Satala v Bouwalu [2008] FJSC 20; CBV0005.2006S (13 October 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0005 of 2006S
(Fiji Court of Appeal No

BETWEEN:

JONI SALUEIROGO SATALA
aka JOPE SAULIROGO SATALA
Petitioner

AND:

VILIAME BOUWALU
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court

Hearing: Wednesday 16 July 2008
Monday 21 July 2008
Wednesday 23 July 2008

Counsel: 16 July 2008
Mr T Fa and Mrs A Tavo for the Petitioner
Mr K Vuataki for the Respondent

21 July 2008
Mr T Fa and Mrs A Tavo for the Petitioner
Mr K Vuataki for the Respondent
Mr R Green for Native Lands Commission

23 July 2008
Mr T Fa for the Petitioner
Mr K Vuataki for the Respondent
Mr R Green for Native Lands Commission

Judgment Monday 13 October 2008

JUDGMENT OF THE COURT

[1] The petitioner, Ratu Joni Satala (Ratu Joni) seeks special leave to appeal from the Court of Appeal which, on 7 November 2006 reversed the decision of Finnigan J of 8 June 2005. The letter had made an order in the nature of mandamus requiring the Native Lands and Fisheries Commission (the Commission) and the Minister for Fijian Affairs to convene a Commission of Inquiry into the disputed succession to the title of Turaga Taukei Vidilo (the title) pursuant to s 17(1) of the Native Lands Act cap 133 (the Act). This relevantly provides:

"In the event of any dispute arising between native Fijians as to the headship of any division or subdivision of the people having the customary right to occupy and use any native lands the ...Commission may inquire into such dispute and, after hearing evidence and the claimants shall decide who is the proper head of such division or subdivision and such person shall be the proper head of such division or subdivision ..."

[2] The dispute arose between the petitioner and Ratu Viliame Bouwalu (Ratu Viliame) following the death of Ratu Malelili Naulivou (Ratu Malelili) on 11 August 1999. In 1991 the Commission decided an earlier dispute as to the succession to the title between Ratu Malelili, the respondent Ratu Viliame, and his first cousin Ratu Nacanieli Nava (Ratu Nacanieli).

[3] A translation of the 1991 decision in the judgment of the Court of Appeal in Ratu Nacanieli Nava v The Native Lands Commission [1994] FJCA 34 included the following:

"... the Commission has decided that a further time be given to Ratu Viliame and Ratu Nacanieli to prepare them for the position of leadership that awaits them in the future. The Commission thereby confirms that the chiefly position properly belongs to them ... but the Commission is also satisfied that neither of them receives sufficient support amongst the members of the Tokatoka at present. ... In the circumstances it is the decision of this Commission that Ratu Malelili ... should now assume the position of Taukei Vidilo but in an acting capacity or status only, and that this appointment will be confined to him alone and will not extend to his children or his family ... When Ratu Malelili’s leadership ends ... then the position will be assumed by either Ratu Nacanieli or Ratu Viliame depending on who satisfies this Commission as commanding the majority support from the members of the Tokatoka."

[4] Ratu Nacanieli and Ratu Viliame applied to the High Court for leave under O 53 r 3 to commence proceedings to judicially review this decision but this was refused by Ashton-Lewis J. Ratu Nacanieli’s appeal against this decision failed because of s 100(4), the privative section in the 1990 Constitution: Nava v Native Lands Commission [1994] FJCA 34. The 1991 decision of the Commission stood and Ratu Malelili held the title until his death.

[5] Ratu Nacanieli died during the lifetime of Ratu Malelili and on the latter’s death the only claimant from the elder branch was Ratu Viliame. However the petitioner, Ratu Joni, the eldest son of Ratu Malelili also claimed the title. Meetings were held in the area and each party and their supporters made representations to the Commission in support of their claims.

[6] On 5 November 1999 the Chairman of the Commission wrote a letter addressed to the Tokatoka Navitua, Mataqali Vidilo, and Yavusa Namoli. The translation in evidence reads:

"Your letter of support for Ratu Joni ... to be Turaga ni Yavusa of Vidilo has been received by the Native Land Commission.

It will be clear to you that this position was disputed in 1991 by Ratu Malelili ... Ratu Nacanieli ... and Ratu Viliame ...

It is clear from this decision of dispute in 1991 for Ratu Malelili ... to take leadership role but to only end with him and not to include any of his descendants.

It was also confirmed in the decision in 1991 that leadership be returned to one of either Ratu Nacanieli ... or Ratu Viliame ... and confirmed by Native Land Commission to have the trust and support of the majority of the members of the Tokatoka to take the position.

The 1991 decision concerned the three claimants ...

It is witnessed that both Ratu Maleli ... and Ratu Nacanieli ... are deceased and only Ratu Viliame is alive.

The Native Land Commission has confirmed that since Ratu Viliame ... is left alive, that it is correct for him to take leadership position of Yavusa Vidilo." (sic)

[7] Attempts on behalf of the petitioner to persuade the Commission to change its mind and hold a formal inquiry under s 17(1) were unsuccessful and on 28 March 2002 his solicitors filed a notice of motion for leave to apply for judicial review to compel the Commission to convene a commission of inquiry.

[8] In a reserved judgment on 8 June 2005 Finnigan J held that a dispute as to the title had arisen between Ratu Joni and Ratu Viliame, following the death of Ratu Malelili, which the Commission had not decided under s 17(1) before it wrote the letter of 5 November 1999. He considered that "it is proper that the Commission should enquire into the dispute which would include hearing evidence and hearing the claimant [Ratu Joni] and that the Commission is then required by s 17 to decide who is the proper holder of the title."

[9] Finnigan J rejected the submission for Ratu Viliame that the word "may" in s 17(1) conferred a discretion, and that the Commission was not bound to hold an inquiry, without giving reasons. He made an order of mandamus requiring the Commission and the Minister to convene a commission of inquiry under s 17(1).

[10] On 10 November 2006 the Court of Appeal (Eichelbaum, Penlington and Scott JJA) reversed the decision of Finnigan J and dismissed Ratu Joni’s claim for judicial review. The solicitors for Ratu Viliame did not join either the Commission or the Minister as respondents to the appeal. While the Court noted this it did not require their joinder.

[11] The Court of Appeal held that the appeal turned on the effect of the Commission’s decision in 1991. At the time this was challenged in the High Court by Ratu Viliame and his first cousin, and by the latter alone in the Court of Appeal but without success. In its 2006 decision the Court of Appeal noted that in 1991 the Commission had not merely decided the immediate dispute, it had laid down the line of succession and specifically excluded Ratu Malelili’s children. It had then decided that the successor following the death of Ratu Malelili should be one of the two named cousins "providing he was able to demonstrate support within the tokatoka".

[12] The Court of Appeal said that Ratu Viliame’s eligibility "could not be ... impugned on the ground of lack of support."

[13] Ratu Joni applied for special leave seeking reinstatement of the judgment of Finnigan J. Although the Commission was a necessary party, because an order was sought against it, it was not joined until the end of the first day of the hearing on 16 July. The case was then adjourned to give it an opportunity to appear and make submissions.

[14] On 21 July 2008 Mr Green appeared for the Commission and the Court identified the issues which had arisen about the Commission’s powers under the Act. Mr Green informed the Court that the Commission wished to be heard. It was common ground that the Minister was not a necessary party.

[15] Directions were given for the filing of written submissions on behalf of the Commission and for replies from the other parties. The case was then adjourned to 23 July 2008 for further oral argument. Mr Green prepared and served his written submissions with commendable speed and the Court was able to conclude the hearing on 23 July 2008 when judgment was reserved. The Court is indebted to Mr Green for the assistance he gave the Court at such short notice.

[16] The petitioner seeks judicial review of the decision of the Commission evidenced in its letter of 5 November 1999. Broadly speaking, judicial review is available on one or more of three general grounds: illegality (such as absence of power), irrationality, and procedural impropriety (usually a denial of natural justice): Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 per Lord Diplock.

[17] The courts have no power to review the merits of such decisions, and must not usurp the proper role of the decision maker.

[18] The petitioner challenged the decision of the Commission for illegality and procedural impropriety. He claimed that a dispute had arisen, and the Commission was bound to conduct a formal inquiry under s 17(1). He also claimed that its decision, to treat the dispute as settled by its 1991 decision, denied him natural justice because he was not a party to the earlier inquiry and was not heard before that decision was given.

[19] Section 17(1) confers on the Commission the power, after a formal inquiry, to decide "who is the proper head" of the relevant division or subdivision. It exercised this power in 1991 when it made its decision that, at that time, the proper head was Ratu Malelili. The section does not expressly confer any power to decide who the proper head "will be" in the future, nor does it expressly empower the Commission to decide between competing lines of succession.

[20] However the absence of an express power to resolve these matters cannot confine the scope of a formal inquiry under the section. If, as in 1991, the dispute is between candidates from different male lines, a decision that a suitable candidate from one of those lines "is the proper head" will necessarily decide the line of succession in the future, provided there is a suitable candidate from the preferred line.

[21] This is what happened in 1991 when the Commission stated on page 11 of its report quoted by the Court of Appeal in this case:

"Evidence in this inquiry clearly shows that there is a well-established customary rule or practice whereby headship is always given and taken by the members of the eldest male family ... The present position clearly indicates that amongst the three claimants the two cousin[s] ... Ratu Nava and Ratu Viliame have a much stronger claim to the position since they are from the eldest male family while Ratu Malelili ... comes from the younger male family. With regard to the headship of such chiefly positions the younger male family can only by-pass and take over such chiefly positions in the event that no-one in the eldest male family is ready to take over the position and even then this can only be in an acting position."

[22] This was the basis of the Commission’s decision that, at that time, Ratu Malelili was the proper head, but should only hold the title for life. Neither Mr Vuataki nor Mr Green could identify any grant of power to the Commission which enabled it to decide who the future head should be, or the male line from which he should be selected. Neither suggested that s 16 could be a source of that power.

[23] Section 100(4) of the 1990 Constitution, which was then in force, contained a relevant privative section:

"(4) For the purposes of this Constitution the opinion or decision of the Native Lands Commission on

(a) matter relating to and concerning Fijian customs, traditions and usages or the existence, extent, or application of customary laws; and

(b) disputes as to the headship of any division or subdivision of the Fijian people having the customary right to occupy and use any native lands,

shall be final and conclusive and shall not be challenged in a Court of law."

[24] Paragraph (b) of s 100(4) covers the decision of the Commission in 1991 determining who was entitled to the headship of the Tokatoka, and made it ‘final and conclusive’. However, the Commission’s opinion on a matter within para (a), concerning Fijian customs or the application of customary laws, is also made final and conclusive. Paragraph (a) has a wider operation than para (b).

[25] Counsel could not identify any section in the Act which authorises the Commission to give an opinion on any of the matters within para (a). Paragraph (a) assumes the existence of such a power and must be read as conferring power on the Commission to give an opinion on any of the identified matters identified in para (a). Insofar as the Commission’s 1991 reasons expressed an opinion on a matter within para (a), s 100(4) made its reasons final and conclusive and to that extent its reasons were not open to judicial review.

[26] While s 100(4) remained in force it protected the Commission’s decisions within its jurisdiction: Nava v Native Lands Commission [1994] FJCA 34, Natauniyalo v Native Lands Commission [1998] FJCA 41, but did not exclude review for jurisdictional error: Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147; Vosailagi v Native Lands Commission [1989] 35 FLR 116; Natauniyalo v Native Lands Commission [1998] FJCA 41.

[27] The repeal of the 1990 Constitution did not affect the previous operation of s 100(4) in relation to the 1991 decision: Interpretation Act cap 7 s 18(3)(b).

[28] The 1991 decision, the opinions of the Commission, and its informal decision evidenced by the letter of 5 November 1999 had practical effect and could not be ignored: Calvin v Carr [1979] UKPC 1; [1980] AC 574, 590.

[29] There can be no doubt that "a dispute as to the headship" arose on the death of Ratu Malelili but s 17(1) does not require the Commission to hold a formal inquiry into every such dispute. It provides that the Commission "may inquire into such dispute". Prima facie this does not impose a mandatory duty but confers a discretion. However, in an appropriate context, the word "may" or its equivalent confers a power which must be exercised in a proper case. In Pelling v Families Need Fathers Ltd [2001] EWCA Civ 1280; [2002] 2 All ER 440 CA Mummery LJ said at 446-7:

"In its ordinary and natural meaning the word ‘may’ is apt to confer a discretion or power. It is true that there are certain situations where a discretionary power is conferred for the purpose of enforcing a right and is coupled with an obligation or duty to exercise the power, when required to do so, for the benefit of the person who has the right ... this is not such a case."

[30] The leading case is Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, 241 where Lord Blackburn said:

"I do not think the words ‘it shall be lawful’ are in themselves ambiguous at all. They are apt words to express that a power is given; and as, prima facie, the donee of a power may either exercise it or leave it unused, it is not inaccurate to say that, prima facie, they are equivalent to saying that the donee may do it; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required on their behalf."

[31] Lord Selborne said at p 235:

" the meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge, or a public officer to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved ... from the context, from the particular provisions, or from the general scope and objects of the enactment conferring the power."

[32] In our judgment the power in s 17(1) was not conferred for the purpose of enforcing a right, meaning in this context, a private right: Julius v Lord Bishop of Oxford (above) at 235, 243, 244. A claimant to a Fijian title does not have a private right, he only has a claim to such a right.

[33] The Commission is not a Court and has no inherent power to control abuses of its process. If s 17(1) imposed an imperative duty it would be bound to hold a formal inquiry in every case even if the claim was frivolous or vexatious. The absence of any express or implied power to control such abuses would encourage such claims which would create uncertainty and division within Fijian communities. This favours the recognition of a discretion as the House of Lords held in a similar context in Julius v Bishop of Oxford (above).

[34] The question came before Tuivaga CJ in Vosailagi v Native Lands Commission [1989] 35 FLR 116, 128 where his Lordship said:

"Turning to the application of s 17(1) ... it should be noted that the section does not cast any obligation or duty upon the Commission to hold an inquiry whenever a dispute over headship ... arises. The words of the section ‘the Commission may enquire into such a dispute ...’ suggest that the holding of an inquiry is discretionary and not mandatory on the part of the Commission."

[35] This decision has stood for nearly 20 years, and it was not suggested that it had ever been doubted. It should be followed. In our judgment s 17(1) confers a discretionary power on the Commission which it is not bound to exercise.

[36] The Commission was entitled to take the view, expressed in its letter of 5 November 1999, that the dispute that arose on the death of Ratu Malelili was not a new one but an attempt to reopen an old one that the Commission had resolved in 1991. By deciding that Ratu Malelili should only hold the title for life the Commission rejected the claim of the junior male line to the title after his death and decided that it should then revert to the elder branch. The Commission had no duty to hold a formal inquiry after the death of Ratu Malelili and the petitioner has not shown that its exercise of discretion miscarried.

[37] The petitioner’s final point was that he has been denied natural justice because his claim was rejected without a proper hearing. He submitted that he was not a party to the 1991 dispute, and was not given an opportunity to be heard and to call evidence either in 1991, or after the death of Ratu Malelili in 1999.

[38] This submission must also be rejected. When the Commission conducts a formal inquiry it is relevantly a "judicial" tribunal whose decisions attract the res judicata doctrine: Spencer Bower, Turner and Handley "Res Judicata" 1996 pp 13-15. In Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 the High Court of Australia considered the effect of a 1954 decision of a Board appointed ad hoc under s 9 of the Land Ordinance 1911-1953 of Papua. It decided that certain land was owned by the Administration. In 1966 the claim was renewed by others in the same interest.

[39] The majority, comprising Menzies, Gibbs and Stephen JJ, held that the 1954 decision created a res judicata estoppel which bound the later claimants in the same interest Gibbs J, whose judgment on this issue was adopted by the others in the majority, considered the question at length (pp 449-456). He said at 453:

"The use of the phrase ‘judicial tribunal’ in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by enquiring to what extent the tribunal exercises judicial functions or whether its status is judicial or administrative ... The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a Court, and its jurisdiction is derived from statute ... the Board was appointed to decide the case, and to give a decision and these words, prima facie, and in the absence of any indication to the contrary, import that the Board was to make a binding determination."

[40] Although Ratu Joni himself was not a party to the 1991 inquiry, his father was, and as the eldest son his claim to the title depends on his relationship with Ratu Malelili and is derived through and under him.

[41] Res judicata estoppels bind not only the original parties but also their privies. In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, 910 Lord Reid said:

" ... there is no doubt that the requirement of identity of parties is satisfied if there is privity between a party to the former litigation and a party to the present litigation ... there must be privity of blood, title or interest."

[42] Ratu Joni is a privy in blood and interest of his father and is bound by the res judicata estoppels created by the 1991 decision. Because he is a privy of his father he has not been denied natural justice because the Commission heard his father who represented, not only himself, but all those, such as Ratu Joni, who would later claim through or under him.

[43] None of the grounds for judicial review have been established. We therefore make the following orders:

(1) Special leave granted.

(2) Dispense with the filing of the Notice of Appeal and further compliance with Rules.

(3) Appeal dismissed.

(4) The appellant is to pay the costs of the first and second respondents.

The Hon Justice Keith Mason

The Hon Justice Kenneth Handley

The Hon Justice Ronald Sackville