Malinavitilevu v Uluivuda [2010] FJSC 1; CBV0005.2005 (29 January 2010)

IN THE SUPREME COURT OF FIJI
AT SUVA

Civil Appeal No. CBV 0005/2005

On Appeal from the Fiji Court of Appeal
Civil Appeal No. ABU 002 of 2004 and HCF Action: HBC 69/1994L]

BETWEEN:

JOSUA MALINAVITILEVU
(On Behalf of Yavusa Sabutoyatoya) Of Wayasewa, In Yasawa
(PETITIONER)
(Cross Appellant in Fiji Court of Appeal)

AND:

RATU ILOILOVATU ULUIVUDA
(On Behalf Of Yavusa Sabutoyatoya Of Viseisei Village in Vuda
(FIRST RESPONDENT)
(First Respondent in Court Of Appeal)

AND:

NATIVE LAND TRUST BOARD
(A Statutory Body Under The Native Land Trust Act)
(SECOND RESPONDENT)
(Second Respondent On Cross Appeal in Fiji Court of Appeal)

COUNSEL: I. FA for the Petitioner
S. LEWENIQILA for the First Respondent

DATES OF HEARINGS AND SUBMISSIONS BEFORE FORMER CHIEF JUSTICE, FATIAKI:
23RD NOVEMBER, 12TH DECEMBER 2005
16TH FEBRUARY, 24TH MARCH, 23RD JUNE,
21ST SEPTEMBER, 6TH & 20TH OCTOBER 2006, :06TH NOVEMBER 2006.

DATE OF RULING: 29th JANUARY 2010.

BY HON. JUSTICE BYRNE, ACTING PRESIDENT, FIJI COURT OF APPEAL

RULING

INTRODUCTION

[1.0] I have become seised of this application pursuant to powers conferred on me by Section 13 on the Administration of Justice Decree 2009. That section states:

Section 13 : The Supreme Court consists of:

(a) The Chief Justice, who is to be President of the Supreme Court;

(b) Such other Judges as are appointed as judges of the Supreme Court;

(c) The Justices of Appeal; and

(d) The puisne judges of the High Court

It is desirable in the interest of Justice that following the resignation of Chief Justice Fatiaki on the 18th of January 2007 a Ruling be given on a motion by the Petitioner dated the 30th of September 2005 that the Petitioner be granted an extension of time in which to lodge in the Supreme Court a Petition and Affidavit in support of an application to the court for special leave to appeal under Section 122(2)(b) of the 1997 Constitution.

[2.0] The motion was issued following a judgment of the Court of Appeal dated 29th July 2005 relating to a judgment by Gates, J (as he then was) in the High Court at Lautoka on the 12th of November 2003. The proceedings were commenced in 1994 in the High Court by Timoci Nagaga Naulivou suing on his own behalf and on behalf of the Yavusa Sabutoyatoya of Wayasewa. Following his death, his brother the present Appellant was substituted with the leave of the Court. Originally there was only one defendant in the High Court the Native Land Trust Board (the Board). The First Respondent in his capacity as Head of the Yavusa Sabutoyatoya Viseisei was not added as a Defendant until November 2004.

[3.0] The High Court’s judgment was appealed by the Second Respondent and a Cross- Appeal was filed by the present appellant. In June 2005 the Second Respondent filed a ‘Notice of Discontinuance’.

[4.0] THE SUBJECT MATTER OF THE PROCEEDINGS

The proceedings concerned two islands Vomo Levu and Vomo Lailai which are situated about 22 kilometres North West of Lautoka in the province of BA. A luxury hotel and other developments have taken place on Vomo after a native lease for Tourism purposes was granted by the Native Land Trust Board to OFFSHORE RESORTS LIMITED in 1989. The annual rent paid by the lessee at the time of the Court of Appeal Judgment was not less than $100,000.00. The parties have been unable to agree on how the receipts from the lease should be distributed.
In the opening paragraph of his judgment in the High Court Gates, J stated that the case called for a decision on what type of land holding is in dispute, who owns the land, and to whom should the income derived from it be distributed.

[5.0] It is unnecessary for the purpose of this ruling to mention in any detail the evidence before Gates, J and the arguments in the Court of Appeal. At the end of a 15-page judgment Gates, J made the following orders:-

1. CT Register 12 Folio 1019, the land title to Vomo Island, which includes the islands of Vomolevu and Vomo lailai is a freehold.

2. The subject freehold is owned by the two yavusas, Sabutoyatoya (Viseisei) and Sabutoyatoya (Wayasewa) as owners in common.

3. The two yavusas are separate yavusas.

4. The income from the subject freehold is to be distributed on the basis of 50% of the income to each yavusa.

5. With the two yavusa’s distribution should follow the distribution as laid down in Regulation 11 of the Native Land Trust (Leases and Licences) Regulations Cap. 134.

6. Liberty to the parties to apply for directions on Trusteeship, distribution or correction of title matters.

[6.0] The Court of Appeal in its judgment confirmed Orders 1,3, and 6 of the High Court which were not the subject of Appeal.

It dismissed the appeal against Order no. 2 and set aside Orders 4 and 5. Instead it ordered that profits derived from the lease were to be distributed equally to all registered members of the two co-owning yavusas. It made no order as to costs.

[7.0] By his Motion of the 30th of September 2005, the Petitioner sought an extension of time in which to lodge a petition of appeal to this court. In an affidavit in support of the petition the petitioner acknowledged that the application was made out of time. The delay in fact was two and a half months. The reasons advanced by the Petitioner for not appealing to the Supreme Court in time were that he and his yavusa had expected their Chief, the First Respondent, to come to Viseisei village in accordance with his custom every weekend but that the Petitioner was informed that their Chief would be on leave until 20th of September 2005.

[8.0] The petitioner and his yavusa waited until the end of September 2005 to discuss their position with him. In paragraph 13 of the affidavit of 30th September 2005 he stated: "We waited till end of September (30th September, 2005) as by traditional protocol we had committed ourself to seeking audience, then we had our counsel to write a letter informing our Chief through his counsel of our having waited that we were now seeking extension of time to seek special leave to appeal".

[9.0] The purpose of the proposed interview with the First Respondent was to see whether there was an alternative way for him and his yavusa to accept the Petitioner’s ownership of the land as was on the title and revert to the traditional understanding that the incumbent of the position of Tui Vuda have food on his table from the island.

[10] The Petitioner stated in paragraph 16 of his affidavit that he and his yavusa realized that new matters could only be raised on appeal if there were special circumstances and the Petitioner believed there were although he did not specify them.
In a submission dated 21st November 2005, it was stated that the delay in presenting the petition was due to the parties wanting to hold talks and to commitments of the First Respondent cancelling talks already agreed. It was submitted that there was no prejudice caused by the delay.

[11] It was also submitted that there was a traditional necessity for the petitioner to try and resolve the matter with the First Respondent as his Chief before he pursued the matter in the Supreme Court.
The application for extension of time was opposed by the First Respondent.

[12] Rule 20 (4) of the Supreme Court Rules 1998 (Dealing with Non-compliance with Conditions of Appeal or Petition provides:-

"....An appellant or petitioner may apply to the Court for an extension of time in which to fulfil the conditions of appeal or petition imposed by these Rules and the Court may, for good and sufficient cause, grant an extension of time subject to any conditions the Court imposes."

[13] TRADITION AND CUSTOM IN FIJI SOCIETY

Indigenous Fijians attach considerable importance to custom and tradition but these can in no way override the statute or common law. If the Petitioner considered himself obliged to abide by what he calls ‘traditional necessity’ he was quite entitled to do so but this does not give him a warrant for not complying with the rules of the Court.

As Sir Moti Tikaram the then President of the Court of Appeal said in Uqeuqe v. Housing Authority of Fiji ABU 0042 of 1998, at page 5 of his Decision of 8th August 1997: " When an applicant fails to apply for leave to appeal within the time prescribed for appealing his status undergoes a radical change. In the absence of any satisfactory explanation for such a failure the omission can be fatal. In any case, the applicant will, in such a situation carry a heavy burden to satisfy the court that leave ought to be granted in the interest of justice and that the time for appealing be extended".

[14] The Petitioner changed his solicitors and in his submission dated the 6th October 2006 it was stated in paragraph 5:

"The applicant’s grounds of Appeal raise far-reaching questions of law, matters of great public importance and of general importance in the administration of justice. They related to issues concerning the tenure of freehold land held by indigenous Fijian landowning units and the proper method of distribution of income from the free hold lands to the indigenous landowners."

[15] I cannot agree with this submission. The issue of indefeasibility of title was not pleaded before the Trial Judge at first instance. An attempt was made to do this in the Court of Appeal but rejected by that Court which on page 11 of its judgment ruled that,: "The Plaintiff is now attempting to raise on appeal an entirely new case inconsistent with that presented to the High Court. It is however established law that such a course is not open to it. (see ex parte Reddish, in re Walton [1877] UKLawRpCh 186; (1877) 5 Ch D 882)".

With great respect I do not accept that the appellant’s grounds of appeal raise far-reaching questions of law, matters of great public importance and of general importance in the administration of justice as claimed by the appellant.

[16] The dispute between the parties here was not a matter of general public importance but of presumably some importance only to those members of the yavusas concerned with the litigation.

[17] The Appellant/Applicant states in paragraph 7 of his submission of the 6th of October 2006 that the grounds raised in his appeal have not been dealt with by any Court in Fiji. This statement in itself is sufficient reason for my refusing the extension of time sought by the Appellant, for this Court has no jurisdiction to entertain entirely new issues which were never dealt with in the Courts below.

For these reasons I refuse the application for extension of time. There will be no order for costs.

Dated at Suva this 29th day of January 2010.

JOHN E. BYRNE
ACTING PRESIDENT, FIJI COURT OF APPEAL