Tawadokai v State [2022] FJSC 13; CBV0008.2019 (29 April 2022)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CIVIL PETITION NO. CBV 0008 of 2019
[Court of Appeal No. ABU 0079 of 2016]

BETWEEN : SEMI TAWADOKAI

Petitioner

AND : (1) THE STATE

(2) iTAUKEI LANDS APPEALS TRIBUNAL

(3) SEMI MATAI BESE NACANIELI CAMA

Respondents

Coram : The Hon. Mr. Justice Anthony Gates

Judge of the Supreme Court

The Hon. Mr. Justice Brian Keith

Judge of the Supreme Court

The Hon. Mr. Justice Priyasath Dep

Judge of the Supreme Court

Counsel : Mr F. Vosarogo for the Petitioner
Ms M. Motufaga for the 1^st and 2^nd Respondents
` No appearance for the 3^rd Respondent

Date of Hearing : 12 April, 2022

Date of Judgment : 29 April, 2022

JUDGMENT

Gates, J

[1] I have had the advantage of reading Keith J’s judgment in draft. I agree with it, with its reasoning and with the final orders proposed.

Keith, J

Introduction

[2] The title Tui is a venerated title in Fiji. It is the title given to the chief of the local Yavusa, which approximates to what might be called a clan. Because the title is one which gives its holder much respect and esteem, there are occasionally disputes about who should be appointed the Tui. Different districts have different practices when it comes to appointing their Tui, and there is no uniform criterion in Fiji for choosing one. Should it be lineage? Should it be suitability for the office? Or should it be a combination of the two?

[3] The body in Fiji which arbitrates in disputes of this kind is the iTaukei Lands and Fisheries Commission (“the Commission”). The Commission adjudicates on disputes regarding land ownership and fishing rights, but also on customary chiefly titles. The Commission is the custodian of various registers for the iTaukei which are maintained and updated from time to time. They contain records which facilitate the resolution of disputes. The most significant of these registers is the Vola ni Kawa Bula (“the VKB”). Appeals from decisions of the Commission lie to the iTaukei Lands Appeals Tribunal (“the Tribunal”). Except in clearly defined circumstances, adjudications by the Tribunal are final, and cannot be challenged in the courts.

The facts

[4] The petitioner in this case is Semi Tawadokai (“ST”). He is the grandson of Semesa Vakaloloma (“SM”) who held the title of Tui Vanua of the Yavusa Nauluvatu on the island of Vanuavatu. SM was already holding that title when the Commission (then called the Native Lands Commission) began the registration in 1939 of chiefly titles. On 26 December 2011, ST was installed as the Tui Vanua in a traditional ceremony.

[5] Semi Matai Bese Nacanieli Cama (“SMB”) is the great grandson of SM’s older brother. That means he is ST’s first cousin once removed. On the day of ST’s installation as the Tui Vanua, SMB wrote to the Commission opposing ST’s appointment and installation. Various attempts to resolve the dispute by mediation took place in 2012, but an amicable settlement of the dispute could not be reached, and the dispute was referred to the Commission for a hearing. Evidence was taken from various members of the Yavusa including ST and SMB. In due course the Commission ruled in favour of ST, and he was confirmed as the Tui Vanua.

[6] SMB and others who were interested in the outcome of the dispute appealed against the ruling of the Commission to the Tribunal. Prior to the hearing of the appeal, the Secretary to the Tribunal wrote to SMB, with a copy to ST. They letter said that it was hoped that they would be prepared to give evidence and to answer the Tribunal’s questions, and to send to the Tribunal in writing any information which they may have forgotten to produce to the Commission and which they thought could have led the Commission to come to a different conclusion. The Tribunal heard the appeal on 2 December 2013, and on 26 February 2014, it ruled in favour of SMB. Accordingly, SMB was named as the Tui Vanua in place of ST.

[7] ST applied for leave to apply for judicial review of that ruling. Leave was granted to apply for judicial review on a limited number of grounds, but the claim was dismissed by Amaratunga J. ST appealed to the Court of Appeal (Lecamwasam, Guneratne and Jameel JJA), but that appeal was dismissed as well. ST now applies for leave to appeal to the Supreme Court.

The ouster clause

[8] Section 7(1) of the iTaukei Lands Act 1905 (then called the Native Lands Act) provides that any determination of the Tribunal shall be final. That is reinforced by section 7(5) which provides:

“Decision of the Appeals Tribunal are to be final and conclusive and cannot be challenged in a court of law.”

That is not surprising. The Tribunal is a highly specialized body addressing issues which people not steeped in the history and culture of Fiji might be unfamiliar with. However, the position is not quite as absolute as the language might suggest. You can challenge a determination of a statutory body, even when that determination is said to be final, if there has been some flaw in the decision-making process – for example, if the body failed to comply with the rules of natural justice. You can also challenge a determination of such a body if it has exceeded its jurisdiction by doing something which it did not have the statutory power to do. That principle has been applied to the Tribunal: see Ramasi v The Native Lands Commission and others [2015] FJCA 83.

Fresh evidence

[9] One of the respects in which it is said on behalf of ST that the Tribunal exceeded its jurisdiction was by taking into account evidence which had not been considered by the Commission. The relevant provision is section 7(3), which provides, so far as is material:

“For the purpose of determining an appeal the Appeals Tribunal shall have power to hear further evidence, but only if all of the 3 following conditions are satisfied –

(a) if it is shown that the evidence could not have been obtained with reasonable diligence for use at the inquiry before the Commission ... ;
(b) if the further evidence is such that, if given, it would probably have an important influence on the decision; or
(c) if the evidence is such as is presumably to be believed.”

If the Tribunal heard evidence which had not been placed before the Commission, and if any of the three conditions in section 7(3) were not satisfied, the Tribunal would have done something which it did not have the statutory power to do, and that would have triggered the Court’s powers of intervention. That is relevant to the first of the four grounds of appeal, and it is to that ground that I now turn.

Ground of appeal (1)

[10] The first ground of appeal relates to a particular feature of the evidence which the Tribunal took into account. That evidence was a Tukutuku Rabara. A Tukutuku Rabara is a history of a Yavusa, and a Tukutuku Rabara of Yavusa Nauluvatu was taken on oath before the Commission in 1939. That Tukutuku Rabara was considered by the Commission in 2013 when it was adjudicating on the current dispute, and the Tribunal understandably took it into account. But the Tribunal also had another Tukutuku Rabara. That was a private one compiled by Josepa Waqa. That had not been before the Commission. It could therefore only have been considered by the Tribunal if it satisfied the three conditions for admissibility in section 7(3). There is no reference in the Tribunal’s judgment to section 7(3), and that rather suggests that the Tribunal did not consider whether the three conditions for admissibility had been satisfied.

[11] When the lawyers acting for ST filed his claim for judicial review in the High Court, they did indeed allege that evidence which had not been before the Commission had been considered by the Tribunal, even though the conditions in section 7(3) had not been satisfied. But they did not identify what that evidence was. The ground – which was para 3(c) in ST’s statement of his case – merely said:

“The evidential material taken into account by the [Tribunal] from evidence that was not taken in the first instance by the Commission do not pass the threshold test as set out by the Section 7(3) of the Taukei Lands Act, Cap 133.”

The judge was not told that this ground related to the Tukutuku Rabara compiled by Mr Waqa. That was confirmed by the judge in his judgment. In para 14, he wrote:

“The counsel for the Applicants main contention from the initiation of this action was that the Appeals Tribunal had considered fresh evidence, but when the translations were available he could not allude to such an action by the Appeals tribunal.”

In fact, the Tukutuku Rabara compiled by Mr Waqa was considered by the Tribunal. The Tribunal referred to it on pages 26, 28 and 30 of the English version of its judgment. But the judge cannot be blamed for overlooking that. He had not been told that the criticism of the Tribunal related to Mr Waqa’s Tukutuku Rabara.

[12] The position was not improved when the case got to the Court of Appeal. The notice of appeal did not complain that the Tribunal should not have considered Mr Waqa’s Tukutuku Rabara. Nor did the written submissions filed on behalf of ST in support of the appeal – even though they were 65 pages long. No mention of Mr Waqa’s Tukutuku Rabara was made at all. In this context, I have not overlooked para 27 of the judgment of the Court of Appeal which reads:

“The Appellant argues that the Tribunal went outside its jurisdiction by taking into consideration material outside the Vola ni Kawa Bula (‘VKB’), and that the consideration of any other material is illegal. The respondent argued that the ‘Tukutuku Raba’ was a record that was available to the Commission and that therefore it was not irrelevant.”

The first sentence in that passage shows that it was being said on ST’s behalf in the Court of Appeal that the Tribunal had considered inadmissible material. Indeed, it looks from the second sentence in that passage that ST’s counsel must have referred to a Tukutuku Rabara. But it is also plain from that passage that the Court of Appeal thought that he was referring to the Tukutuku Rabara sworn on oath in 1939, not the one compiled by Mr Waqa, because it was the 1939 Tukutuku Rabara which the Commission had both seen and rightly taken into account.

[13] The inescapable conclusion is that the complaint being made to the Supreme Court now – that the Tribunal had wrongly taken into account Mr Waqa’s Tukutuku Rabara – is a new one, raised neither in the High Court or the Court of Appeal. The Supreme Court is very reluctant to allow new grounds of appeal to be argued in the Supreme Court for the first time. It may do so exceptionally if the new ground of appeal raises a pure issue of law on which no further evidence is necessary. But the Supreme Court will be particularly reluctant to allow a new ground of appeal to be argued where the new ground, if successful, would result in further hearings which would have been unnecessary if the ground of appeal had been advanced in the High Court. In this case, if the Supreme Court permitted this new ground of appeal to be argued, and if the ground was successful, the consequence would not be that ST would be named the Tui Vanua. The consequence would be that the case would have to be remitted to the Tribunal for it to consider (i) whether Mr Waqa’s Tukutuku Rabara satisfied the conditions of admissibility in section 7(3), and (ii) if it did not, whether the outcome of the appeal to it would be any different.

[14] I accept that the Supreme Court should allow a new ground to be argued if a substantial and grave injustice might occur if the new ground was not considered. But Mr Waqa’s Tukutuku Rabara went only to one issue before the Tribunal, namely who the successive Tui Vanuas had been over the years. The Tribunal noted that Mr Waqa’s Tukutuku Rabara was only one source for that, and even then it had not been made on oath. In the circumstances, I doubt whether the Tribunal attached much weight to Mr Waqa’s Tukutuku Rabara. If it did not contribute to the outcome, the Tribunal’s alleged error in taking it into account would not take ST’s case further. Accordingly, I do not think that a substantial and grave injustice is likely to occur if the Supreme Court refuses to consider this new ground of appeal. For all these reasons, I would not allow the new ground of appeal to be argued.

Ground of appeal (2)

[15] The second ground of appeal relates to the reliance which the Tribunal is supposed to have placed on the practice in another district about the criteria used for selecting their Tui. It is said that the Tribunal relied on the practice in the District of Tavua that their Tui is selected through the lineage of the eldest male line. That approach is said to have been wrong, and that it was not open to the Tribunal to take account of the practice in another district. In the course of the hearing, we asked Mr Vosarogo who appeared for ST where in the judgment of the Tribunal we would find that the Tribunal relied on the practice in another district – because we had not been able to find it. He was unable to point to any such reliance on the part of the Tribunal. We therefore gave him the opportunity to read the Tribunal’s decision again, and let us know on the following day where such reliance might be found. Mr Vosarogo never got back to us, and we therefore take it that he could not point to anywhere in the Tribunal’s decision where the Tribunal relied on the practice in another district. This ground of appeal therefore falls at the first hurdle.

[16] But there are two other reasons why this ground is unsustainable. First, even if the Tribunal had placed reliance on a non-local practice, that would not have amounted to the Tribunal exceeding its jurisdiction by doing something which it did not have the statutory power to do. In the absence of uniform criteria across the whole of Fiji for selecting a Tui, it was for the Tribunal to decide who should be the Tui Vanua for the Yavusa Nauluvatu. In the present context, that means that it was for the Tribunal to decide whether the application of a non-local practice was the appropriate course to take in this case. Secondly, as Mr Vosarogo expressly conceded in answer to a question from us, this complaint about the Tribunal was not raised either in the High Court or the Court of Appeal. For the reasons given in para 13 above in respect of the first ground of appeal, it is too late to raise the second ground of appeal now.

Ground of appeal (3)

[17] The third ground of appeal relates to whether the Tribunal was entitled to determine who should be appointed the Tui Vanua by looking at sources other than the VKB such as Mr Waqa’s Tukutuku Rabara. The argument is that succession to the title of Tui is by lineage through the eldest male. Since the VKB identified that lineage, the Tribunal was not entitled to look at any sources other than the VKB. This was unquestionably one of the complaints made by ST’s legal team in the High Court: see paras 3(b), 3(f) and 3(h) of the grounds on which judicial review was sought. The High Court rejected those grounds on the basis that they went to the merits of the dispute, ie that it was not a case of the Tribunal doing something which it did not have the statutory power to do. On appeal to the Court of Appeal, it was argued that Amaratunga J had been wrong to conclude that these grounds only went to the merits of the dispute, but the Court of Appeal agreed with Amaratunga J.

[18] However, with disarming candour, Mr Vosarogo conceded – both in the written submissions filed in support of the petition and in oral argument in the Supreme Court – that this argument did indeed go to the merits of the dispute, ie that it could not be argued that the Tribunal did something which it did not have the statutory power to do. In my opinion, Mr Vosarogo was right to make that concession. As I said in connection with the second ground of appeal, in the absence of uniform criteria for the selection of a Tui, it was for the Tribunal to decide whether lineage through the eldest male line was decisive. In other words, it was for the Tribunal to decide whether it was appropriate to keep within the four walls of the VKB, or to take into account other matters as well.

[19] Having said that, Mr Vosarogo contends that this is not quite the end of the story. There may be exceptional cases in which the court needs to address the merits of the dispute. He found support for that in the concurring judgment of Guneratne JA in the Court of Appeal. Guneratne JA said at paras 2 and 3:

“I wish to express my own view on a particular aspect as follows; - merits review is not always outside the pale of Judicial Review for the reason that sometimes review may be inevitable when the balance tips heavily one way ‘and the Court must simply substitute its own opinion’. (Wade & Forsyth. 11^th Ed. P.313, also Edore v Home Secretary [2003] UKPC 81; [2003] 1 WLR 2979). However, this is not the ideal case that merits review.”

In my opinion, the editors of Wade and Forsythe were saying that a merits review might become inevitable if the court thinks that that the balance tips so heavily one way that only one decision is possible. That will arise, for example, when the body whose decision the court is reviewing has to decide between conflicting interests. Thus, in Edore, the Court of Appeal had to decide whether the Home Secretary had struck the right balance between a would-be immigrant’s right to family life and the need for effective immigration control. If there was room for only one view on that topic, the Court would in effect be substituting its own view for that of the Home Secretary.

[20] That has no application to this case. The reason why a merits review could not be allowed here is because a merits review was expressly disallowed by statute. The effect of sections 7(1) and 7(5) was to prevent a merits review by the Tribunal of decisions of the Commission.

[21] For these reasons, the third ground of appeal fails.

Ground of appeal (4)

[22] The fourth ground of appeal relates to what happened in 1939 when the Commission began the registration of chiefly titles. As I have said, ST’s grandfather, SM, was already the Tui Vanua then. The argument is that by declaring SMB, someone not directly descended from SM, as the Tui Vanua in preference to ST who was directly descended from him, the Tribunal was acting inconsistently with the Commission’s decision in 1939 to confirm SM as Tui Vanua. The legal peg on which the ST’s legal team base this argument is issue estoppel.

[23] Issue estoppel arises when an issue has been litigated before, and the same issue arises for determination in subsequent litigation between the same parties. There are at least two reasons why this argument cannot get off the ground. First, what happened in 1939 cannot be classified as litigation. It was an administrative process by which the Commission registered chiefly titles. It recorded the names of the persons who it believed held the various chiefly titles in Fiji. The process was as far from litigation as it could be. Secondly, there was no dispute in 1939 about who the Tui Vanua was. That was confirmed to us by Mr Vosarogo. SM had been the Tui Vanua prior to 1939, and the Commission merely recoded the undisputed fact that he continued to be the Tui Vanua. So there was no determination by the Commission which could be regarded as the resolution of a disputed issue. The Commission merely recorded what it was being told.

[24] In the interests of completeness, it should be added that this ground of appeal was not one of the grounds advanced in the High Court. Mr Vosarogo expressly conceded that. It was, though, a ground of appeal to the Court of Appeal, although there the legal peg on which ST’s legal team hung the argument included res judicata. In my opinion, the argument based on the legal principle of res judicata is fallacious for the same reasons as the argument based on issue estoppel is. It follows that this ground of appeal also fails.

Conclusion

[25] For these reasons, I would refuse ST leave to appeal to the Supreme Court. I see no reason why costs should not follow the event, and I would order him to pay $2,000.00 for the Tribunal’s costs of the appeal to the Supreme Court. No costs should be awarded in favour of SMB: although an interested party to the litigation, no documents have ever been filed on his behalf, and he was not represented in the Supreme Court.

[26] I know that the outcome of this case will come as a great disappointment to ST. There is little I can say to redress that. I also know that his current legal team have done what they could to get over the hurdles which faced them. But this is now the end of the road for ST. He will just have to accept the decision of the Tribunal which has survived this sustained challenge to its legality.

[27] I wish to add one final thing. The problems which have bedeviled this case have arisen because there is no uniform set of criteria to determine who should be the Tui of a particular district. That may, for all we know, be a good thing. It may be sensible to leave each district to determine for itself how it chooses its Tui. But the other view is that it makes predicting who the next Tui is going to be uncertain, and there may well be undesirable inconsistencies between different districts. We leave it to those responsible in Fiji for the governance of iTaukei affairs to consider whether the creation of a uniform model for determining the Tui is desirable.

Dep, J

[28] I have had the advantage of reading Keith J’s draft judgment, and agree with his reasoning and conclusion.

Order:

(1) Application for leave to appeal to the Supreme Court refused.

(2) The Petitioner to pay $2,000.00 for the Tribunal’s costs of the appeal to the Supreme Court.

The Hon. Mr. Justice Anthony Gates

JUDGE THE SUPREME COURT

The Hon. Mr. Justice Brian Keith

JUDGE OF THE SUPREME COURT

The Hon. Mr. Justice Priyasath Dep

JUDGE OF THE SUPREME COURT