Native Land Trust Board v Nadi Town Council [1979] FJSC 18; Civil Appeal 7 of 1979 (3 August 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Appellate Jurisdiction

Civil Appeal No. 7 of 1979

BETWEEN

NATIVE LAND TRUST BOARD
Appellant

AND

NADI TOWN COUNCIL
Respondent

Mr. A. Balram, Counsel for the Respondent
Mr. A. Qetaki, Counsel for the Appellant

JUDGMENT

This is an appeal by the N.L.T.B. who were sued in the Nadi Magistrate's Court by the Nadi Town Council for $1,655.47 being rates unpaid for the years 1974 and 1975 on several pieces of native land.

The N.L.T.B. did not deny that the native land was liable to rates or the amount claimed. They objected solely on the ground that liability for town rates on native land does not rest upon the N.L.T.B. because they are not "the owner" under Sections 2 & 75 of the Local Government Act No. 4/72 (hereinafter called "the Act").

Before the learned magistrate argument was limited to one issue namely who is liable as an owner of native land to pay rates under the Act. In a cogent and well balanced judgment the learned magistrate Mr. Kepa came to the conclusion that the N.L.T.B and not the local Fijian landowners were liable.

The arguments presented to the magistrate are relied upon in this appeal by the N.L.T.B. and the Town Council. Mr. Qetaki for the N.L.T.B. had clearly taken pains to prepare his submissions and he presented a list of authorities which he relied upon.

The law appertaining to the imposition and collection of town rates is contained in the Act. S.75 deals with liability for rates and enacts that -

"S.75 (1) (a)_____________ rates shall be a first charge on the land noted and shall be recoverable by the council from -

(a) the owner at the time of making the rate;"

The remainder of the section is not applicable to those proceedings.

It becomes necessary to ascertain who is the owner and the Act defines "owner" in S. 2 as being-

"a person other than a mortgagee not in possession; who is for the time being entitled to dispose of the fee simple of the land whether in possession or reversion and includes also a person holding or entitled to the rents and profits of the land under a registered lease or registered agreement.

Provided that in the case of unalienated native land the term "owner" shall mean the proprietary unit."

It is not suggested that the land is unalienated and therefore we are not concerned with the proviso except in so far as it may assist in determining who is the owner of alienated native land. According to the Interpretation Act No. 11/67 "the proprietory unit"-

"in the case of native land means the proprietory unit registered under the provisions of the Native Land Ordinance as being the owner of such land."

There is nothing very surprising in the provisio to S. 2 because if native lands are alienated this must have been done by the N.L.T.B. under the powers vested in them by the N.L.T. Ordinance Cap.115. Under S. 4(1) of the N.L.T. Ordinance the control of all native land is vested in the N.L.T.B. and the Board administers it for the benefit of the Fijian owners.

S. 8(1) of the Ordinance authorises the Board to grant lease of native land; S. 10(1) permits them to charge fees for preparation of leases; S. 12(1) prohibits dealings with the leaseholds of native land without the Board's consent and describes the Board as a lessor and S. 14(1) permits the Board to deduct not more than 25% of the rent to cover their costs of collection and administration. By S. 5(1) of the Ordinance a Fijian owner cannot deal with his land in any way without the consent of the N.L.T.B. Timber concessions are under the control of the N.L.T.B. and under S. 33 of The Forest Ord. Cap. 128 the Conservator of Forests may not issue a licence to remove timber without the consent of the N.L.T.B. and By S. 25 the royalties must be paid to the N.L.T.B. It is apparent from the foregoings that the only way in which native land can be alienated or commercialised is by the powers vested in the N.L.T.B. and control and management of the income therefrom is vested in the N.L.T.B. for the benefit of the native beneficial owners.

In considering the definition of "owner" in S. 2 of the Act as a 'person holding or entitled to the rents and profits', the learned magistrate noted that the N.L.T.B. were entitled to retain 25% of the rents under S. 14(1) of the N.L.T. Ord. to cover the cost of managing alienated native land. He regarded that power as sufficient to construe them as owners within that definition and with respect I concur in the magistrate's view. In addition I also consider that the N.L.T.B. can be regarded as an owner because it is a person "holding the rents and profits" of alienated native land. They are responsible for collecting the rents and profits and once collected they hold them for the benefit of the native proprietory unit i.e. to pay the mataqali who are the beneficial owners of the land. The Board's powers of managing monies received are very wide. Thus S. 14(2) enacts that purchase money from a sale or other disposition of native land can be distributed among the beneficiaries or invested and the proceeds from the investments may be distributed. If they retain investments purchased from profits that surely is tantamount to holding the profits.

Why should the provisio deliberately state that the owners of unalienated native land are the proprietory unit? Surely the legislature must have contemplated that once the land is alienated then another owner is substituted for the proprietory unit or an additional owner comes into existence at the time of alienation.

I was referred to Lautoka Action 249/76 Vinodakandra Shankarbhai Patel & Ors. v Rajendra Prasad in which my then learned brother Stuart J. held that the mataqali of alienated land were owners thereof under S. 2 of the Act. The learned judge was not considering liability for the rates but entitlements to be registered as voters in Ba town. Nevertheless his interpretation of the meaning "owner" if correct would be of great weight. He based his opinion on the members of the mataqali being entitled to the rents from the alienated land. I would not seek to differ from his viewpoint. However, as I have been at pains to explain the N.L.T.B. are also entitled to a portion of the rents up to 25% and in addition they are also persons holding the profits from alienated land. In other words, for the purpose of S.2 of the Act the mataqali and the N.L.T.B. both being entitled to the rents are owners and in that connection it should be noted that the provisio to S.2 does not suggest that the proprietory unit ceases to own the native land once it has been alienated. The town council are at liberty to place the mataqali and the N.L.T.B. on the roll of ratepayers but it is obviously easier for the Town council to seek payment from the N.L.T.B. than to try and collect from the various members of the mataqali.

I was also referred to the judgement of my learned brother Kermode J. in A.27/73 Nausori Town Council v N.L.T.B. which was also a claim for arrears of rates on native land. In that case the land was unalienated native land and it is clearly fell within the provisio to S. 2 of the Act thereby placing responsibility for the rates upon the proprietory unit. It has no application to alienated land.

The appeal is dismissed and the decision of the learned magistrate upheld.

The appellant will pay the costs hereof to be taxed.

(Sgd.) J.T. Williams

JUDGE

LAUTOKA,
3rd August, 1979.