they have the right of full ownership of the land together with the corresponding duty not to waste it but to maintain it in a usable state and at the end of their occupancy to return it intact to the Third-named Defendant and his successors. For this reason I do not agree with the claims by the Third-named Defendant that the Plaintiffs can be displaced from the land. I consider rather that they are entitled to enjoy peaceful and undisturbed occupation as owners for the time being until such time as they leave the land or there are no longer any survivors of them remaining. In the latter event it would seem that the land would revert to the Third-named Defendant or his successors and that if their occupation ceased in the circumstances contemplated by Section 19 of the Native Lands Trust Act, Cap, 134, the land shall fall to the State as "ultimus haeres"

At present there is no evidence that the Plaintiffs have ceased to occupy the land or that they will in the foreseeable future.

At page 17 of his submission the Third-named Defendant appears to argue that the Plaintiffs are not to be considered owners but are lessees or licensees of the land and that accordingly they are no longer in "occupation and use" of it. It then follows, says the Third-named Defendant, that the Third-named Defendant and Mataqali Nalagi are the rightful beneficiaries of proceeds of rent, royalties, compensation, premium and other moneys under Section 14 of the Native Lands Trust Act, Cap. 134 and Regulation 11 of the Native Lands Trust (Leases and Licences) Regulations 1984.

It seems to me that this submission begs the question in that it wrongly assumes the existence of a lease or licence from the Third-named Defendant. As I have stated earlier, in my judgment the Plaintiffs' occupation of the land is due to the grant by the Mataqali Nalagi referred to by Wilkinson in Folio 133 which describes them not as lessees or licensees but owners-in-common a term which in my view connotes more than that of "lessee" or "licensee". I therefore hold that the Plaintiffs are the rightful beneficiaries of the rents and profits arising from their use and occupation of the land until they cease to occupy and use it or they enter into a legally enforceable agreement with the Third-named Defendant to share any such rents and royalties with the Defendant or his successors. I consider that there is a clear presumption that Wilkinson Wended the Plaintiffs to have quiet enjoyment and the full rights of a legal owner of the land for as long as they occupy it.

This leaves the form of declarations and orders that I should make in the case. In my view these should be as follows:

(i) That the legal ownership of the Namulomulo Town Land vests fully and exclusively in the several Mataqalis of the Namulomulo Village as "owners-in-common" for as long as they and their heirs, successors and assigns of the Mataqalis of the Namulomulo village use and occupy the land.

(ii) That the legal ownership of the Namulomulo Town Land vests fully and exclusively in the Namulomulo Villagers as "owners-in-common" for as long as they and their heirs, successors and assigns to the Mataqalis of the Namulomulo village continue to use and occupy the land.

(iii) That the proper and lawful payee of all the rent in respect of the Namulomulo Town Land is the Namulomulo Villagers as members of the several Mataqalis within the village who are to be considered "owners-in-common" of the land as long as they continue to occupy and use it.

(iv) I direct that Mandamus issue to compel the Native Lands Commission to recognise and abide by its own decision vesting the ownership of the Namulomulo Town Land in the several Mataqalis of the Namulomulo Village as "owners-in-common" and to compel the Commission to direct the. Native Lands Trust Board to pay all rent due from the Namulomulo Town Land or any part thereof to the Namulomulo Villagers exclusively and that the Native Lands Trust Board shall consult only with the Namulomulo Villagers in respect of land dealings relating to the Namulomulo Town Land as long as they remain in the use and occupation of such land.

(v) That the Defendants pay the Plaintiffs their costs of these proceedings.

There will be orders accordingly

(Declarations granted)

(Editor's note: an appeal against this Judgment is reported at 39 FLR 148 and see also 37 FLR 149 – post)