Kalmarie v Titus [2011] VUIC 2; EIC LC 03-1985 (18 June 2011)

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This is a dispute over customary ownership of EPULE and TANGOROPO North Efate, (below)

Article 73. All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants.

Article 74. The rules of custom shall form the basis of ownership and use of land in the Republic of Vanuatu.

Article 75. Only indigenous citizens of the Republic of Vanuatu who have acquired their land in accordance with a recognized system of land tenure shall have perpetual ownership of their land.

Section 8 of the Island Court Act empowers the island to apply customary law of the area in dispute when determining customary ownership. However the decision must not stand against the spirit of justice, reality and good order.

North Efate custom dictates that inheritance over customary ownership of land passes through patrilineal system. However the following are the exceptions:

Head chief allocates a rather large parcel of land to his assistant chief who would subdivide and allocate plots of that land to leaders of family. The allocated lands become the properties of the receivers. However a custom lease (nasautong) is paid annually to the Head chief.

After hearing the evidences in this matter we state that in Custom, land is not a commodity. It cannot be sold or converted. It is, to many Ni-Vanuatus a virtual book which keeps the sacred stories of the origin of their tribes; it feeds and protects them; and displays evidences of their own identity as a clan within the society. It is one's fate. It encompasses one's past, present and future from generations to generations.

Therefore this court, when dealing with this matter, exercises its discretion to decide on a number of important issues such as: genealogy, cultural practices and the boundaries. Indeed the claimants must show on probable grounds:

Article 74 of the Constitution of the Republic of Vanuatu, 1980 provides the essential criteria to decide the customary ownership of land. We quote: The rule of custom shall form the basis of OWNERSHIP and USE of land in the Republic of Vanuatu.

We interpret this article as to mean that a custom owner is the person or persons who first settled and/or occupied the land; or person(s) who occupied and used the land for a very long period of time. The verb "USE" is the main indicator. That ownership is not individual but communal; therefore the land belongs to an original tribe, then family or clan. That tribe was governed by a head chief or paramount chief (as it is referred to nowadays); whose duty is to ensure that every member of the community or at least the head of each household in that community possesses a piece of land for the household's survival.
Land could be also be described as a transitional arena where a group of people might settle to explore and exploit it and move on to other places to make those other places their own. Nomads do no own lands. They transit over the land.
Furthermore there was explorers, who went around exploring the islands.

Those who make the land theirs are those who chose to remain on the land to build up their nasara and villages. Their descendants create their own practices in the use of the same land for years. Those practices are accepted by all members of the tribe and become their "CUSTOM".

Therefore genealogy should be tested and corroborated through generation as far as it could, to show the probability of the existence and continued presence of one's ancestors on the disputed area from a far past up to present time.

In many areas custom ownership begins with a myth in order to relate the human physical presence to the spiritual realm of the land.

However there are times that, ones presence may then be conquered by another tribe in tribal wars; the conquerors, thus become the new owners of the lands.
Yet another form of land ownership was created by the missionaries' ordained Chiefs. Consequently the Custom owner (who is usually the Head chief) loses his powers to the Mission's chosen chiefs; This form of ownership would be referred to, in this case as the Perpetual Land owners no the Custom owner.

In this case it is a difficult to determine customary ownership of EPULE Land because there is not much said on custom, apart from some well known stories. The court expects to hear evidence of the ORIGINAL TRIBES of the claimants, their custom totems or Naflac, but nothing of such was said. Making it difficult to trace their origins.

Having said this and after considering all evidences adduced in this case. We are satisfied that, the parties before the court fall into 3 different categories

Normally in custom Head chiefs controlled and managed the main boundaries. These boundaries are marked by Rivers, Mountains and series of big stones. Within such big boundaries smaller boundaries are put in place by the Head chiefs and allocated to assistant chiefs and head of tribes. The Sketch map of the disputed land provided to this court by Albert Kalmaire includes 5 different pieces of land; within 2 main boundaries.

This leads up to find that 6 of the claimants before this court are 6 assistant chiefs descending from 2 Head chiefs or Paramount chiefs.

Though he claims under his great great grand father, his historical evidence is only limited to his great grand father Seremy, who is the father of ATUMAPATY the father of ALBERT KALMAIRE. His history in this area began with the ordination done by the Missionary in 1936. Whereas Seremy died in 1919.

After the death of Seremy there was not enough evidence to convince the court on how or what custom procedure was applied to have the title transferred to Masere, neither how Thompson Valeawia came to rule the disputed area. It was not clear why Thompson Valeawia and not Albert Kalmaire's father, one ATUMAPATY was made chief over Epule. This claimant alleges that Albert Kalmaire was too young. ATUMAPATY being alive at that time was the next to kin. Furthermore there was evidence that a different chief ordained the new Maripatok at Emua. The evidence of Christian ordination was clear.

Besides, there is much evidence to show that there was no human presence at the heavily disputed part of Epule for a long period of time.
During the land visit, the court saw a grave belonging to Maripatok. The grave is made of concrete block with "MARIPATOK died in 1919" engraved on it. Beside it there was a similar grave with the name "MARKORI died in 1926'. These 2 people were buried in the communal grave yard of the Presbyterian mission. It is clear that his history started with the Missionaries in the area.

The evidence as to the boundaries sites is ambiguous. There were no evidence of spiritual site or "Custom site/taboo ples"; custom villages that were shown to the Court were not properly commented as to the nature and structure of the site and their owners: whether it was owned by the head chief and or assistant chief and which "MARIPATOK" would have been buried in the grave. However there is confirmation that Seremy has ruled TANGOROPO.

Interestingly some evidences show that the Original Claimant's grand father one ATUMAPATY is son of KALOAS. KALOAS is a well known character in other counterclaimants' history. That KALOAS was married to a RAVENGA woman and migrated to that village.
Coincidently the court was told that Albert Kalmaire's father wedded a woman from Ravenga and went to live in her village.

Original claimant was not confident over custom sites in the bush toward the main Epule River. He did not even know about a sacred hole in the plantation that he is claiming.

Finally the evidences show on probable grounds that MARIPATOK is title for a chief to Tanoropo. And he probably had been allocated a piece of land inland and West Side of Sara Stream. In his sketch map he has mark it "TANGOROPO". The grave of Maripatok is not a custom grave. Chief Maripatok who died in 1919 was buried in the Mission grave.

ON THE OTHER HAND THE FOLOWING COUNTERCLAIMANTS are descendants of chiefs MASEMANTI AND MARMASOETAPAU. Both indigenous conquerors and custom owners of the area in dispute

Counterclaimant 1, 2, 3, 4, & 7 are under the high chief governing the East and south side of Epule land; while 7 & 8 governing the West and North side of EPULE land. The identity of the 2 chiefs was no disclosed. Because of the intermarriages between to two tribes and the small number of people living in this area, there was large plot of land to farm, so the two chiefs' first and second generation were not too concerned over boundaries. They have worked and settled anywhere within the boundaries of the 2 chief.

EPULE land however was unattended for a long period of time. It seems that the conquerors feared to settle on land area within the vicinity of that river. A part of it was even sold to foreigners. As in most area in Vanuatu, the mysterious or feared areas of lands are sold to foreigners for development.

The spokesperson for this claimant represented 3 counterclaimants: FAMILY GEORGES TITUS, counterclaimant 1, Chief VALEAWIA counterclaimant 2 and FAMILY KALSAF counterclaimant 3.

It is probable that Counterclaimant 1, 2, 3, 4 and 7 were related and descendants of MANSEMANTI. Probably Sambu(o) has inherited lands inland of EPULE and was ordained VALEAWIA. As we have said, it is difficult to trace the history of the claimants without the knowledge of their tribe.

It is clear that Chief Valeawia is a title of EPAU. He claims that he is related to the Original Claimant through MASERE who wedded TUKURAO TAKOR, widow of SEREMY and was ordained MARIPATOK. He would have received the land East side of EPULE as a "PUMAS" or gift; he would have been made the guardian of the title "MARIPATOK".

The court has not seen MASERE's grave. Nevertheless Thompson Valeawia was the most influential chief. He was very powerful. Once upon a time he was governing Epau and Epule. During his reign he has received Pumas from Tukurao Takor. But there is also evidence that other people such as Manmeir sold the same parcel of land. How could this be if the land was a Pumas to Thompson Valeawia?

The court hears that Sambo(u), Thomas and Manmeir are related to this claimant. Thomas was a brother of Thompson Valeawia and his wife Manmeir; but there was NO clear relationship between Chief Valeawia and Sambo(u).

Yet, evidence suggests that Merang Metak, Georges Titus and Kalsaf are related to Sambo(u). In a family tree presented by Chief Manukat, it was clear that Sambo(u) is the first born son of MASEMANTI. Sambo(u) has fathered Merang Metak, down to Thompson, Thomas and down to the current Chief Valeawia. This has not been discredited.

Whereas Chief Valeawia begins his generation with VALEWIA MATUA. "VALEAWIA MATUA" means the "OLD VALEAWIA". The identity of the person holding the title in around 1700s-1800s was not disclosed. Could it be MANSEIMANTI or SAMBO(U)?

It is not clear whether in custom a pumas can be given to and taken back and/or from anyone and whether the old TUKURAO TAKOR giver of the pumas, particularly walked over the boundary of the pumas land with the beneficiary.

When the Court visited the land the Original claimant corrected the disputed boundary saying he has drawn his sketch map overlapping the EPAU's boundary.

It is probable that the second son of Mansemanti inherited the Wanakopa land from his father. Evidences show that Manukat claims his right on the exception to the rule of custom ownership on a woman; the last surviving bloodline of Manukat. Her name was LEISINGI whose grand father was MANUKAT and great grand father was MASEMANTI.

The Boundaries of the land is limited to the costal area. The area was claim by Thompson Valeawia as a "pumas". There are evidences to say that Chief Manukat is related to Chief of EPAU. Literally Chief Sambu (o) is probably the first born son of Mansemanti while MANUKAT was the second born of the same chief. That leads us to say that EPAU and the East part of Epule are the same land shared in custom between two sons.

This view is shared with counterclaimant 9 Manulova Frank who is 70 and is a descendant of MARKORI. He said VALEAWIA is in fact Var-Lea-Wia; He was requested by Sambo(u) to stay with him to build his Nakamal..." He might then took over the title as it was said in evidence that Sambu(o) has failed in custom and was stripped off of his title as chief when he fled to EMAU.

Not having a male to take over the chiefly title of Manukat, LEISINGI was married to Emau man and was living there, leaving the land under the chieftainship of her custom "Bigfalla papa". That situation left the land unattended for some time and was controlled and managed by anyone who dare do it. It was then easy for Valeawia to allocate it to anyone from Emau who would need land for farming.

During the visitation it was clear that this claimant is not familiar with the visited sites in the inland area. Furthermore Manukat's Nasara was said to be in the developed area at the sea cost.

The claim was formulated to demonstrate that he is claiming this land under the title "AMIERA". It started with Sam AMIERA II who was married to LIA and bore LEISA. LEISA was then married to MANAPANGA SURIKA, and bore LUIVISIA AND LEITOVA. LEITOAVA married twice, and the spokesperson of this claimant before this court today is the first born son of the second marriage. He is now ordained AMIERA 3.

The evidences produced here are relevant to the dispute over chiefly title. There is no relevancy to this case of customary ownership of land.

This claimant has produced a very comprehensive family tree, in which he describes his relationship with the other counterclaimants such as:

Where he claims that they are direct descendants of MARMASOETAPAU and his wife TOUSING.

Manapanga and Manukat would have descended from their maternal side and Kalorosa and Kalfau on their paternal side.

This counterclaimant's claim is very simple. His ancestors have been allocated a land and he had developped that land from around 1962 until today. The sons of John KALOROSA allocated that land to him and Chief VALEAWIA Thompson Counterclaimant 2 has accepted him on the land with condition that he developed the land as much as he could within 7 years. After 7 years he would forfeit any undeveloped land.

It is accepted with some remorse that this claimant is a descendant of LEITAUSIVIRI from KALOROSA's tribe. It was generally accepted that a piece of land that was given to the community of LAUSAKE, Emau was to be allocated to this claimant.

That decision will remain under the discretion of the descendant of KALOROSA. The rest of the land must be negotiated for a custom lease with the declared custom owners; taking into account the development made. They cannot be evicted without first paying them a compensation for the work done and the properties over the land in question as agreed by both parties.

This claimant has put tremendous effort in presenting this case before us. He has shown the court that his ancestors were once upon the time living on this disputed land. They have convinced the court that they have a spiritual and cultural attachment to this land. They gave evidences of their cultural sites and shown them to us during our visits.

Their history starts around 1330s before the eruption of KWAE. The last person leaving this land was SALERUA. He heard of the explosion and wanted to see what was happening. That was 100 years after the eruption. He did not come back. He was drawn ashore on Emae in around 1560s. He was given a land on Emae. He called that land "Epule" after this disputed land. He paid Nasautong to chief Timakata. He never returned to EPULE on Efate, until very recently. Most of the claimants before this court admitted in evidences that Epule land was not occupied until around 1970s. Fred Kalmaire was enter the land in around 1974. He settled at the Condominium Public Works Department's former site..

There were times that they (this counterclaimant) wanted to retuned to the land in question, but they found out that the land was already sold. In around 1946 there was an attempt to return, but this effectuate since the member who was suppose to lead the group back, died.

There were strong evidences to show on probability that this claimants' ancestors originated from this area. In fact this is the only claimant who shows traditional sites and cultural attachment to EPULE with traditional stories and sacred places within the land. The following evidences were not disputed:

Spokesperson for the Original claimant rely heavily on a French book to put to this claimant that that book did not refer to this claimant's title, therefore it would not be possible for this claimant to have been come from this place. The court has read that book. Most information written in that book relate to people of Efate who moved to outer islands in the shepherd. For example:

There was also evidence to show that this claimant has possessed the same sacred place "Kirivatu" and the same kind of "Disaster stone" and have built the same structured Vareas and have the same name "EPULE" placed on some land on EMAE and Port Vila. This activities leads us to believe that this claimant is currently practicing the same cultural and traditional ways of living on EMAE. The concept of "Absentees" has been discussed in the case of Manie v Kilman [1988] VUSC 9; [1980-1994] Van LR 343, where his Lordship said: "the persons who first arrived on the land and built a Nasara there, even thought they moved later, for some reason or other, to somewhere else, they are the true customary owners of the land".

NEVERTHELESS would it be justice, reality and good order to declare these people custom owners of EPULE after long period of absence? The answer is yes. We refer to the Supreme Court decision Manie v Kilman [1988] VUSC 9; [1980-1994] Van LR 343 (5 July 1988), where the Chief Justice said: "long possession cannot prevail over the true custom ownership of the land.

"I agree with Daly J., in the case of Buga v Ganiferi (Solomon Islands) Customary Land Appeal Case 10 of 1982:-

... "The Respondent has relied heavily upon the Appellants' failure to complain for 75 years. The importance of such failure to complain is entirely a European concept, and has little place in the customary land in Solomon Islands. In the colonial period, the European administrators and even judicial officers have attached far too much importance to this concept, but which ill-considered judgments were given and leases of doubtful validity negotiated with persons who were not really land owners. A Malaitan would surely be surprised if he were informed that in Britain a land owner may lose all his rights by staying silent for only 12 years. Such concepts cannot be permitted to enter in Malaitan customary law. If the Appellants' case were in other respects weak, base upon doubtful generations and false burial sites, then failure to raise complaint may feature as a further piece of evidence against him. But where the Appellants' case is otherwise strong, his failure to complain is irrelevant in customary law

However, the Constitution has categorically stated that all the land in the Republic belongs to the indigenous custom owners and their descendants (Article 71) and that the rules of custom shall form the basis of ownership and use of the land in the Republic. Such being the case and as everyone in this case has agreed that the first persons who arrived on the disputed land and built a Nasara there are the custom owners so that long possession cannot prevail over the true custom ownership of the land...

..."It has often been held that possession is nine points of the law. This adage is not to be taken to be true to the full extent so as to mean that the person in possession can only be ousted by one whose title is nine times better than his; but it places in a stronger light the legal truth that every claimant must succeed by the strength of his own title and not by the weakness of his antagonists (Wharton's Law Lexicon).

Daly J. held, I also hold that failure to complain is a European concept and in customary law in Vanuatu is not acceptable.

On the other hand while we are bound by the above decision, we are of the view that the current occupiers might have fought fierce tribal wars over Epule land and have conquered part of it. Indeed there were evidences of such tribal wars during the absence of this claimant.

THEREFORE we declare that major part of EPULE LAND was conquered. We set the new boundaries of EPULE as follows:

BUT AGAIN the custom of EFATE under the VATURISU CUSTOMARY LAND LAWS does not support the concept of Absentees declared by the mentioned case. Indeed the Vaturisu customary land laws provides that customary ownership of land on Efate is determined by physical occupation which can be realistically proven going back at least 6 generations of the descendant of the original occupier utilising the land in question. More than that would be unrealistic.

While we cannot reject this claimant's evidences, we are of the view that his absence from the EPULE land is a too long period of time; we keep the statu quo and declare Chief Maripatok caretaker of the land EPULE and invite Nabaakaumata to apply customary procedures should he wishes to repossess the land.

This counterclaimant fails to appear before the court from day one to the end of the trial.

This counterclaimant is an old man of 70 years, he prepared and appeared unassisted. He is deaf. Did not follow the trial, but seats humbly waiting for his turn to present his case.

He has shown on probable ground that his ancestors were living on this land since well before 1926. One of his ancestors by the name MARKORI died and was buried close to MARIPATOK at the Mission's communal burial ground.

He is direct descendant of HARRAI MASSE-NUA through Benjamin. MARMASOETAPAU, counterclaimant 10 referred to a MARKORI as his messenger. Though he did not say whether it was the same MARKORI, we believe that this claimant is the descendant of that messenger. He would have informed chief MARMASOETAPAU of a possible invasion of dysentery. The chief would then fled to Emau with his family for health reason.

This claimant is a land owner under the title of chief MARPATOK, he original claimant being the chief of Tanoropo land. Nevertheless he must continue living on the land he is now farming and negociate a custom lease with the declared custom owners.

This claimant has done a marvelous work of art and research. However we are reminded to focus on a very small plot of land at Epule.

He claims under MAUTIKETIKE FATEA TAMA-MANUIA RANGI Lord, King and High Priest of Shefa and Tafea Provinces.

He alleges that EPULE or PULE is MAUTIKETIKE FATEA TAMA-MANUIA RANGI's sacrificial site on the ground that:

The flow of information might very well help the parties to have another perspective of their origin, but it cannot certainly help this court to declare this counterclaim custom owner of Epule. In fact this claimant intention was to in-veil the history. This court cannot continue with the bulk of information's that was adduced. Much information is not relevant to this case.

The only relevant evidences that the court records, is that PULE is the sacrificial site of his ancestors and we are reminded that he also comes from Emae.

FAMILY ALBERT KALMARIE	He is the Custom owner of TANOROPO and RORAFRAF lands; and CARETAKER of EPULE LAND.

FAMILY GEORGES TITUS	He is under Chief Metak VALEAWIA, he must Negociate his land with the declared custom owner of Epau.

FAMILY METAK VALEAWIA	Chief Valeawia, is custom owner of EPAU and ERANGO (see boundary attached). He must renegociate the Pumas with the declare custom owner of WANAKOPA.

FAMILY KALSAF	He is under chief Metak VALEAWIA, he must Negociate his land with the declared custom owner of Epau.

CHIEF TARIPOAMATA	He is descendant of KALOROSA's TRIBE, he owns a piece of land within the land allocated to LAUSAKE community. He must negociate the rest of the land with the declared custom owners.

CHIEF JERRY NAMBAKAUMATA	His long term absence from EPULE does not allow him to return to EPULE. He must negociate his return with the caretaker Chief Maripatok with the custom blessing of Vaturisu Counsel of Chiefs.

FAMILY LOUIS SOSOU MAUPE	His application is dismissed

CHIEF MANUKAT & FAMILY	He is custom owner of WANAKOPA LAND. (See boundary attached)

FAMILY MANAPANGA MANUA & BILLY AMIERA	the application to be declared custom owner of EPULE LAND fails.

FAMILY MAKOU-LOVA MARAKI-VANUA	He is PERPETUAL LAND OWNER of a piece of Land within TANOROPO under chief MARIPATOK

MARMASOETAPAU	Application to declare MARMASOETAPAU custom owner of EPULE fails.

MAUTIKETIKE TRIBE	His application to declare MAUTIKETIKE custom owner of EPULE fails.

Justice Jif J. MEAMEADOLA	............................

Justice Jif S. MARKPAKOA	............................

Justice ANN CALO	............................

Island Courts of Vanuatu

Kalmarie v Titus [2011] VUIC 2; EIC LC 03-1985 (18 June 2011)