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Varani v Native Lands Commission [2022] FJSC 16; CBV0014.2018 (29 April 2022)

IN THE SUPREME COURT OF FIJI
[APPELLATE JURISDICTION]


Civil Petition No. CBV 0014 of 2018
[On Appeal from the Fiji Court of Appeal No. ABU 0056 of 2012]


BETWEEN:

SEVANAIA VARANI
Substituted Petitioner


AND:


THE NATIVE LANDS COMMISSION
First Respondent


THE NATIVE LANDS APPEALS TRIBUNAL
Second Respondent


THE ATTORNEY GENERAL OF FIJI
Third Respondent


iTAUKEI LAND TRUST BOARD
Fourth Respondent


Coram : Hon. Mr. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Mr. Buwaneka Aluwihare, Judge of the Supreme Court
Hon. Mr. Justice Brian Keith, Judge of the Supreme Court


Counsel : Mr. I. Fa for the Petitioner

Ms. M. Motofaga for the 1st, 2nd and 3rd Respondents

The 4th Respondent absent and unrepresented.


Dates of Hearing : 6th April 2022


Date of Judgment : 29th April 2022


JUDGMENT


Marsoof, J


[1] When this matter was taken up for hearing before this Court, it was brought to the notice of Court that the original Petitioner, Jemesa Ramasi, who was the Turaga ni Mataqali of the Mataqali Namatua of Yanuya Village in the Tokoriki Island, had passed away, and it was necessary to substitute in his place his successor in office, Sevanaia Varani.
[2] In the absence of any opposition to the proposed substitution, leave was granted for the said substitution to be effected by an amendment of the caption within 3 days, and an amended caption has been duly filed substituting Sevanaia Varani as the Substituted Petitioner.

[3] By his Petition dated 6th May 2019, the Turaga ni Mataqali of the Mataqali Namatua of Yanuya Village in the Tokoriki Island, sought leave to appeal to this Court against the unanimous judgment of the Court of Appeal dated 12th June 2015 which affirmed the decision of the High Court of Fiji at Suva dated 3rd August 2012 by which the Petitioner was refused leave to apply for judicial review.

[4] The said Petition for leave to appeal to this Court was lodged pursuant to the Ruling of this Court dated 25th April 2019[1] granting enlargement of time to do so.

[5] The Petitioner commenced judicial review proceedings before the High Court of Fiji at Suva in terms of Order 53 of the High Court Rules of Fiji in his personal capacity as Turaga ni Mataqali of the Mataqali Namatua and in a representative capacity for and on behalf of the members of the Mataqali Namatua, and the application for leave to appeal to this Court has also been filed in a personal and representative capacity.

[6] The gravamen of the application for leave to appeal filed by the Petitioner[2] is that the Court of Appeal erred in law and in fact in failing to appreciate that the ground of res judicata raised by the Petitioner in his judicial review application seeking to challenge the decision dated 6th October 2005 of the 1st Respondent, Native Lands Commission (NLT), went to the root of its jurisdiction, and the Native Lands Appeals Tribunal (NLAT) erred in fact and in law in affirming the said decision.

[7] Before considering the application for leave to appeal in greater detail, it may be useful to outline, albeit in brief, the circumstances in which the issue of res judicata is raised in this application for leave to appeal.

Factual Matrix

[8] Members of four Mataqalis who owned Tokoriki Island, namely the Mataqalis of Vunaivi, Vunativi, Namatua, and Vucunisai had a meeting at Solevu, Malolo Island, on 7th November 1930 and agreed upon the ownership and boundaries of the native lands falling within their respective Mataqalis.

[9] It is evident from the records maintained by the 1st Respondent Native Lands Commission (NLC) that the said descriptions and boundaries of lands so agreed upon by the members of the said Mataqalis were entered in four folios bearing NLC Record Nos. 683, 684, 685 and 686 respectively.[3] The description and boundaries of Mataqali Namatua as found in folio bearing NLC record number 685 in i-Taukei language, is quoted below:

“Sa vakatekivu na kenai yalayala mai Betonavula (B.Q) (veiyalayala vata kei na Mataqali ko Vunativi) ki Dogodogo (B.Q) e baravi qai muria na baravi e nai yalayala ni ualevu me yaco ki Matuku (B.Q) qai gole (veiyalayala vata kei na Mataqali Vucunisai) qai lako tale yani ki Betonavula ena vanua ka vakatekivu mai kina.”


The English translation of the said description and boundaries tendered by the original Petitioner marked ‘JR3’[4] reads as follows:-


“Its boundary begins from Betonavula (E.M) (bordering with Mataqali Vunativi) to Dogodogo (E.M) on the beach then following the beach/coastline at the high water mark up to Matuku (E.M) then turns (bordering with Mataqali Vucinisai) then goes/extend again to Betonavula at the place it began.”


[10] However, since the boundaries of the respective lands as described in the aforesaid NLC records were not surveyed as contemplated by the Native Lands Act (NLA),[5] certain disputes arose in or about 2003 between the Mataqali Namatua and the Mataqali Vunativi with respect to their common boundary.

[11] With a view of resolving these disputes it would appear that the NLC carried out a survey to confirm the “boundary as shown on the ground” and on 27th February 2003 advised the two Mataqalis “to abide by the boundaries as shown by their elders at the Commission sittings.”[6]

[12] Things came to a head when the Native Lands Trust Board (NLTB) entered into an agreement to lease a land called “Matanibeto” in the Tokoriki Island to Reynella Limited on 13th August 2003 under the Native Lands Trust Act (NLTA) for the purpose of constructing a resort hotel. This land consisted of 14.98 hectares and included a portion of land that was disputed by the Mataqali Namatua and the Mataqali Vunativi.

[13] Mataqali Namatua then instituted originating summons bearing No. HBC 0331 on 29th September 2003 in the High Court of Fiji at Lautoka seeking three orders of declaration to the effect that (a) the NLC decision on ownership of part of the said land known as “Matanibeto” as belonging to Mataqali Vunativi is unlawful and is contrary to the provisions of the Native Lands Act; (b) the rights and interest of the four Mataqalis remain as determined by the NLC in 1930 pursuant to which decision respective leases were issued and registered with the Registrar of Native Lands; and (c) the NLC had no jurisdiction to alter, hear or re-determine the ownership of the land known as “Matanibeto” under the provisions of the Native Lands Act and that the title of Mataqali Namatua is indefeasible. In the said originating summons, the Mataqali Namatua also prayed for an order that the decision of NLC made in 2003 allocating part of land known as “Matanibeto” to the Mataqali Vunativi be set aside and declared null and void, and also for certain injunctive relief against the NLTB and Reynella Limited.

[14] It would appear that the High Court of Fiji at Lautoka made a consent order in the course of the proceedings in action bearing No. HBC 0331 on 29th October 2003 at the instance of the Mataqali Namatua and with the consent of the Mataqali Vunativi and NLTB that no formal lease will be handed over relating to the disputed land until the substantive action has been determined.

[15] On 17th December 2003 the Mataqali Namatua filed application in the same proceedings for an order further restraining the Mataqali Vunativi and its members and any assignee from entering, remaining and having possession of and building a resort or doing any other developments on the disputed land.

[16] After the transfer of the case to the High Court of Fiji at Suva,[7] the High Court pronounced extempore judgment dated 20th April 2004 directing the NLTB to retain in a special account 5 percent of all moneys including premiums, goodwill and rents paid by and received from Reynella Limited with respect to the intended lease of the land called “Matanibeto” pending the determination of the substantive application.[8]

[17] Though the High Court was not inclined to grant the restraining orders applied for by the Mataqali Namatua on 17th December 2003, the Court of Appeal by its judgment dated 4th March 2005, made order that the Mataqali Vanativi and Reynella Limited be restrained from further dealing with the disputed land until the issue is resolved by NLC in terms of section 16 of the Native Lands Act or by an Appeals Tribunal if there is an appeal under section 7 of the Native Lands Act.[9]

[18] The circumstances outlined above prompted action being taken pursuant to section 16 of the Native Lands Act to appoint a Commissioner to inquire into and determine the dispute between the Mataqali Namatua and the Mataqali Vanativi, which culminated in the determination dated 6th October 2005,[10] which in essence as stated by the Commissioner, was as follows:

“I hereby declare that the only map to be accepted is the big map of Tokariki prepared by the State Survey Department which affirms the boundaries of Mataqali Vunaivi, Vunativi, Namatua and Vukunisai of the Yavusa Yanuya.” (emphasis added)


[19] An appeal was lodged against the said decision of the Commissioner dated 6th October 2005 by the Petitioner Mataqali Namatua on 28th November 2006 before the Native Lands Appeals Tribunal (NLAT) pursuant to section 7 of the Native Lands Act, and after hearing submissions of the Mataqali Namatua and Mataqali Vunativi on 28th November 2006, the said appeal was dismissed by the NLAT by its Order of 14th December 2006[11], which affirmed the decision of the said Commissioner dated 6th October 2005.

High Court Judicial Review Proceedings

[20] Proceedings were commenced in the High Court of Fiji at Suva by the Petitioner Mataqali Namatua on 27th November 2009 in terms of Order 53 of the High Court Rules of Fiji by way of originating motion supported by the affidavit of the Petitioner dated 25th November 2009 seeking leave to apply for judicial review of the aforesaid decisions of the Commissioner and the Native Lands Appeals Tribunal (NLAT) dated 6th October 2005 and 14th December 2006, respectively.

[21] Relief claimed by the Petitioner through his origination motion included declarations to the effect that (a) the decisions dated 6th October 2005 and 28th November 2006 made by the Commissioner and the NLAT respectively were contrary to the decision made by the NLC in 1930; (b) the NLC does not have the authority to alter the boundaries of the Mataqali Vunaivi, Vunativi, Namatua and Vucunisai which had been conclusively decided by NLC in 1930; and (c) any lease title issued by NLTB to any third parties over the land in question pursuant to the decision of the Commissioner of 6th October 2005 is null and void.

[22] As set out in paragraph 5 of the petition dated 27th November 2009 filed by the Petitioner in the High Court, the grounds upon which relief were sought were that (1) the decision of 6th October 2005 was erroneous since it was not in accordance and compliance with the decision of NLC delivered in 1930; (2) that the map produced by the State Survey Department as a conclusive map does not comply with the land boundaries for the four Mataqalis and their respective lands on Tokoriki Island; and (3) in accepting the map of the State Survey team as correct and final, the NLC and the NLAT both disregarded the clear wording of the decision of the NLC of 1930 setting out the description of the respective boundaries of the four Mataqalis on Tokiriki Island.

[23] After the respondents to the originating motion for judicial review filed their respective affidavits which were also replied to by the Petitioner, and after hearing the submissions of the parties to the dispute in open Court, the High Court made order dated 3rd August 2012 refusing the application for leave for judicial review. The High Court also ordered that the parties should bear their own costs.

[24] It is important to note that the High Court considered the question of jurisdiction of court to deal with the review application in the face of 7(5) of the Native Lands Act[12] which provides that decisions of “the Appeals Tribunal are to be final and conclusive and cannot be challenged in a court of law”, and took the view that the said provision does not affect the power of court to review any decision of the Native Lands Commission (NLC), and in regard to the decision of the Native Lands Appeals Tribunal (NLAT) it only precludes review of “the decision and not the decision making process.”

[25] Having so prefaced the judgment of the High Court, the Court went on to consider section 6(1) and 6(5) of the Native Lands Act and observed[13] as follows:-

“S. 6(5) states that if there is a dispute as to ownership of any lands marked and defined as aforesaid the Commission shall inquire into it and, after hearing evidence and the parties to the dispute, decide the question of ownership and record its decision.

I have perused the documents and I find that in 1930 the recording of the boundaries was on oath and with consent of all the mataqali's. There was at that time no dispute as to the boundaries. In 2003 the dispute arose on the location of the Matuku bound. When such a dispute arose the 1st respondent was perfectly entitled to exercise its statutory function to hear and determine the dispute. I do not find that the 1st respondent acted in excess to its jurisdiction or acted without jurisdiction. The recording of the boundaries in 1930 was not a recording after a determination of any dispute.

The 1st respondent relied on the map of Tokoriki prepared by the State Survey Department which set out the boundaries of the 4 mataqalis. I do not find that the map was an irrelevant consideration. That was very necessary for settlement of the land dispute.”(emphasis added)


[26] The High Court also looked at the question of delay and observed that the delay of over 2 years and 8 months from the date of the decision of NLAT is excessive under order 53 Rule 4(1) of the High Court Rules but the respondents have not established that the delay will cause substantial hardship, or substantially prejudice the rights of any person. However, the High Court found that “such a delay in bringing an application is detrimental to good administration as the Mataqali which has been vested with the land would be having the use of the same and after such a long period the Court is asked to relook at the issue. Land disputes must be brought to the attention of the Court as soon as possible.”[14] The High Court did not accept as legitimate the assertion of the applicant that he did not have funds to find a lawyer for the past three years to file his application for judicial review.

[27] The High Court held that in the final analysis, there is no arguable case on breach of natural justice, procedural impropriety, lack of jurisdiction or excess of jurisdiction, and therefore, no basis for the grant of leave to issue judicial review.

Court of Appeal Appellate Proceedings.

[28] The Petitioner made a timely appeal to the Court of Appeal, and the matter came up for hearing before a full bench of the Court of Appeal on 7th May 2015. After hearing submissions of all Counsel, the Court of Appeal pronounced judgment on 12th June 2015 dismissing the appeal and affirming the judgment of the High Court.

[29] Although seven grounds of appeal had been advanced on behalf of the Petitioner, the Court of Appeal took the view that the grounds in essence were that (1) the High Court erred in holding that the NLC did not act in excess of jurisdiction; (2) the High Court erred in holding that the matter was not res judicata; and (3) the High Court erred in holding that there was undue delay in making the application for judicial review.[15]

[30] The Court of Appeal first adverted the finality clause contained in section 7(5) of the Native Lands Act and its impact on the jurisdiction of the High Court in judicial review proceedings.[16] Having referred to relevant statutory provisions and case law, Calanchini P. in the course of his judgment stated that “in my judgment, whenever a challenge to a decision of the Tribunal is based on a lack of jurisdiction or a denial of natural justice, the High Court has the necessary jurisdiction to consider an application for judicial review under Order 53 of the High Court Rules notwithstanding section 7(5) of the Act.”[17] Basnayake JA adopted a similar reasoning and noted that the “....appellant does not find fault with the procedure adopted by the respondents. There is no complaint of any denial of natural justice of the decisions challenged. The solitary argument of the appellant is that the respondents cannot deviate from the determination made in 1930.”[18]

[31] The primary contention of the Petitioner before the Court of Appeal was that the NLC and the NLAT in arriving at their respective decisions in 2005 and 2006 erred in law because the 1930 determination of NLC was res judicata in the sense that it was final and binding on all the parties, and by relying on a map prepared by the State Survey Department, the NLC and the NLAT had taken into account irrelevant considerations.[19] As against this, the respondents stressed that the only issue raised by the Petitioner before the High Court as well as before the Court of Appeal was that the boundaries of 1930 are different to the boundaries determined after the inquiry in 2005 by the NLC, and that in a judicial review case the courts’ function is to review not the merits of the decision in respect of which the application for judicial review is made but the decision making process.[20]

[32] The Court of Appeal dealt with the arguments raised by the learned Counsel for the Petitioner and the respondents in paragraphs [5], [6], [27] and [28] of its judgment. His Lordship Calanchini P noted that of “...the accepted grounds upon which an application for judicial review may be made, the issues of jurisdiction and natural justice are more relevant to the decision-making process than to the merits of the decision and therefore can be reviewed by a court.”[21]His Lordship, after considering relevant statutory provisions and case law, concluded that “.....in this case the challenge by the Appellant went to the merits of the Tribunal's decision and for that reason there was no right to apply for judicial review.”[22] His Lordship Basnayake JA., examined sections 6(1) and 6(2) of the Native Lands Act,[23] and observed as follows:-

“The appellant does not find fault with the procedure adopted by the respondents. There is no complaint of any denial of natural justice of the decisions challenged. The solitary argument of the appellant is that the respondents cannot deviate from the determination made in 1930. It is on the same breath that the appellant complains that the decision is made without jurisdiction, res judicata and is illegal which the learned High Court Judge had correctly rejected.”[24](emphasis added)


[33] The Court of Appeal also considered the question of delay in initiating judicial review proceedings in the High Court. Learned Counsel for the Petitioner had submitted that there is no time limit for applications involving judicial review, but the Court of Appeal, having examined relevant provisions of Order 53 of the High Court Rules, particularly Order 53 Rule 4(1), which provides that “where there has been undue delay in making an application for judicial review”[25]the court may refuse leave for making of the application, if it thinks that “granting it would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration.”[26] Basnayake JA concluded that-

“The question is whether the undue delay has been satisfactorily explained by the appellant. The only explanation given was due to lack of funds to find a lawyer which the learned Judge had correctly rejected as not legitimate. I am of the view that the delay has not been satisfactorily explained and the learned Judge was correct in the rejection.”[27](emphasis added)


Application for Leave to Appeal to the Supreme Court


[34] The Petitioner has lodged his application seeking leave to appeal against the judgment of the Court of Appeal dated on 7th May 2015 only on 6th May 2019, but that was after this Court by its Ruling of 25th April 2019[28] granted enlargement of time on the basis that the Petitioner did not have notice of the pronouncement of the judgment by the Court of Appeal due to an administrative lapse on the part of the Registry of that Court. Enlargement of time was conditional on the Petitioner lodging and serving the application for leave to appeal before 10th May 2019, and the said requirement has been duly complied with by the Petitioner.

[35] The grounds of appeal as set out in paragraph 4.1 of the said application for leave to appeal as amended by the petition dated 22nd October 2019 were that the Fiji Court of Appeal erred in law and fact in dismissing the Petitioner’s judicial review application by holding that the Petitioner did not raise any grounds for judicial review when in fact the Petitioner had raised the following grounds in its application before the High Court:-

[36] In paragraph 5 of the amended petition dated 22nd October 2019, the Petitioner has sought to contend that its grounds of appeal raise a far reaching question of law, a matter of great general or public importance and a matter that is otherwise of substantial general interest to the administration of civil justice, namely, whether the doctrine of res judicata applies to a determination of the 1st and 2nd Respondent when performing their statutory function under the Native Lands Act? It has also been submitted that a secondary question that arises out of the impugned decision of the Court of Appeal is, whether the Courts in Fiji accept the ground of res judicata as a ground for judicial review? Learned Counsel for the Petitioner has ventured to suggest at paragraph 5(i) of the said amended petition that it would appear from the decision of the Court of Appeal that “this is no longer the case.”

[37] At the hearing of this appeal before this Court, the learned Counsel for the Petitioner has submitted that the concept of res judicata was applicable to the Petitioner’s land boundaries that were determined in 1930 and that the 1st Respondent NLC could not have altered the said boundaries as it did by its decision of 6th October 2005. He invited the attention of Court to its decision in Satala v Bouwalu,[29] in the course of its judgment in which it recognized that when the Native Lands Commission “conducts a formal inquiry it is relevantly a “judicial” tribunal whose decisions attract the res judicata doctrine.”[30] He emphasized that the decision made by the Commission in 2005 was inconsistent with its “determination” made in 1930 and that the earlier decision was “binding not only on the original parties but also their privies”.[31] Learned Counsel for the Petitioner also submitted that the 1930 determination of the Commission was also binding on the Commission as well, and by deviating from the same, the Commission as well as the Native Lands Appeals Tribunal has infringed the doctrine of res judicata. Learned Counsel for the Petitioner further submitted that the High Court and the Court of Appeal had fallen into error in finding that the Petitioner’s challenge by way of judicial review was to the merits of the decision of the Commission, when in fact it went into the jurisdiction of the Commission which had no power to revise or vary a determination it had conclusively made in 1930.

[38] Learned Counsel for the 1st to 3rd Respondents responded to the submissions advanced on behalf of the Petitioner by seeking to distinguish the decision of this Court in Satala v Bouwalu[32]on the basis that unlike in that case, in the instant case there was no prior dispute that gave occasion to a binding determination by the Commission in 1930. They argued that the the recording of the boundaries in 1930 was on oath and with consent of all the Mataqalis without any dispute or determination by the Commission, and a dispute as to the boundaries arose between the Mataqalis of Namatua and Vunativi only in 2003 which led to the appointment of a Commission as contemplated by section 16 of the Native Lands Act, which made the 2005 determination which along with the decision of the Native Lands Appeals Tribunal of 2006 became the subject matter of the judicial review proceedings commenced by the Petitioner. Making further submissions at the hearing before this Court, the learned Counsel for the 1st to 3rd Respondents strenuously contended that the doctrine of res judicata has no application to the recording of boundaries made in 1930 on oath and consent, and hence the application for leave to appeal should be refused on the basis that it does not satisfy the threshold criteria for the grant of leave to appeal to this Court.

[39] In the light of the aforesaid grounds of appeal, suggested questions of law and submissions of learned Counsel, it may be useful to briefly examine the nature and ambit of the concept of res judicata in the context of the Native Lands Act[33], particularly in regard to the question whether the doctrine of res judicata can be a ground of judicial review.

Res Judicata

[40] The concept of res judicata is well known in both common Law and civil law jurisdictions, though in certain legal systems it is more popularly known as “claim preclusion”. Under Roman law, the principle was embodied in two legal maxims, interest rei publicae ut sit finis litium, meaning “it concerns the State that there be an end to law suits” and nemo debet bis vexari pro una et eadem causa, meaning “no man should be vexed twice over for the same cause”.[34] As Halsbury’s Laws of England explains, “the doctrine of res judicata is not a technical doctrine applicable only to records; it is a fundamental doctrine of all courts that there must be an end of litigation.”[35]

[41] Spencer Bower and Handley have defined res judicata as a “decision pronounced by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, so that, except on appeal, they cannot be re-litigated between persons bound by the judgment.”[36] A plea of res judicata can consist of a cause of action estoppel or an issue estoppel.[37] A cause of action estoppel is concisely defined by Spencer Bower and Handley in this way: “If the earlier action fails on the merits a cause of action estoppel will bar another.”[38] By way of contrast, an issue estoppel applies to “a state of fact or law which is necessarily decided by the prior judgment, decree or order.”[39]

[42] The recent decision of the English Supreme Court in R (Coke-Wallis) v. Institute of Chartered Accountants in England and Wales[40] which involved two successive sets of disciplinary proceedings, provides an example of a cause of action estoppel. Lord Clarke of Stone-cum-Ebony J. (with whom Lord Phillips of Worth Matravers P, Lord Rodger of Earlsferry and Lord Collins of Mapesbury JJ agreed) outlined the requisites of res judicata in its application to the proceedings before administrative tribunals in the following manner:[41]

“In para 1.02 Spencer Bower & Handley, Res Judicata , (4th ed.) makes it clear that there are a number of constituent elements in a case based on cause of action estoppel. They are: ‘(i) the decision, whether domestic or foreign, was judicial in the relevant sense; (ii) it was in fact pronounced; (iii) the tribunal had jurisdiction over the parties and the subject matter; (iv) the decision was— (a) final; (b) on the merits; (v) it determined a question raised in the later litigation; and (vi) the parties are the same or their privies, or the earlier decision was in rem.’ It is not in dispute that all those elements are established except (iv) and (v). Even if any of the others were in dispute, I would hold that they are plainly satisfied. As to (vi), it was not suggested that the first decision was in rem but it is plain that the parties to both sets of proceedings were the same.” (emphasis added)


[43] It is trite law that a party to a dispute relying on res judicata in the form of cause of action estoppel must clearly set it up in its pleadings and establish all the constituent elements adverted to by Lord Clarke of Stone-cum-Ebony JSC in the above quoted passage from his judgment in in R (Coke-Wallis) v. Institute of Chartered Accountants in England and Wales.[42]

Analysis of the facts and the law material to the application for leave


[44] Having examined the doctrine of res judicata in its application to proceedings before administrative tribunals, it is necessary to analyze the facts and circumstances that have given rise to the present application for leave to appeal in the light of the applicable law. It appears from the pleadings of the Petitioner filed in the High Court, the Court of Appeal and in this Court, that the Petitioner seeks to rely on res judicata in the form of a cause of action estoppel.

[45] The Petitioner had sought judicial review of decisions made by the Native Lands Commission (NLC) and the Native Lands Appeals Tribunal (NLAT) on 6th October 2005 and 14th December 2006 respectively. It is the decision of the High Court to refuse leave for judicial review and the affirmation of that decision by the Court of Appeal that is the subject matter of this application for leave to appeal.

[46] As was observed by this Court in Satala v Bouwalu –

“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.”[43]


[47] It is noteworthy that in the instant case, although one of the main grounds on which the Petitioner sought leave to apply for judicial review was that the decision of the Native Land Commission dated 6th October 2005 was erroneous since it was not in accordance and compliance with the purported decision of NLC “delivered in 1930”, the Petitioner had inter-alia sought a declaration from the High Court that the NLC did not have the authority to alter the boundaries of the Mataqali Vunaivi, Vunaitivi, Namatua and Vucunisai which had been conclusively decided by NLC in 1930, which in essence may be regarded as a plea of res judicata or cause of action estoppel.

[48] However, the only evidence of the purported 1930 decision of the Native Land Commission (NLC) tendered by the Petitioner to the High Court in the instant judicial review proceedings were copies of the folios bearing NLC Record Nos. 683, 684, 685 and 686 respectively and their English translations tendered by the Petitioner by way of affidavit,[44] which at best were records of boundaries of native lands and the names of the owners thereof made as provided in section 6(4) of the Native Lands Act. For the Petitioner to succeed in this application for leave to appeal, he must establish that in 1930 or thereabouts, there was a dispute that arose with respect to the lands of the four Mataqalis of Tokariki Island which was determined with finality by the Native Lands Commission as provided in the Native Lands Act.

[49] In this context, it is material to note that the Native Lands Act (NLA) provides an elaborate mechanism for dealing with disputes involving native land ownership. Section 3 of the NLA Act provides that native lands shall be held by native Fijians according to native custom as evidenced by usage and tradition. Section 3 also provides that in the event of any dispute arising for legal decision in which the question of the tenure of land amongst native Fijians is relevant, all courts of law shall decide such disputes according to such regulations or native custom and usage which shall be ascertained as a matter of fact by the examination of witnesses capable of throwing light thereupon.

[50] Section 4 of the Native Lands Act (NLA) makes provision for the appointment of a Native Lands Commission charged with the duty of ascertaining what lands in each province of Fiji are the rightful and hereditary property of native owners, whether of mataqali or in whatever manner or way or by whatever divisions or sub-division of the people the same may be held. Section 5(1) provides that the roko of each province in which an inquiry is conducted shall be ex officio a member of the Commission when the Commission is sitting for such inquiry, and provision is also made in section 5(2) for the conduct of a special meeting of the provincial council prior to the holding of any inquiry, and for the election by the said council of one or more persons to sit as assessors at the sittings of the Commission for the purpose of the conduct of an inquiry.

[51] The Native Lands Act (NLA) provides for various types of inquiries. By section 6 of NLC, the Commission (NLC) is empowered to institute inquiries into the title to all lands claimed by Mataqali or other divisions or sub-divisions of the people and to have their boundaries described in writing and marked out and defined,[45]irrespective of whether there exists a dispute or not.[46] NLC is also authorized to lay down procedures for the conduct of such inquiries.[47]

[52] Section 6 of the Native Lands Act (NLA) also confers power on the Commission (NLC) to inquire into any dispute as to the ownership of any lands marked out and defined under the Act, and after hearing evidence and the parties to the dispute, decide the question of ownership and record its decisions, unless the parties enter into a compromise in writing, which too the Commission shall record.[48] Section 16 of the Act also empowers the Minister to delegate a member of the NLC or some other proper person to inquire into any dispute that may arise in connection with land in a province or tikina in which the proprietorship of the owners has been ascertained by the Commission or in a province or tikina which it may be inconvenient for the Commission to visit or in any other case when he may deem it expedient,[49] and after informing the parties interested of his decision to transmit a copy of his decision to the scribe of the province to enable it to be read at the next meeting of the provincial council.[50]

[53] By section 17 of NLA, the Commission is also empowered to hold inquiries relating to any disputes arising among native Fijians as to the headships of any Mataqali or other division or sub-division, and after hearing evidence to decide on the headship.[51] At the conclusion of any such inquiry, the Chairman of the Commission shall inform the parties of the decision and shall transmit a copy of such decision to the scribe of the province in which the land belonging to such division or subdivision is situate and such decision shall be publicly read at the next meeting of the provincial council.[52]

[54] It is also noteworthy that the Native Lands Act (NLA) contains provisions for the conduct of land surveys[53], the allotment of lands to dependents,[54] and for re-allocation of lands when lands become vacant.[55] The Act also provides for the establishment of an Appellate Tribunal to hear appeals from the decisions of the Commission, and lays down the time limits and procedures applicable to appellate proceedings.[56]

[55] Since it is the contention of learned Counsel for the Petitioner that the several grounds outlined in paragraph 35 of this judgment based on which the Petitioner has sought leave to appeal against the impugned judgment of the Court of Appeal raise one primary question of law, namely, whether the doctrine of res judicata applies to a determination of the 1st and 2nd Respondent when performing their statutory function under the Native Lands Act, as well as a secondary question as to whether the Courts in Fiji accept the ground of res judicata as a ground for judicial review, it is incumbent for this Court to examine whether the essential requisites of res judicata in the sense of cause of action estoppel have been satisfied by the Petitioner in this case.

[56] Res judicata is a fundamental doctrine that applies even in judicial review proceedings to binding determinations of not only courts of law but also administrative bodies such as the 1st Respondent Native Lands Commission and the 2nd Respondent Native Lands Appeals Tribunal. The question has been already considered in the course of the decision of this Court in Satala v Bouwalu[57] when in the context of determinations of the Native Lands Commission, this Court referred to an earlier edition of the authoritative text on Res Judicata by Spencer Bower and observed that, “....when the Commission conducts a formal inquiry it is relevantly a “judicial” tribunal whose decisions attract the res judicata doctrine.”[58] This Court also referred to the decision of the High Court of Australia in Administration of Papua and New Guinea v Daera Guba,[59] in which Gibbs J[60] made the following pertinent observation:-

“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.”(emphasis added)


I therefore have no difficulty in holding on the authority of Satala v Bouwalu and Administration of Papua and New Guinea v Daera Guba that the doctrine of res judicata applies to a determination of the Native Lands Commission made under the Native Lands Act, and to a determination of the Native Lands Appeals Tribunal made in the exercise of its appellate jurisdiction, but that would not conclude the matter since the onus is on the Petitioner to show that the evidence presented by him in the High Court established a res judicata or cause of action estoppel in his favour. The simple question for the consideration of this Court is whether the facts and circumstances of this case satisfy the several requisite elements of a plea of res judicata?


[57] In R (Coke-Wallis) v. Institute of Chartered Accountants in England and Wales,[61] the Supreme Court of England noted that the following elements must be satisfied for a plead of res judicata to succeed in the context of two successive decisions of an administrative tribunal: -
[58] In the circumstances of the instant case, there is no difficulty in regard to element (vi) and the Respondents do not dispute that the parties to what happened in 1930 and 2005 were the same or their privies, but there was insufficient evidence placed before the High Court for it to be satisfied in regard to the other elements of res judicata listed above. One cannot therefore fault the High Court for refusing leave to the Petitioner to apply for judicial review and the Court of Appeal for affirming the decision of the High Court.

[59] Let me elaborate. The Petitioner has failed to place any evidence before the High Court to show that there was a determination made in 1930 which was judicial in the relevant sense. Within the framework of “inquiries” established by the Native Lands Act (NLA) there can be inquiries of a purely administrative nature such as those contemplated by section 6(1), 6(3) and 6(4) of NLA where there is no dispute, no formal inquiry, no recording of evidence and no binding decision taken by the Commission, as well as inquiries that are judicial in the relevant sense where there is a formal inquiry relating to some dispute which is resolved by the Commission by a binding decision after hearing evidence as envisaged by sections 6(5), 16 and 17 of NLA.

[60] The only evidence tendered by the Petitioner with his affidavits filed in the High Court pertaining to the 1930 proceedings before the Commission were four folios bearing NLC Record Nos. 683, 684, 685 and 686 produced marked “A” with their English translations marked “JR1”, “JR2”, “JR3” and “JR4”, which undoubtedly are records of boundaries of native lands claimed by the four Mataqalis of Tokoriki Island. While the High Court and the Court Appeal took the view that these are boundaries of the said Mataqalis recorded on oath and with consent, there was no evidence to suggest that there was at the time of making of the said records any dispute that had to be inquired into by the Commission resulting in a binding decision or determination. There is also no evidence that in 1930 the Commission pronounced any decision after exercising jurisdiction over the parties on the merits and in a final and binding manner pertaining to a question or questions raised in the 2005 inquiry before the Commission.

[61] It was contended by the learned Counsel for the Petitioner that a plea of res judicata goes to the root of the jurisdiction of the court of tribunal before which it is raised, and that the absence of jurisdiction is a ground for juridical review. While that may be so, res judicata would be of no avail in a case such as this where the Petitioner has failed to establish his plea with material evidence. Although learned Counsel relied on the decision of this Court in Satala v Bouwalu,[62]in my opinion, that decision is clearly distinguishable. In that case this Court held that the Commission had rightly declined jurisdiction since the dispute that arose on the death of Ratu Malelili in August 1999 was not a new one and had been conclusively resolved by a determination of the Commission in 1991 after inquiring into the matter as provided in section 17(1) of the Native Lands Act. But in the instant case, the Petitioner has failed to establish his plea with sufficient evidence.

[62] In the circumstances, I am of the opinion that there is no basis to grant the Petitioner leave to appeal to this Court, as he has clearly failed to satisfy any of the threshold criteria for the grant of leave to appeal set out in section 7(3) of the Supreme Court Act of 1998. The primary and secondary questions of law sought to be raised by the Petitioner and outlined in paragraph 36 of this judgment do not in reality arise in this case because the High Court refused the Petitioner relief due to paucity of evidence to establish res judicata and not due to any error of fact or law.

Conclusions

[63] For the foregoing reasons, I would refuse leave to appeal and dismiss the application for leave to appeal. In all the circumstances of this case I am not inclined to make any order for costs.

Aluwihare, J


[64] I have had the opportunity of perusing in draft the judgment of Marsoof J. I agree with his reasoning and conclusions and the orders proposed by him.

Keith, J


[65] I agree entirely with Marsoof J’s exceptionally comprehensive judgment. For the reasons he gives, I would also refuse the petitioner leave to appeal to the Supreme Court. I merely add that a similar issue to the one raised in this case has come before the Supreme Court in another case in this session. That case is Tawadokai v The iTaukei Lands Appeals Tribunal and others (CBV 0008 of 2019). In that case, the issue was whether the doctrine of issue estoppel (which as Marsoof J has demonstrated is a species of res judicata) applied to the administrative process by which the iTaukei Lands and Fisheries Commission (as the Native Lands Commission is now called) recorded the names of the persons who it believed held various chiefly titles in Fiji. The Supreme Court held that the process did not give rise to an issue estoppel preventing the Commission from subsequently declaring that another person should hold the title. The process of reasoning in that case is identical to Marsoof J’s in the present case.

Orders of Court

(1) Leave to appeal is refused;
(2) Application for leave to appeal is dismissed;
(3) No order for costs.

Hon. Mr. Justice Saleem Marsoof
Judge of the Supreme Court


Hon. Mr. Justice Buwaneka Aluwihare
Judge of the Supreme Court


Hon. Mr. Justice Brian Keith
Judge of the Supreme Court


Solicitors:
FA & Company for Petitioner
Attorney-General’s Chambers for the 1st, 2nd and 3rd Respondents
4th Respondent absent and unrepresented.

[1] See the Ruling of this Court dated 25th April 2009 Ramasi v Native Lands Commission [2019] FJSC 14; CBV0014.2018 (25 April 2019)
[2] Though the initial proceedings for judicial review and appellate proceedings in the Court of Appeal were commenced by Jemesa Ramasi, in his capacity as the Turaga ni Mataqali of the Mataqali Namatua, the affidavit in support of the Petition for leave to appeal to this Court dated 3rd May 2019, was sworn by his successor in title, Sevanaia Varani.
[3] See, Annexure “A” of the affidavit of the Petitioner Jemesa Ramasi dated 25th November 2009 filed in the High Court of Fiji at Suva in support of the Petitioner’s application for judicial review. English translations of the said folios have been provided with the Petitioner’s further affidavit of 30th March 2010 marked as JR1, JR2, JR3 and JR4.
[4] As explained in previous note, 3.
[5] See section 9 of the Native Lands Act of 1905 (Cap. 133)
[6] Proceedings of 27th February 2003 marked as Annexure “B” to the affidavit of the Petitioner Jemesa Ramasi dated 25th November 2009.
[7] When High Court of Fiji at Lautoka action bearing No HBC 0331 of 2003 was transferred to the High Court at Suva in view of the heavy case load in Lautoka, proceedings continued before the Suva High Court under new action No. HBC 0487 of 2003.
[8] See Extempore judgment dated 20th April 2004 a copy of which is filed as Annexure “C” with the Petitioner’s affidavit dated 20th November 2009.
[9] See, Annexure “D” to the Petitioner Jemesa Ramasi’s affidavit dated 25th November 2009, and also paragraph [44] of the judgment of the Court of Appeal in Namatua v Native Lands and Fisheries Commission [2005] FJCA 85; ABU0020.2004S (4 March 2005). It is noteworthy that the Court of Appeal by paragraph [45] of its said judgment also called upon all parties that they should cooperate in enabling the NLC to resolve the dispute as quickly as it can.
[10] See, Annexures “E” and “F” to the Petitioner’s aforesaid affidavit.
[11] See, Annexure “G” to the Petitioner’s aforesaid affidavit.
[12] Section 7(5) of the Native Lands Act was introduced by section 2(b) of the Native Lands (Amendment) (Appeals Tribunal) Act, 1998.
[13] See paragraphs 23, 24 and 25 of the High Court Judgment in Ramasi v Native Lands Commission [2012] FJHC 1254; HBJ15.2009 (3 August 2012) per Anjala Wati J.

[14] ibid., paragraph 27 of the High Court judgment, per Anjala Wati J.
[15] See, paragraph [23] of the judgment of the Court of Appeal in Ramasi v Native Lands Commission [2015] FJCA 83; ABU0056.2012 (12 June 2015).
[16] ibid., paragraphs [2] to [11] of the judgment of Calanchini P. See also paragraphs [20] to [28] of the judgment of Basnayake JA with which Kumar JA agreed.
[17] ibid., paragraph [11] of the judgment of Calanchini P.
[18] ibid., paragraph [28] of the judgment of Basnayake JA.
[19] ibid., paragraph [24] of the judgment of Basnayake JA.
[20] ibid., paragraph [25] of the judgment of Basnayake JA.
[21] Ibid., paragraph [5] of the judgment of Calanchini P.
[22] ibid., paragraph [11] of the judgment of Calanchini P.
[23] ibid., paragraph [27] of the judgment of Basnayake JA.
[24] ibid., paragraph [28] of the judgment of Basnayake JA.
[25] ibid., paragraphs [30] and [31] of the judgment of Basnayake JA. His Lordship noted that Rule 4(2) laid down a stricter time limit of 3 months for seeking leave in cases of certiorari, but this was not such as case.
[26] The Court of Appeal in this context referred to the judgment of this Court in PSC v Singh [1910] FJSC 3; CBV 0011.2008 (27 August 2010).
[27] Judgment of the Court of Appeal, supra note 14, paragraph [32].
[28] See, the Ruling of this Court in Ramasi v Native Lands Commission [2019] FJSC 14; CBV0014.2018 (25 April 2019).
[29] Satala v Bouwalu [2008] FJSC 20; CBV0005.2006S (13 October 2008)
[30] ibid., paragraph [38].
[31] ibid., paragraph [41].
[32] Supra note 28.
[33] Native Lands Act, supra note 4.
[34] See, Lockyer v. Ferryman (1877), 2 App. Cas. 519 at p. 530, per Lord Blackburn.
[35] Halsbury’s Laws of England (3rd Edition), Vol 15 para. 357 at page 185.
[36] Spencer Bower and Handley, Res Judicata (4th Edition) (Butterworths Common Law Series, LexisNexis, 2009) paragraph 1.01.
[37] ibid., paragraph 1.05.
[38] Ibid., paragraph 1.06.
[39] See, Dixon J in Blair v. Curran [1939] HCA 23; [1939] 62 CLR 464 at 532. See also Spencer Bower and Handley, Res Judicata, supra note 35 paragraph 8.01.
[40] R (Coke-Wallis) v. Institute of Chartered Accountants in England and Wales [2011] 2 AC 146.
[41] ibid., paragraph 34.
[42] Supra, note 38.
[43] Supra note 28 paragraph [16].
[44] Copies of the said folios bearing NLC Record Nos. 683, 684, 685 and 686 were initially tendered as Annexure “A” to the affidavit of the Petitioner Jemesa Ramasi dated 25th November 2009 filed in the High Court of Fiji at Suva in support of the Petitioner’s application for judicial review, and the English translations thereof were later supplied with the original Petitioner’s further affidavit of 30th March 2010 marked as JR1, JR2,JR3 and JR4.
[45] Section 6(1) and 6(2) of the Native Lands Act, supra note 4.
[46] ibid., section 6(4) and 6(5).
[47] ibid., sections 6(3), 6(8) and 16(3).
[48] ibid., section 6(5).
[49] ibid., section 16(1).
[50] ibid., section 16(5).
[51] ibid., section 17(1).
[52] ibid., section 17(2).
[53] ibid., section 9.
[54] ibid., section 18.
[55] ibid., section 19.
[56] ibid., Section 7.
[57] Satala v Bouwalu, supra note 28.
[58] ibid., paragraph [38].
[59] Administration of Papua and New Guinea v Daera Guba, [1973] HCA 59, (1973) 130 CLR 353.
[60] ibid., at page 453 per Gibbs J, with whom Menzies and Sephen JJ concurred.
[61] R (Coke-Wallis) v. Institute of Chartered Accountants in England and Wales [2011] UKSC 1; [2011] 2 AC 146 at paragraph 34.
[62] Satala v Bouwalu, supra note 28.

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