Vunisa v Director of Lands [2001] FJLawRp 84; [2001] 2 FLR 343 (4 October 2001)

EMOSI VUNISA v DIRECTOR OF LANDS & THE MAGIC MOUNTAIN SPRINGS (FIJI) LTD. & ATTORNEY-GENERAL

High Court Civil Jurisdiction
6, 20 November, 28 December 2000, 8 March, 4 October, 2001 HBC 414/00

Striking out for no reasonable cause of action – representative action – whether the Plaintiff had a properly constituted representative action – indefeasibility of title - no evidence to be tendered – validity of the Native Lands Act (Amendment) Decree – amendment of pleadings – validity of Native Lands Act (Amendment) Decree 15/00 - Native Lands Act s19; Native Lands Trust Act ss18(1), 19(1) and (2); Native Lands Act (Amendment) Decree 15/00; Land Transfer Act ss40 and 41; High Court Rules O.18 r.18(1)(a); 1997 Constitution

The Plaintiff as a representative of the Mataqali Matalevu filed an originating summons against the Defendants seeking various declarations and orders that D1 acted illegally in issuing a Crown Lease to D2. D1 and D3 filed a motion to strike out the summons for having no reasonable cause of action supported by affidavit on the basis that the Plaintiff had no locus standi to initiate proceedings. D2 in support, argued that his company was a bona fide purchaser without knowledge or notice of any illegal act. The court considered whether evidence ought to be tendered and whether the pleadings ought to be amended to join the Native Lands Trust Board as a party. In the course of the hearing the Court devoted much consideration to the validity of the Native Lands Act (Amendment) Decree 15/00. The Court discussed the doctrine of necessity.

Held–(1) In the absence of evidence of consent from the members of the Mataqali, the Plaintiff did not have locus standi to commence proceedings. It was clear that native title never existed over the land in question and that consequently the Plaintiff could not assert legal rights over it. The Plaintiff had failed to satisfy the Court of his right to obtain declaratory relief. The Second Defendant's interests were protected against the Plaintiff by the Land Transfer Act. The Plaintiff's submission to amend the pleadings to include the Native Land Trust Board as a party is abuse of process of Court.

(2) The Originating Summons is struck out on the ground that it discloses no reasonable cause of action against the First and Third Defendants.

(3) The Second Defendant is awarded costs against the Plaintiff in the sum of $350.00.

Obiter dictum - The Native Lands Act (Amendment) Decree 2000 must be regarded as meaningless and of no legal effect.

Plaintiff's Originating Summons is struck out as it discloses no reasonable cause of action against the First and Third Defendants.

Cases referred to in Judgment
Anisminic Limited v The Foreign Compensation Commission (1968) 2 QB 862
Drummond-Jackson v British Medical Council (1970) 1 WLR 688
Frazer v Walker (1967) 1 All ER 649
Ghim Li Fashion (Fiji) Pte. Ltd. v Commissioner of Inland Revenue (2001) HBC0403/98
Jokapeci Koroi & Others v Commissioner of Inland Revenue (2001) HBC179/01L 24 August 2001
Malone v Metropolitan Police Commissioner (1979) 2 All ER 620
McKay and Another v Essex Area Health Authority and Another (1982) 2 All ER 771
Meli Kaliavu v NLTB (1956-57) 5 FLR 17
Mitchell v Director of Public Prosecutions (1986) LRC (Const.) 35
Mutasa v Attorney-General (1980) QB 114
Republic of Fiji v Chandrika Prasad (No. 2) (2001) ABU0078/00S; [2001] 2 LRC 743
Ro Alivereti Lagamu Tuisawau and Others v Fiji Industries Limtied [1998] HBC 0164/97 Ruling 9 July 1998
State v Audie Pickering (2001) HAM 007/01S 30 July 2001
Timoci Bavadra v NLTB [1986] HBC 421/86 11 July 1986

Usaia R. Ratuvili for the Plaintiff
Savenaca Banuve for the First and Third Defendants
Ganga P. Shankar for the Second Defendant

4 October, 2001

JUDGMENT

Byrne, J
On the 22nd of September 2000 the Plaintiff issued an Originating Summons claiming the following Declarations and Order:

(1) A Declaration that the First Defendant acted illegally in issuing Crown Lease No. 13551 to the Second Defendant when he had Notice of the Yavusa Wailevu and Mataqali Matalevu's claim on the land in question.

(2) A further Declaration that because he was on notice of the Plaintiff's Reserve claim, the First Defendant was estopped from issuing a lease over the land in question.

(3) An Order that the Crown Lease 13551 be revoked and the lease to the Second Defendant terminated.

(4) Any further Order that this Court may deem just in the circumstances.

The Plaintiff also asks for costs to be borne by the First and Second Defendants.

The Plaintiff swore an affidavit in support of his Summons in which, so far as relevant, he deposes to the following:

(1) That he is the senior member of the Mataqali Matalevu in the village of Vunitogoloa in the district of Rakiraki in the Province of Ra.

(2) That at a meeting held in his village in about July 2000 the majority of the members of his Mataqali Matalevu appointed him to be their authorised spokesman and representative in all legal matters pertaining to their Mataqali.

(3) That in 1996 his Mataqali lodged a claim with the Commission of Native Reserves for the land called Matalevu.

(4) That on or about May 1999 the First Defendant issued a lease to the Second Defendant for 99 years, namely Crown Lease 13551 over the Matalevu land.

(5) That the Plaintiff and his Mataqali were never consulted at any stage by the First Defendant concerning the issuing of the lease.

(6) That the lease was obtained in the full knowledge that there was a pending Reserve claim on the land in question.

On the 10th of October 2000 the First and Third Defendants issued a Motion for an Order under Order 18 Rule 18 (1) of the Rules of the High Court that the Statement of Claim discloses no reasonable cause of action.

The Motion is supported by an affidavit by the Director of Lands sworn on the 13th of October 2000 and of Zarin Khan a Director of the Second Defendant.

The affidavit of the Director of Lands, Mr. Barma Nand denies the allegations made by the Plaintiff. He says that the land known as Matalevu over which Crown Lease 13551 was issued comprising 39.8919 hectares or approximately 20 acres is Schedule B Land under Section 19 of the Native Lands Act Cap. 133 and as such wholly in the control of the State which is administered by the Director of Lands who has the authority to issue leases.

Mr. Nand further states that the area covered by the Crown Lease is part of the 677 acres of land identified as NLC Lot 10 in the Crown Lease.

Mr. Nand then states that neither he nor his department was required to consult the Plaintiff or any other persons before dealing with Crown Schedule B lands and that the Plaintiff does not have sufficient authority or interest to initiate these proceedings. He claims that the interest of the Plaintiff or the Mataqali he purports to represent is very tenuous in that the Plaintiff's interest has not been conclusively determined pursuant to Section 18 of the Native Lands Trust Act Cap. 134 and has not been set aside as Native Reserve.

He agrees that eventually Crown lands in Schedule A and B would revert to Native Lands to be administered by the Native Lands Trust Board which also has been implemented through the Native Lands Act (Amendment) Decree No. 15 of 2000 published on 12th July 2000.

I shall have more to say about this Decree later but now refer to the affidavit of Zarin Khan.

Mr. Khan states that the lease his company received from the First Defendant is legal and binding as it has been duly registered under the Property Law Act and the Land Transfer Act. He further denies that the Second Defendant has been a party or privity to any act of fraud or illegality and that his company was granted the lease bona fide without knowledge or notice of any illegal act.

It is probably convenient here to refer to the Decree mentioned by Mr. Barma Nand in his affidavit because in my judgment it has no bearing on the question before me in so far as I regard it as a nullity.

The title of the Decree is curious. It is called the Native Lands Act (Amendment) Decree 2000 which must be regarded as meaningless and of no legal effect. No Decree can amend an Act of Parliament which has been held by three Judges of this Court, Shameem J., Gates J. and myself in judgments given in the last two months namely State v Audie Pickering unreported judgment of Shameem J. in Suva High Court Misc. Action No. HAM007 of 2001S on the 30th of July 2001, my judgment in HBC043 of 1999S Ghim Li Fashion (Fiji) Limited v Commissioner of Inland Revenue unreported judgment of 16th August 2001 and by Gates J. in Action No. HBC179/2001l Jokapeci Koroi and Two Others v Commissioner of Inland Revenue and Another unreported judgment of the 24th of August 2001.

Audie Pickering's case concerned mandatory minimum sentences under the Drugs Act which purported to be imposed by Decree and not by an Act of Parliament. Her Ladyship held that as such a Decree was a nullity.

In Ghim Li Fashion's case I held that the Value Added Tax Decree of 1991 was unconstitutional in that it purported to amend and render invalid all existing Acts, laws or regulations concerning the imposition of Income Tax. I held that in so far as the Decree purported to repeal legislation passed by Parliament it was a nullity.

It is only fair to say that I did not receive any submissions on this from the parties in this case but in so far as the Director of Lands relies on the Decree in question it is important that I refer to it in this judgment.

The Decree purports to amend the Native Lands Act in several respects. It repeals the definition of Native Lands in the Act and replaces it by a much wider definition. It also purports to increase the percentage of income arising from vacant land vested in the Board from 10% to 15%. There are other amendments which I need not recite. It may be that there are good policy reasons for the making of the Decree but I am satisfied that it cannot be justified by the doctrine of necessity if that was the reason for Commodore Bainimarama, the Commander of the Armed Forces, under whose hand the Decree was published.

In pages 20 to 26 of his judgment in Koroi's case Gates J. discusses the circumstances in which the Doctrine of Necessity may be invoked and with which I respectfully agree. It will suffice if I refer to page 22 of his judgment when he refers to the judgment of Haynes P. in Mitchell v Director of Public Prosecutions (1986) LRC (Const.) 35 at p.88 now regarded as an authority on this question. Haynes P. said:

"(i) an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function to the State;

(ii) there must be no other course of action reasonably available;

(iii) any such action must be reasonably necessary in the interest of peace, order, and good government; but it must not do more than is necessary or legislate beyond that;

(iv) it must not impair the just rights of citizens under the Constitution;

(v) it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such."

I consider none of these conditions can apply as justification for the Native Lands Act (Amendment) Decree, which, consequently in my judgment will have to be submitted to the new Parliament if the new Government supports the purposes and amendments claimed to be made by the Decree. In so far therefore that the First and Third Defendants place any reliance on the Native Lands Act (Amendment) Decree 2000, I hold that they cannot do so. It is not a law of which the Courts can take notice.

I make these comments on the Decree because I consider there is a danger that the public or even the legal profession may be lulled into thinking that all Decrees passed by an unelected administrator or, in the instant case, the Commander and Head of Government following the takeover by Mr. George Speight and his supporters on May the 19th last year have any validity. In my judgment most if not all of the Decrees made by Commander Bainimarama, particularly in the light of the upholding of the 1997 Constitution by Court of Appeal in Chandrika Prasad's case, have no legal validity.

I also endorse the statement by Gates J. at page 31 of his judgment:

"In the circumstances, it is essential that the incoming Parliament review all of the Decrees made since 1987 and subject them to the normal processes of a bill. Only then will Parliament be true to its constitutional pact with the people of Fiji. A reference tucked away at the end of the Constitution [section 195(1)] of all written laws continuing in force, does not amount to a parliamentary process complying with such a pact. Parliament should seek to complete such a process within as short a time as possible, perhaps 12 months. Parliament, setting its own procedure, will no doubt extend that time as it thinks fit."

In my judgment these are matters of fundamental importance to the law of this country and the sooner all Decrees passed since 1987 are re-visited by the new Parliament the better for the country.

I pass now to the submissions by the Defendants as to why the Plaintiff's Originating Summons should be struck out. Counsel for the First and Third Defendants begins by saying that the Defendants do not rely on the affidavit of the Director of Lands in their submissions on Order 18 Rule 18(1)(a) but whilst I note that, nevertheless the Decree annexed to the Director's affidavit is part of the evidence before the Court and one which as I have said in my view calls for comment because of the broader principle which I consider is involved on the validity of Decrees in general.

The first matter to be considered is that of locus standi of the Plaintiff to bring this action. The Plaintiff sues in his personal capacity and in a representative capacity for and on behalf of members of the Mataqali Matalevu of Vunitogoloa, Rakiraki in Ra. Certain authorities appear on the right of the Plaintiff to sue. In Timoci Bavadra v NLTB HBC 421/86, judgment of Rooney J. of 11th July 1986, the Plaintiff applied pursuant to Order 15 Rule 13 of the Rules for leave to institute a representative action against the Defendant on behalf of Tokatoka Werecakaca, Mataqali Elevuke of Viseisei Village, Vuda. Leave was refused. The relevant matters held by Rooney J. were:

(i) Individual members of a Mataqali or other landowning units have no right to institute proceedings in this Court - Meli Kaliavu v NLTB - 5 FLR 17.

(ii) Whilst the Plaintiff sought leave to institute a representative action on behalf of the Tokatoka, he nowhere claimed the support of the majority of members.

(iii) Even if the Plaintiff could show the support of the majority of the adult members of the landholding unit, this would not necessarily give him or the people represented the right to sue.

(iv) If the Plaintiff wished to pursue his case further he had to establish within the framework of the common law that a Tokatoka or Mataqali has the right to sue and be sued in the Courts.

Rooney J. said:

"The composition, function and management of a Mataqali and the regulation of the rights of members in relation to each other and to persons and things outside it are governed by customary law separate from and independent of the general law administered in this court."

In Ro Alivereti Lagamu Tuisawau and Others v Fiji Industries Limtied HBC164 of 1997 in my unreported judgment of the 9th of July 1998 following Meli Kaliavu and Bavadra I ruled that individual members of a Mataqali who cannot produce evidence of consent from other members of the Mataqali to act on their behalf did not have locus to commence proceedings. This simply means that each member of the Mataqali has equal rights and their consent needs to be obtained before any action is taken on their behalf.

It is not sufficient in my judgment merely to assert as the Plaintiff does in paragraph 5 of his affidavit of 21st September 2000 that the majority of the members of his Mataqali Matalevu appointed him to be their authorised spokesman and representative in all legal matters pertaining to their Mataqali. I would have thought it a simple matter for the Plaintiff to produce evidence of his assertion in the form of perhaps a statement signed by the members of his Mataqali or better still affidavits verifying the Plaintiff's claim. There is no such evidence.

No Reasonable Cause of Action

A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleadings are considered - Drummond-Jackson v British Medical Council (1970) 1 WLR 688 followed in McKay and Another v Essex Area Health Authority and Another (1982) 2 All ER 771.

In the first Declaration the Plaintiff alleges that the First Defendant acted illegally in issuing Crown Lease No. 13551 to the Second Defendant.

In paragraph 7 of his affidavit he states that his Mataqali lodged his claim to the land concerned with the Commissioner for Native Reserves. Annexure EV 1 of the affidavit shows that the land is State Schedule B land. Section 19 of the Native Lands Act Cap. 133 clarifies the status of Schedule B lands.

"The Commission shall have power to mark out and define the boundaries of any lands which on investigation by the Commission, may be found to have been unoccupied at the date of cession of the Fiji Islands to the British Crown and to have remain unoccupied up to the time of the sittings of the Commission and to which no title has been created by the operation of any active custom which was in force before cession. Such lands shall be declared by the Minister to be vacant lands under the control of the Crown and shall be dealt with in every respect as Crown Lands."

In my judgment therefore it is clear that native title has never existed over the land in question and that consequently the Plaintiff cannot assert legal rights over it. He is a mere claimant pursuant to Section 18(1) of the Native Lands Trust Act to have the land set aside as Native Reserve for the use of his Mataqali as the section says.

"If the Governor-General is satisfied that the land belonging to any mataqali is insufficient for the use, maintenance or support of its members it shall be lawful for the Governor-General by proclamation to set aside such Crown land, or land acquired for or on behalf of Fijians as by purchase as in his opinion may be required for the use, maintenance or support of such mataqali. Any area so set aside shall be deemed to be a native reserve."

It follows in my judgment that neither the Plaintiff nor the Mataqali he claims to represent have any legal rights over the land at the present time. Indeed it is unclear whether the claimant is the only claimant over the land. Because of this there can be no guarantee that the application by the Plaintiff's Mataqali will succeed. This will depend on whether the President is satisfied that the Plaintiff's Mataqali have insufficient land for their use.

In short it may be said fairly that at the moment the Plaintiff's claim is based on mere speculation.

By contrast Section 19(1) and (2) of the Native Lands Trust Act Cap. 133 gives the First Defendant a clear statutory mandate to issue Crown leases over Schedule B lands as claimed by the Director of Lands in his affidavit.

Before the Court can have jurisdiction to grant declaratory orders it must be satisfied of at least two matters:

(i) it must have the necessary parties before it;

(ii) the matter must be justiciable.

As to (i) I am not satisfied that the necessary parties are before the Court in so far as my views about the locus of the Plaintiff are concerned. As to (ii) in the Court of Appeal in Anisminic Limited v The Foreign Compensation Commission (1968) 2 QB 862 AT 910 Diplock L.J. (as he then was) said:

"The jurisdiction to give declaratory judgments is limited to declaring the existence of legally enforceable rights or liabilities."

In Malone v Metropolitan Police Commissioner (1979) 2 All ER 620 at 627 Megarry V.C. held that the Court's power to make declaratory judgments or orders is confined to matters justiciable in the Courts, meaning legal or equitable rights and not moral, social or even political matters.

In Mutasa v Attorney-General (1980) QB 114 the Court refused declaratory relief on the ground that the matter before it involved only an imperfect obligation.

The Plaintiff has failed to satisfy me of his right to obtain declaratory relief for the reasons stated in these cases.

Land Transfer Act Cap. 131
I consider that the Second Defendant's interests are protected against the Plaintiff by the Land Transfer Act. The Act defines "instrument of title" as including a certificate of title, Crown grant, lease, sub-lease, mortgage or other encumbrance. "Crown grant" means any grant of land by the Crown.

Sections 40 and 41 protect the Second Defendant and are well known in land law. By Section 40, except in the case of fraud, no person contracting or taking a transfer from the proprietor of any estate or interest in land is required to inquire into or ascertain the circumstances in which the proprietor or any previous proprietor was registered. This means that a bona fide purchaser for value on registration acquires immunity from attack by adverse claim to the land in respect of which he is registered.

In Frazer v Walker (1967) 1 All ER 649 at 652 the Privy Council said:

"The expression 'indefeasibility of title', not used in the Act, is a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys. This conception is central in the system of registration. It does not involve that the registered proprietor is protected against any claim whatsoever; as will be seen later, there are provisions by which the entry on which he relies may be cancelled or corrected, or he may be exposed to claims in personam. These are matters not to be over looked when a total description of his rights is required; but as registered proprietor, and while he remains such, no adverse (except as specifically admitted) may be brought against him."

Section 18 of the Act makes the lease conclusive evidence of the Second Defendant's estate or interest.

In response to the submissions by the Defendants the Plaintiff first states that under the rules of the Court he cannot tender any evidence to support his claim to have a right to sue. This submission however mis-states Order 18 which does not apply to the Plaintiff in this case.

Rule 18 prohibits the tendering of any evidence in support of any party attempting to strike out or amend any pleading which is alleged to disclose no reasonable cause of action or defence. The purpose of the Rule is clear. It allows argument on the law only without permitting the Court to consider any evidence in support of an application to strike out. I therefore reject this submission.

Lastly the Plaintiff, perhaps now realising the difficulties he faces, submits that the Court should exercise its discretion to amend the pleadings so that the Native Land Trust Board is also included as a party. It is said that this will ensure that the case is properly ventilated before the Court and that all relevant facts are before it.

I cannot accept this submission because to do so would be clumsy and illogical because of the clear view I have formed that the Plaintiff has no cause of action against the First and Third Defendants. To accede to the Plaintiff's request would result in the curious situation of having a new Defendant substituted for the Defendants dismissed from the action and an amended statement of claim and other pleadings being delivered by the Plaintiff and the new Defendant in the present action. In my view that would also be an abuse of process. The proper course for the Plaintiff if he wishes is to issue fresh proceedings against only the Native Land Trust Board so that the rights and liabilities of the Board towards the Plaintiff can be determined in a separate action. I therefore reject the Plaintiff's submission and make the order sought by the First and Third Defendants in paragraph 1 of their Motion that the Plaintiff's Originating Summons be struck out on the ground that it discloses no reasonable cause of action against the First and Third Defendants. Those Defendants do not ask for costs but the Second Defendant who has an important interest in the proceedings does. I consider it fair to award the Second Defendant costs against the Plaintiff which I fix at $350.00. There will be orders accordingly.

Application granted for first and third Defendants.

Shayne Sorby