IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Civil Action No 105 of 2010

BETWEEN

NATIVE LAND TRUST BOARD
[ a body corporate duly constituted under the Native Land Trust Act Cap 134]
PLAINTIFF

AND

MISA RAMASIMA & ILOI TAGIYAWA
DEFENDANTS

Plaintiff : Ms Laisani Macedru, Senior Legal Officer, iTaukei Land Trust Board.
Defendants : in person.

JUDGMENT

1.	The claim of the Plaintiff is for Unlawful Occupation over a native land known as Wainaliva in the village of Kalokolevu, Rewa province.

Chronology 

2.	The writ of summons filed on 24th March 2010 and the affidavit of service confirms that it was served on the Defendants on 25th March 2010.

3.	Statement of defence dated 9th June 2010 was filed by the Defendants. Later on 25th June 2010 the Plaintiff replied to the defence of the Defendants.

4.	The case was proceeded to trial on 07th September 2010 before the learned magistrate Mr. Jude Nanayakkara. The Plaintiff called Mr. Vuki Tokailagi as the sole witness to prove their case. The Defendants sought time from the Court to call their witnesses and thereafter Mr. Nanayakkara left the bench.

5.	Later the matter adjourned on numerous occasions to facilitate the above request of the Defendants. Both parties agreed to adopt the evidence after I took over this Court in November 2011.

6.	When the case called on 01st June 2012 to continue the trial, the first Defendant submitted that he cannot proceed as the second Defendant who is his wife is not well. The trail was then vacated and re fixed to 24th July 2012. The first Defendant came up with the same excuse and the trial adjourned till 26th of July.

7.	On 26th the Defendant asked the matter to be stood down so that his witnesses can be present. When the matter called at 2.45 pm the first Defendant again wanted a further adjournment. This was a clear abuse of process by the first Defendant. His final application was rejected by the Court and decided to proceed as no evidence offered by the Defendants.

8.	However in the interest of justice both parties were given opportunity to file written submission. 

Plaintiff's Case

9.	 The sole witness Mr. Vuki Tokailagi has been an Estate officer in the Native Land Trust Board. He possessed 29 years of experience in the office. His duties were explained to the Court as a field officer. 

10.	 He recalled his involvement in the case. As per the 'Instrument of Tenancy' the Native Land Trust Board [hereinafter called as NLTB] has granted a lease to Bogi Velavela for a land of 4.0469 hectares known as Wainaliva. This was situated in Rewa province. The land owned by Mataqali Maraniba and the lease was registered for 30 years commencing from 1st September 1983. He further stated that there was no mention about the Defendants in that lease and they have failed to obtain consent from NLTB for them occupy the said land.

11.	He states that the inspection he carried out subsequently in the land, confirmed the breach that has been caused by the Defendants. Thereafter a notice of 'unlawful occupation' dated 11.09.2010 which was addressed to the Defendants was served. However the defendants have failed to vacate the land.

12.	In cross examination, the witness confirmed that the Defendants were never given an opportunity to discuss the matter with the NLTB. The Defendants asked whether the witness aware that a person called Paul junior gave the land to them. This suggestion was refused by the witness as he was not aware on the said arrangement.

13.	The witness stated in his re examination, that the NLTB has an overall discretion on the native lands of Fiji. This discretion will make ineffective the consent which may be obtained from Mataqali of the area. 

Defendant's Case 

14.	 Even after obtaining numerous adjournments the Defendants failed to adduce any evidence for their case. The Defendants explained in their written submissions, as to how they ascertained the occupancy of the land.

15.	 The initial lessee Bogi Velavela passed away on 31st July 1988 and the rights of the land were given to Mr. Paul Managreve as an administrator to the land of Bogi. The transmission of death was done on 21st July 2003. Thereafter Mr Paul Managreve died.

16.	The Defendant's argument is that the rights of Paul Managreve were taken over by his son Paul Managreve [Jr] and he gave the permission to occupy the land. Further the Defendants state that they went and met a person called Jo at NLTB and he instructed the occupants can live on the approval of Paul Mangreve [Jr]. In the absence of any sworn evidence the Court is not inclined to consider above position of the Defendants.

The Law

17.	Both the Plaintiff and the Defendants are well aware that the premise in question is a native land and it is under a lease from the Native Land Trust Board.

18.	Any sale or transfer of or dealing in native land requires prior consent of the Native Land Trust Board under section 12 of the Native Land Trust Act, Cap 134 of the Laws of Fiji. And any dealing affected without consent is null and void and unlawful. As a result, any agreement for sale and purchase must be conditioned upon receipt of consent and must not be carried into effect until such consent is obtained. 
Chalmers v Pardoe, [1963] 3 All ER 552, [1963] 1 WLR 677; Fong Lee v Mitlal and Ram Kissun, [1966] 12 FJLR 4 at p.11 

19.	The evidence before the Court is that the consent of the Native Land Trust Board was never obtained by the Defendants as it was never applied for.

20.	It appears that the Defendants line of cross examination was directed to establish that there had been an agreement to purchase the land in question. Therefore the question is whether it gives any equitable right to the Defendants to remain in the land.

21.	This was discussed in the case of Dulare v Tuiwainikai, High Court of Fiji Civil Case No. HBC 13 of 1994 (12 July 1994), in which the High Court granted an order for possession under s 169 to the registered proprietor of certain land, despite the defendant's claim to have an equitable right to remain in the land by virtue of an agreement to purchase same.

22.	The High Court found the agreement to purchase the said land, and the defendant's possession of the same, to be unlawful as the land was native land and the consent of the Native Land Trust Board had not been obtained. In his judgment the Honourable Justice Pathik referred to the tenancy agreement and found it to be null and void for lack of consent, as follows:

"I further find that although there is nothing in the affidavits to indicate that consent of the Native Land Trust Board was obtained to the initial letting out, the defendant did pay rent as a monthly tenant and the plaintiffs have been accepting it but for the last twelve months he is in arrears. One might ask could he be regarded as a "tenant" in the absence of the necessary consent. The answer would, in my view, be in the negative. Therefore was there any tenancy agreement the same would be null and void in accordance with S12 of Native Land Trust Act."

Conclusion

23.	The Defendants did not deny that they were not the registered lessee of the land known as Wainaliva. The Defendants were relying on the arrangement made with Paul Mangreve [Jr] for them to occupy the land and the property. The Defendants failed to support their submission with expectable evidence. As a result this Court concludes that the two Defendants are unlawfully occupying the said land.

24.	Therefore I note that the above named two Defendants as unlawful occupants.

25.	The Defendants are ordered to vacate the land known as Wainaliva forthwith. [Area 10, 4.0469 Hectares, Suva District, Rewa Province -Area marked in the plan of Instrument of Tenancy]

26.	Costs summarily assessed at $ 500 and payable by the Defendants to the Plaintiff within seven days.

27.	Either party may file their intention to appeal within 7 days of this judgment.

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

29th November 2012