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Supreme Court of Vanuatu |
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IN
THE SUPREME
COURT
OF THE
REPUBLIC OF VANUATU
(Land Appellate
Jurisdiction)
Land Case No. 1 of 1994
In the matter of: A Land Appeal from the Efate Island Court. A land situated at and around Bauerfield airport called “MAROPE” on the island of Efate
BETWEEN:
FAMILY
SOPE IMERE
of Mele Village,
Efate
First
Appellant/Appellant
AND:
CHIEF
NUNU NAPERIK MALA
of Rangorango, South
Efate,
Second Appellant/First
Respondent
AND:
IFIRA
COMMUNITY
of Ifira Tenuku,
Efate
Third Appellant/Sixth
Respondent
AND:
IFIRA
TENUKU COMMUNITY HOLDING
LIMITED
Fourth Appellant/Fourth
Respondent
AND:
FAMILY
KALSAKAU,
Ifira, Efate,
Vanuatu
Fifth Appellant/Third
Respondent
AND:
NAFLAK
TEUFI tribe
of Ifira Tenuku,
Efate
Sixth Appellant/Second
Respondent
AND:
FAMILY
NIKARA
of Mele Village,
Efate
Respondent/Fifth
Respondent
Coram: Justice P. I.
Treston
Chief Kalkot Mormor -
assessor
Chief Dellwing Manapanga -
assessor
Chief Steven Maserei -
assessor
Mrs. Nari for Family Sope
Imere (Mele village)
Chief Mala in
person
Mr. Kalsakau and Mr. Malcolm
for Ifira Community
Ifira Tenuku
Community Holding Ltd
Family
Kalsakau
Mr. Daniel for Naflak Teufi
Ifira
Mr. Yawah and Mr. Boar for
Family Nikara
Date of Hearing: 17
& 18 November 2003
Date of
Judgment:
JUDGMENT ON APPEAL
DISPUTE
This
case concerns a land dispute over land called Marope located on the island of
Efate in the vicinity of the Bauerfield International
Airport. There were seven
claimants in the Island Court in 1993 and all those parties took part in this
appeal.
ISLAND
COURT DECISION
The Island Court
decision was delivered on 25 February 1994 and the actual Orders were as
follows: -
"After hearing of each case of the Marope Land Dispute, located on a map which is annexed in the judgement, the decision of the court is as follows:
1. The Court is satisfied that there are two different custom owners to Marope land. The map annexed in the judgement shows two different parts of the Marope Land with two different custom owners.
(a) The first part, marked green, covers Title: 118, 131, 2757 (31/002), 3242, 94.
(b) The second part, marked blue covers Title areas which were sold by Chief Nareo (1872 - 1884):
▪ Narrowby Land Title: 57J, 57K, 57L, 57N, 497, 2904, 1964, 1231/3/760, 3762, 3899, 128, and 2910.
▪ Malaroa Land Title: 534, 111, 129.
▪ Ebooka Land Title: 378
▪ Mapuana Nattapu Land Title: 519
▪ One part of Erango Rango Land Title: 3922.
2. The Court is satisfied and declares that Pastor Pierre Nikara of Mele Village is the true custom owner of the Sawareo Land which is in the boundary of the Marope Land - it covers the Titles: 118, 131, 2757 (31/002), 3242, 94. The parts are coloured green on the map.
3. The court is satisfied and declares that the Nikara family and all its descendants, accordingly to custom have perpetual rights to occupy and enjoy the land coloured green on the map covering Titles: 118, 131, 2757 (31/002), 3242, 94. These rights include the right to grow crops, make gardens, build houses, live on the land (occupation of the land) subject to any government restrictions. These rights also include right to receive rents or any profit out of the land. These rights are not limited to these stated above.
4. The Court is satisfied and thus declares Pastor George Kano the true custom owner of the land marked in blue on the map, the land areas covers;
▪ Narrowby Land Title: 57J, 57K, 57L, 57N, 497, 2904, 1964, 1231/3/760, 3762, 3899, 128, 2910.
▪ Malaroa Land Title: 534, 111, 129.
▪ Ebooka Land Title: 378
▪ Mapuana Nattapu Land Title: 519
▪ One part of Erango Rango Land Title: 3922.
The Court decision does not affect Land Title 57I, 57M, which are on the map, both areas are outside the boundary claimed.
5. The Court is satisfied and declares that:
(a) Naflak Teufi Ifira (LC.2) and their descendants;
(b) Chief Nunu Naperik Mala and his family (LC.1) together with their descendants;
(c) Family Sope of Mele village and their descendants;
According to custom laws, have perpetual rights to occupy, use and enjoy the area on the map marked in blue. These areas cover the Land Titles of:
▪ Narrowby Land Title: 57J, 57K, 57L, 57N, 497, 2904, 1964, 1231/3/760, 3762, 3899, 128, 2910.
▪ Malaroa Land Title: 534, 111, 129.
▪ Ebooka Land Title: 378
▪ Mapuana Nattapu Land Title: 519
▪ One part of Erango Rango Land Title: 3922.
This customary right includes the right to grow crops, make gardens, build houses, and live on the land subject to any government restrictions. This right also includes right to receive rents or any other for, of profit.
6. The Court is satisfied and declares that the Kalsakau Family (LC.3) and their descendants have the same perpetual rights to occupy, use or enjoy the Narrowby Land Title: 57J, 57K, 57L, 57N, 497, 2904, 1964, 1231, 3760, 3762, 3899, 128, 2910 with the Naflak Teufi Ifira and their descendants, Chief Nunu Naperik Mala and his descendants and the Sope family of Mele village and their descendants.
This customary right which the Kalsakau family has obtained includes the right to grow crops, make gardens, build houses, and live on the land subject to any government restrictions. This right also includes the right to receive rents or any other form of profit.
7. Perpetual right to occupy, use or enjoy the land and the other entitlement of the land is to be exercised and enforced under the control and direction of the custom landowner.
8. The Court would generally accept application by any party to clarify the rights issued from the judgment of this Court.
9. Right of Appeal ( see the Judgment pg. 4)"
Slight
amendments in the above recording of the decision were made to paragraphs 3, 4,
5 and 6 because the English version was incorrectly
translated from the Bislama
version. The original judgment was written in
Bislama.
GROUNDS
OF APPEAL
Family Sope Imere
contended as follows:
(1) That the Court was wrong to make a declaration and order in favour of George Kano as he was not a party to the proceeding as an individual.
(2) That the Court was wrong in law in treating George Kano as a separate party from Naflak Teufi Ifira.
(3) That the Court misdirected itself in holding George Kano to be the custom owner while Naflak Teufi Ifira, which he represented, was declared as having perpetual rights only.
(4) That the Court misdirected itself in holding that in custom, custom ownership rights over land are distinguished from perpetual rights to land.
(5) That the Court was wrong in declaring the Kalsakau family as having perpetual rights to the land comprised in the Narrowby part of the Marope land as it had held that the Kalsakau family were not custom owners.
(6) That the Court was wrong in law in holding that the only criteria for determining occupation was the existence of custom "Nasara" "Stones" "Nambanga" or "Fruit Trees".
(7) That the Court misdirected itself in holding that different parties namely the Sope Family, Chief Mala and Naflak Teufi Ifira could have historical rights over the same piece of the land.
(8) That there was no evidence to support the finding that the Kalsakau family could have perpetual rights to the Narrowby land.
(9) That the Court failed to define the boundaries of the land concerned.
(10) That the Court failed to give proper weight to the evidence given by the Sope family Imere.
(11) That there was insufficient evidence to support the finding that George Kano's story was more credible.
(12) That the judgment of the Court was against the weight of the evidence.
Chief
Mala contended:-
(1) That the Efate Island Court was wrong in custom and law in holding that:-
(a) George Kano was a separate party from Naflak Teufi Ifira.
(b) In custom there can be perpetual rights over the same land in addition to ownership.
(c) The only criteria for determining occupation is the existence of nasaras, stones, nambanga and fruit trees.
(2) That the Island Court gave judgment against the evidence and the weight of evidence.
The Ifira Community's grounds of appeal were that:-
1. Custom land is held perpetually by a tribal community unless the land is disposed of in accordance with custom or by law.
2. The Court should have delineated the land in terms of tribal ownership.
3. The Court failed to consider other means of disposal of land including leaving the area, the ability of a chief to dispossess a family and abandonment.
4. The findings were inconsistent with the evidence.
5. The Court should have allowed the Sopes of Ifira to give evidence on their own behalf as a party.
6. The use of the name Nareo by various parties was only after independence and is not custom.
7. Rights of use follow the patrilineal system and a Naflak (or Clan) cannot own land.
8. To give land to one party, knowing they are not the true owner, is contrary to custom.
9. The land awarded should have been more properly delineated.
As to Ifira Tenuku Community Holdings Ltd it was accepted at the hearing of this appeal that that Appellant had no real custom standing and could not make a claim
The Family Kalsakau contended that: -
1. The Court had misdirected itself to who could be custom owners of the land and in placing evidentiary value on certain documentation and in failing to identify custom places within the subject lands and as to the evidentiary weight to be placed on two axes produced by George Kano and as to the efforts of Paramount Chief Tarimata Kalsakau to reclaim the ownership of custom land.
2. The Court erred in finding that Nareo, who was alleged to have executed the deed of sale, was a custom chief and that George Kano was a successor in title in chiefly line as custom owner and in failing to find that custom ownership of the subject land passed to Chief Tarimata Kalsakau and in dividing custom ownership of the subject land between two separate custom owners and in identifying Marope land and in finding the true custom land owners as it did.
Naflak Teufi Ifira said that: -
(1) The decision of the Court to divide the Marope land into two parts was wrong in fact and in law, and was against the weight of the evidence.
(2) The decision that Pastor Nikara was the true custom owner of the Sawareu land was wrong in fact and law, and was contrary to the weight of the evidence , and was contrary to custom;
(3) There is no concept in custom law of perpetual rights to occupy and use land and even if there was there should not have been such a grant to the Nikara family as only a true custom owner can have perpetual rights.
(4) Pastor George Kano should have been noted as being the paramount chief of the blue land and as holding the land in trust for the appellant.
(5) To grant perpetual rights to more than one party is to make no decision at all as there were no provisions in law for determining such rights and what was provided in the judgment would lead to perpetual conflicts.
(6) The form of the decision and the decision itself was against the weight of the evidence and should be set aside.
The Family Nikara did not file an appeal.
SUBMISSIONS
Family
Sope Imere of Mele Village
Family
Sope Imere submitted that the Court was wrong in law to make a declaration and
orders in favour of George Kano because he is
an individual and not a party to
the proceedings and claimed custom ownership over the disputed land on behalf of
the Naflak Teufi
of Ifira (see judgment pg. 13 paragraph 4). The Appellants
submitted that George Kano should not have been treated as an individual
claimant but only as part of Naflak Teufi Ifira, and that, even on the evidence,
there were five generations missing from George
Kano's line. It was submitted
that Family Sope Imere should have been declared custom owner particularly as
the Court accepted the
evidence of the deed of 1909.
Second, Family Sope Imere
submitted that the Court misdirected itself in holding that in custom, custom
ownership rights over land
are distinguishable from perpetual rights to land.
A further submission was that the
Kalsakau Family should not have been declared to have perpetual rights to any of
the Marope land
and that there are other criteria in custom for determining
occupation, including traditional hunting grounds, resting places, areas
used
for gardening, and remains of burial grounds. It was contended that the Court
overlooked the documentary evidence of the 1909
deed.
Next the Appellant contended that
Sope Imere, Chief Mala and Naflak Teufi Ifira could not all have perpetual
rights over the same
land.
Next it
was submitted that in failing to define the boundaries of the area in dispute
there cannot be finality to numerous disputes
between various groups. The
judgment has resulted in more confusion and has created more
dispute.
It was submitted that the
Court did not give full weight to the evidence provided by Family Sope
Imere.
Submissions were also made
as to why the other parties, other than Chief Mala, should not be
successful.
Chief
Nunu Naperik Mala
Chief Nunu
Naperik Mala submitted that he, in fact, was the true custom owner of the blue
land, being a direct descendant of the original
owner, Chief Narewo through the
woman Leitakae. He submitted that the Island Court was wrong to award ownership
of the land to Pastor
George Kano who was not a true descendant of Chief Narewo.
Chief Mala submitted that, under
the Constitution he should be awarded the right to own the land according to
custom. (See Articles
73 and 74). The Chief referred to various ancestral
evidence concerning his contention.
Next, chief Mala submitted that
Pastor George Kano is not a member of the Naflak Teufi Ifira claim but a member
of the Erakor yam
clan because his mother came from Erakor. He said that the
Naflak Teufi Ifira, being a "totem" clan institution formed to promote
peace and
cooperation in Efate society, could not own customary land.
The chief submitted that various
evidence produced such as axes and the memorandum of Port Vila chiefs was not
conclusive.
Chief Mala further
submitted that the Efate Island Court had misdirected itself in finding that the
Kalsakau family could have a perpetual
rights in relation to the Marope land
because such a right was inconsistent with custom and, in any event, that
finding was not supported
by the evidence or the weight of the
evidence.
Chief Mala submitted
that Narewo Marik Atelangi Family was the proper custom owner of the Marope
land. Chief Narewo Marik Atelangi
did have children and that he as a descendant
should be the true custom
owner.
Ifira
Community
Mr. Malcolm on behalf of
the Ifira Community submitted that the decision of the Island Court ought to be
overturned as being unsafe
and unreasonable and that the only realistic course
was to send the whole matter to the Island Court for real argument by the real
parties.
In support of this, Mr.
Malcolm submitted that the court indicated at p.39 of the judgment that,
according to custom laws, land rights
should revert to the Sopes of Ifira.
However, the Sope family of Ifira was not a party to the claim, they were
witnesses to the Ifira
community claim. Therefore, with respect to the
application of justice in this case, the learned Magistrate said that customary
rights
to occupy and use the land should go to the Sope family of Mele village.
Mr. Malcolm submitted that that the decision was ambiguous
because the Sope
family of Ifira was found to be entitled to the land rights but as it was not a
party to the claim, but only a witness,
it could not have any award. Mr. Malcolm
further submitted that the decision must be regarded as unsafe because that
whole group
of people, who had been found to have rights, was taken out of
contention because it was not a party but other individual namely
Pastor George
Kano and Pastor Pierre Nikara even though they were not parties, but were
representatives of a party, were found to
be custom
landowners.
In addition, it was
submitted that the claim of the Ifira Community was dismissed without reasons in
a single line, when the Court
said, at page 36 penultimate paragraph, of the
judgment.
"Therefore, the Court is not satisfied that Ifira Community is the true custom owner of Marope land. There are a lot of people in the Ifira community who belong to Ifira Community but that they don't have any customary rights to Marope land."
It was submitted that that
finding was a simplistic and an unreasonable determination, and should not be
allowed to stand.
It was
submitted that the decision flew in the face of law and custom. It was submitted
that there was no evidence before the Court
that anyone other than Chief Mantoi
Kalsakau III was the paramount chief and that much of the documentation produced
by the Ifira
Community was ignored by the Island Court as was the agreement
between the Mele and Ifira tribes as to their agreed boundary delineation.
It
was submitted that the Island Court ignored the boundary issues and that the
decision was for all those reasons unreasonable and
unsafe.
Mr. Malcolm submitted that
the real Claimant Chief Mantoi Kalsakau III, as representative of the Ifira
community should be accepted
as the paramount chief of the Ifira community and
in custom should be the customary landowner of the Marope
land.
Mr. Malcolm submitted that
the Court had erred in finding that four different Families, individuals or
Naflaks had exactly the same
rights in respect of the same land. That was wrong
in law and custom and has led to impossibility of resolving specific boundaries.
Mr. Malcolm also submitted that
the Family Sope Imere's claim should be disregarded as that family had moved out
of Ifira and had
lost its right. Mr. Malcolm also made further submission as to
the rights of the other claiming groups on the basis of descendants
and
submitted that, if land ownership was based on the patrilineal system, every
Naflak or clan would be owners of the same land,
which is inconsistent with
custom.
Family
Kalsakau
Mr. Kalsakau submitted
that the Island Court erred in customary law or customary fact in awarding the
green parcels of land to Pastor
Pierre Nikara of Mele village and in awarding
the blue part to Pastor George
Kano.
Mr. Kalsakau made
submissions to the interrelation between the parties. Mr. Kalsakau made further
submissions as to the working structure
of Ifira customary law in relation to
the intended sale of any land. It was submitted that the learned Magistrate
misdirected himself
in placing evidential value on the sale of the land in 1872
and placed no weight on the submissions made on behalf of the Ifira community
and the Kalsakau family as to the boundaries involved. The learned Magistrate
should have dismissed the claim of the Family Sope
Imere on the basis that their
claim in relation to the land changed in the course of the hearing and he
submitted that the boundaries
should have been settled first and in particular
there should have been weight placed on the settlement between Ifira and Mele
tribes
as to the delineation of their boundary.
He submitted that the Sope Family
were not sure of the boundaries and that George Kano and the Naflak Teufi had
fabricated and recreated
their own history to substantiate their claim. He also
submitted that too much evidential weight was placed on the connection between
the two axes and the sale of Marope land.
He confirmed that family trees
were important but that there had been no cross-examination on family trees at
the original hearing.
Mr. Kalsakau pointed to inconsistencies in the judgment,
for example, the learned Magistrate had said that the Nikara Family had
a strong
claim but was only given a small part of the land, and there were
inconsistencies in the witnesses for the Family Nikara,
and it was wrong to say
that a Naflak had rights in perpetually.
He submitted that the Ifira tribe
was the one with a closer connection to the land and that it was wrong to hold
against Kalsakau
family because it failed to show the boundaries. It was most
important to identify the particular land that the Court was dealing
with.
He further submitted that the
Kalsakau family tree indicated where the true weight of evidence was and that
there were inconsistent
and unreasonable elements of the decision because
confusion was caused and such confusion needed to be clarified.
He submitted that the custom
chief owns the land, not on behalf of the people, but owns it by himself as
chief and apportions parts
of his land to his family, relatives and descendants
for their use. He said that custom ownership is not based on representation
but
is based on status and blood. He acknowledged that the custom on Ifira is that
any person directly related to the chief acquires
a privilege to be granted
rights of perpetual use of the
land.
Mr. Kalsakau gave reasons
why the learned Magistrate had misdirected himself in relation to the chain of
succession and the true custom
of Ifira and as to how the Ifira people had
originally used Marope land and adjacent lands for their gardens. He said that
Chief
Nareo was never a custom chief empowered to sell the
land.
Analyses were made as to
whether George Kano or Naflak Teufi had provided evidence sufficient to be
awarded customary ownership and
it was submitted that they had not and that
George Kano had descended from a woman who could never have been of chiefly
blood.
Mr. Kalsakau submitted that
George Kaltoi Sigari Kalsakau should be ordered to be a true custom owner or the
land or that there should
be a fresh hearing of the claims by the Island
Court.
Naflak
Teufi Ifira
Mr. Daniel on behalf of this
Appellant submitted that the Island Court had jurisdiction to determine
ownership of land only and could
not make Orders for use or occupation of such
land in favour of other groups.
He
further submitted that custom rules as to the ownership of land are the only
rules relevant to determining who the owners are.
He agreed that in accordance
with the authorities the best way to test traditional evidence is by reference
to the facts of recent
years and by seeing which two competing histories is the
more probable. (See Lord Denning in
TWIMAHENE
ADJEIBI KOJO II v
OPANIN
KWADWO BONSIE & AND OTHER [1957] 1
WLR 1223.)
Mr. Daniel submitted
that, in holding that the Nikara Family had rights over certain defined areas,
the Court did not give reasons
for that finding although it did provide clear
reasons for excluding other custom
claimants.
It was submitted by Mr.
Daniel that the Island Court made orders attempting to appease all parties and
ended up clarifying nothing.
An
analysis was made in detail of the evidence and it was submitted that the
finding of facts supported the prime determination of
the rightful custom
ownership but not the qualifications that were additionally made.
It was submitted that there was
no basis for the differentiation in the orders that were made and that the
decision of the Island
Court in finding that parties other than the custom
owners had customary rights to the land was wrong because the paramount chief
is
the custom owner of used and unused tribal land and determines, in each case
which clan member shall use what parts of tribal
land. Long user by a clan
member can give rights to possession. No party had presented any evidence that
any parties other than the
custom owner can have customary rights to land and
the Magistrate was wrong in
law
References was made to Article
75 of the Constitution providing that once customary ownership was acquired it
was perpetual. Custom
ownership once achieved cannot be lost. It was argued that
any group, which can establish first ownership, must be the custom
owner.
It was submitted that the
custom owner of all of the disputed land should be Naflak Teufi
Ifira.
Family
Nikara
Although this respondent
had not filed an appeal, it was submitted by Mr. Boar that this Court had the
power and jurisdiction to consider
Family Nikara's position and the Court could
award custom ownership to Family Nikara of the whole of the land. That was
significant
because, when the parties were asked to clarify their positions at
the commencement of the appeal hearing, Mr. Yawha said that Family
Nikara did
not seek to overturn or challenge the Island Court's ruling as to the green land
and that the party was satisfied with
the decision as it stood. The ground
seemed to change during the
hearing.
It was emphasized that
the Court could have found that Kalsakau family had conceded that Pastor Pierre
Nikara and his ancestors had
a valid claim to the
land.
Mr. Boar submitted that
findings of custom made by the Court were open to it and that the Nikara family
claim was based on the acquisition
of the land through the patrilineal system.
It was argued that the other claimants' cases were based on the matrilineal
system and
should be dismissed and the finding of the Court in relation to
Pastor Pierre Nikara as being held to be the true custom owner of
the green land
should be upheld.
By way of
alternative it was submitted that Pastor Nikara should be ordered to be the true
custom owner of all of the Marope Land,
blue and
green.
LAW
An
appeal from a decision of the Island Court concerning the ownership of land is
governed by section 22 of the Island Courts Act [CAP. 167]. The relevant parts
of that section are as follows: -
"(1) Any person aggrieved by an order or decision of an island court may within 30 days from the date of such order or decision appeal therefrom to-
(a) the Supreme Court, in all matters concerning disputes as to ownership of land;
(b) ...
(2) The court hearing an appeal against a decision of an island court shall appoint two or more assessors knowledgeable in custom to sit with the court.
(3) The court hearing the appeal shall consider the records (if any) relevant to the decision and receive such evidence (if any) and make such inquiries (if any) as it thinks fit.
(4) An appeal made to the Supreme Court under subsection 1 (a) shall be final and no appeal shall lie therefrom to the Court of Appeal.
(5) ..."
Three
assessors were finally appointed after a proper process of elimination had taken
place. There was no objection by any party
to
them.
The parties were asked, in
accordance with the provisions of Section 5 of the Customary Land Tribunal Act
No. 7 of 2001, if they wished
this appeal to be withdrawn from the Court and
dealt with under that Act. One of the parties did not consent to that course and
the
matter therefore remained before this
Court.
Under section 23 of the
Island Court's Act is provided:
"The court in the exercise of appellate jurisdiction in any cause or matter under section 22 of this Act may -
(a) make any such order ... as the island court could have made or passed in such cause or matter;
(b) order that any such cause or matter be reheard before the same court or before any other island court".
It
must be remembered that this is an appeal hearing and not a rehearing. The Court
in a preliminary ruling on 14 October 2003 has
given its view about how this
appeal should proceed.
When
matters of custom are referred to, this is on the basis of the advice of the
assessors who have considered the Island Court decision
and who have listened to
the submissions made. Their knowledge of custom is drawn upon by the Court in
arriving at its decision.
The Court is grateful for their assistance. In this
regard S. 10 of the Act provides:-
"Subject to the provisions of this Act an Island Court shall administer the customary law prevailing within the territorial jurisdiction of the Court so far as the same is not in conflict with any written law and is not contrary to justice, morality and a good order."
The Court has considered
the transcripts, the evidence and exhibits produced, the grounds of appeal and
has heard the helpful submission
made by the Appellants and the parties. At the
conclusion of the appeal hearing, all parties were asked whether they had had
full
opportunity to make such submissions as they wished and to answer
submissions that had been made by other parties. No points of contention
or
complaint were
raised.
FINDINGS
It
seems that the hearing in the Island Court occupied approximately three months
in late 1993. The learned Magistrate heard much
evidence and accepted many
exhibits. As he was required, he visited the land before reaching his decision
(see Order 18 paragraph
9 Island Courts
Act).
The learned Magistrate was
careful to set out the custom basis on which he arrived at his conclusions. At
page 35 he said as follows:
-
"Outline of general consideration applied by the court to define custom land ownership, and to determine the true custom owners of Marope Land.
1. According to Efate custom, particularly the Marope Land area, land ownership passes to the males. Custom Land ownership follows the Patrilineal system.
2. The custom landowner is normally a chief, sometime there are exceptions when the custom owner is not a chief. The custom chief owns land on behalf of his people, who live and work on the land. the custom chief acquires land on behalf of his people who occupy the land.
Custom ownership is bases on representation. The custom chief represents the custom boundary of the land he and his people live and work on. The custom land belongs to the custom chief and his people. Custom land ownership is different from individual ownership. The individual landowner may dispose off / sell land in whatever way he wishes.
On the other hand, a custom chief cannot dispose off or sell custom land at his own free will.
3. Every person under the authority of the custom chief has an interest or custom right, which is a perpetual right of occupying and using land, which is owned by the custom chief.
4. According to the system of customary land tenure, the chief is the custom owner of the whole boundary, and like his people he owns, small portion of land within the whole boundary.
5. This custom chief is a chief of one tribe, and at the same time the chief's tribe may lead a different tribe, hence it would make him the chief of different little tribes.
6. Custom land ownership is transferred from father to son (grandfather, to father, and then to son). Customary land ownership is birth right.
7. If a custom owner dies, then customary land ownership transfers to the brother after him. If the custom owner doesn't have a brother, then this right gets transferred to the first son of his eldest sister, in that way land gets transferred through the "uncle relationship"
8. In the case of polygamy, land ownership rights go to the first born of the senior wife.
9. If a person marries more then once, customary land ownership goes to the first son of the first marriage.
10. Criteria of the first occupant of the disputed land. if a land claimant says that the disputed land was occupied by his forefathers, he should prove to the court such claim. The test of proof would be evidence of custom nasara (meeting place) and rock, a Nambanga (Banyan) or a namele tree (palm tree), Nakamal and taboo places. (A Title or Deed or Sale may be included too)."
In
my view there can be no criticism of the statements of principle set out therein
but of course the question remains as to whether
those matters of principle were
applied in an appropriate way.
In
addition to that, the Island Court set out the correct procedure the boundaries
of the disputed land and the parties' right to
appeal. I find that criticism of
the name of the land or the boundaries concerned is ill-founded. The learned
Magistrate was quite
clear which land he was dealing with and there is nothing
in particular riding the fact that the land was called "Marope Land" in
the
judgment.
The learned Magistrate
set out in full the case for all the claimants with reference to the claim
itself and the evidence of the various
witnesses.
In relation to findings
of the Island Court, the learned Magistrate said that he had heard all the
evidence and observed the behaviour
and demeanour of the witnesses in deciding
whether they had presented correct information and he set out the principle in
Land Appeal
case judgment No. 1 of 1986
Mala
Family v
Songoriki
Family in relation to solving conflicts
of traditional evidence as follows: -
"When there is a conflict in tradition, custom story about land, one side of the story must be right and the other side must be wrong. This does not mean that both parties are not honest in their belief, both may be honest in their belief, however in cases like this, the behaviour or the way in which evidence is given in court may help reach the truth. Therefore, the best way to test custom history or tradition is to refer back to the happenings of the recent years as presented in the evidence, and consider one of the history given in court which that would most probably be close to the truth."
The Island Court was also
at pains to set out its full reasoning and its determinations of credibility and
in my view carried out
a proper process in arriving at who it found to be the
true custom owners. The decisions reached were clearly available on the evidence
and from the following of that process and, of course, it is difficult for a
court on appeal to disturb findings of credibility because,
as the learned
Magistrate said, he had had the opportunity of seeing and hearing the witnesses
and making findings of credibility
over the lengthy hearing. He gave a full,
careful and logical decision in accordance with proper custom principles and
criticism
that he made no award, for example, in favour of Sope Family of Ifira,
as they were not party to a claim but witnesses to the Ifira
community claim is
without basis. The Court was correct at law because as a matter of principle no
relief can be granted to someone
who makes no
claim.
It was argued that the
judgment was inconsistent in that it granted customary rights of the blue land
to Pastor George Kano when he
was "the leader of the Land Claimant No. 2 -
Naflak Teufi of Ifira " (see pg. 13 of the Judgment) and customary rights of the
green
land to Pastor Pierre Nikara who was "the representative of Nikara Family
of Mele village whose claim is based on the name "Nikara
Paunareo" (see pg. 20
of the Judgment). However, in accordance with the principles of custom, findings
that those two were the true
custom owners the Marope land was inevitable,
because the custom landowner is "normally a chief" who "owns land on behalf of
his
people, who live and work on the land" (See pg. 35 item 1) Both George Kano
and Pierre Nikara gave evidence as leaders of their Naflak
or totem or family
and could quite rightly be held to be true custom owners. George Kano claimed to
be the true descendant of Chief
Nareo who had been the owner of the disputed
land. The Court accepted the evidence of the two axes as some relevant proof.
Pierre
Nikara claimed acquisition of the land through the patrilineal system
based on birthright and inheritance. The Court accepted that.
Even the leader of
the Ifira Community accepted that Pierre Nikara had some interest in the land
(See pg. 22). On the other hand
the Sope Family of Ifira was always only a
witness under the umbrella of the Ifira Community claim and there was very
little in that
claim to directly substantiate its rights to any great extent. I
find there to be no
inconsistency.
It was submitted by
Mr. Malcolm that the Sope Family of Ifira had originally filed a claim and paid
a fee but the evidence as to that
was, as counsel conceded, somewhat sketchy and
inconclusive and, in any event, the point was never taken in the Island
Court.
As I have said the Island
Court made specific findings of credibility and, despite the submissions that
have been made as to why these
findings should have been otherwise, I can find
no reasons as to why those findings were against the weight of evidence or
contrary
to the customs of Vanuatu and in fact from my reading of the material
there was no other reasonable conclusion that the learned Magistrate
could have
reached as to the ownership of the custom land in all the
circumstances.
As to the
submission that the decision in relation to the claim by the Ifira Community was
unreasoned, simplistic and unsafe I find
that to be, with the greatest respect,
misconceived and inaccurate.
It
was submitted that the Ifira Community claim was dismissed in a sentence or so
at pg. 36 if the Judgment when the learned Magistrate
said: -
"Therefore, the Court is not satisfied that Ifira Community is the true custom owner of Marope Land. There are a lot of people in the Ifira Community who belong to Ifira Community but don't have any customary rights to Marope Land."
Again, with the greatest
respect, that submission is an oversimplification in itself. The learned
Magistrate carefully analysed the
Ifira Community claim over six and a half
pages of the Judgment from pages 26 to 33 and the ultimate decision was set out
in the
three and a half paragraphs which preceded and included the above
quotation. I find that that could never be held to be an unsafe
and unreasoned
decision and I hold that the conclusion was appropriate and available based, as
it was, on a full analysis by the
Court.
The rejection of the Family
Kalsakau claim as to custom ownership of the land was likewise properly reached
after a full and fair
process. The learned Magistrate found that George Kaltoi
Singari Kalsakau had failed to show any landmarks on the disputed land.
The
other witnesses for that claimant were in the same position. From my examination
of the exhibits, including the family trees,
it seems that the historical
involvement of that family in the land came after the other claimants as to
custom ownership and the
Court was perfectly justified in dismissing its claim
for custom ownership as it did in the first two paragraphs of page
37.
Furthermore, the finding of
the Island Court in relation to the true custom owners was on the basis of
appropriate analysis of the
family trees and bloodlines upon which there was
cross-examination at the hearing (See pg. 6 penultimate paragraph, pg. 11
paragraph
4, and pg. 14 penultimate
paragraph)
Some criticism has been
levelled at the veracity of the claim of Family Sope Imere because they were
unsure of the actual boundary
of the land and their boundary description changed
during the hearing and they could not identify some land marks. It is clear that
in the development of this particular land by European settlers from time to
time, including even the construction of the airport,
ancient land marks for
determination of occupation such as "Nasara", "Stones", "Nambanga" or "Fruit
Trees", which can be evidence
of occupation, were obliterated. In this context
it is not unexpected that members of the Sope Family were not really sure of
some
landmarks and boundaries of the land in question. In any event, this was
taken into account by the learned Magistrate (see pg. 6
of the Judgment) who
nevertheless accepted the
claim.
It was also argued that no
party had presented evidence of any custom rule to support the notion of orders
being made to grant perpetual
custom rights. However, the learned Magistrate was
assisted by three Island Court justices knowledgeable in custom who were there
to advise him as to custom matters and there is no principle of law which would
prevent such assistance and/or advice being relied
upon by the Court, even if
the parties had not made the specific
point.
It is also clear according
to custom that those under the authority of the custom chief can have an
interest or custom right which
can be a perpetual right of occupying and using
land owned by the custom chief. Groups of people such as families and Naflaks
can
be the holders of such interests even though those particular groups are not
custom landowners. That concept was clearly recognised
by the Island Court in
its decision, and that is not, in my view, contrary to custom. The fact that the
Island Court recognised and
gave a legal basis in its decision for such holdings
cannot be contrary to custom or law and the Island Court decision has made those
findings and orders on a proper logical and careful basis. The orders are simply
a legal recognition of properly established custom
rights and
usages.
Criticism had been
levelled at the decision on the basis that the findings that certain families
and Naflaks were given the same rights
over the same land was causing confusion
and dispute. However, the Court quite properly anticipated resolution of such
difficulties
in its judgment when it provided at item 7 on page 41: -
"Perpetual right to occupy, use or enjoy the land and the other entitlement of the land is to be exercised and enforced under the control and direction of the custom land owner."
It is totally in
accordance with custom that it is chief or custom land owner who owns the
boundary of the land and who is entitled
to make determinations over which
particular portion of the land, any particular group is able to exercise its
perpetual right.
In addition, the
Court recognised that, should there be any difficulty with clarifying the rights
issuing from the judgment, application
could be made to the Island Court to
clarify such right. It is my view that that is a course which should be
sparingly invoked because
it is important that custom landowners and those who
have rights under his ownership should endeavour to resolve their own
difficulties
within the bounds of custom without recourse to the Courts. Such is
important for the self-determination of all groups within this
Republic.
Necessarily there must
be goodwill between competing groups and such goodwill ought to be exercised on
the basis of the philosophy
of Chief Roymata who created Naflaks or peace
ceremonies where under groups could attain peace and unity and discuss and
resolve
such disputes. Of course such discussion as a matter of custom can never
undermine the ultimate power of the actual custom landowner.
I can do little more in that
regard than to echo the words of Justice R.K. Kent in the case of
Noel
v
Toto
CC18 of 1994 (Luganville Santo) when he said: -
"As to the management of the land, I think that the parties should quickly make their peace with one another. It may be that that will involve some custom arrangement between them. I think that all parties should act reasonably with respect to this matter, so that any problems as to future management can be avoided. The parties have indicated that they have some proposals for the future and I trust that they can reach agreement. By them all working together in a spirit of co-operation, they will all benefit and derive full satisfaction from their custom land."
Under the Constitution
itself, as the Island Court recognised, Article 73 provides that all land in the
Republic belongs to the indigenous
custom owners and their descendants who,
under Article 75, shall have perpetual ownership of their land and under Article
74 the
rules of custom shall form the basis of ownership and use of land in the
Republic of Vanuatu. The decision in the Island Court is
in accordance with
that.
I do not agree that the
decision was an attempt to appease all parties and clarified nothing. To the
contrary, it was a well-balanced,
carefully researched, logical and balanced
result flowing from the evidence after appropriate findings in relation to
credibility
on the basis of properly admitted
evidence.
CONCLUSION
Every
ground of appeal is dismissed. It follows that the decision of the Island Court
as set out above must stand.
I
will hear the parties on the question of costs.
Dated AT PORT VILA, this 19th day of December 2003
BY THE COURT
P.
I.
TRESTON
Judge
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