[1980-1994] Van LR 284
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
Land Appeal Case No. L8 of 85
 
BETWEEN:
JOHN SELWYN REGENVANU FAMILY
Appellants
AND:
ERIC ROSS
JACK ABEL
Respondents
Coram: Coakley ACJ
 
JUDGMENT
[LAND CASE - CUSTOM - role of custom advisers - appointment of trustees where no clear customary ownership claim]
This is an appeal from a decision of the Malekula Island Court concerning land known as Metaven (I am using the spelling shown on the official survey map because there appears to be a variety of ways by which the name of the place has been spelt). The appeal lies by virtue of Section 22 of the Island Courts Act No. 10 of 1983 (hereinafter referred to as the Act) which so far as is relevant to this appeal is in these terms:-
	"(1) Any person aggrieved by an order or decision of an island court may within thirty 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."
The two assessors who sat with me as custom advisers were Chief Bembi Mogeror of Espiegle Bay and Chief Joel Tawie of Leviamp Village, both on the West Malekula coast; they travelled to Lakatoro for each day of the hearing so that there would not be any contact with any of the parties. Objection had been taken by both Appellants to the original advisers who had been selected when the appeal first came on for hearing on 2 September 1986 with the Chief Justice presiding. They were then replaced by Chiefs Mogeror and Tawie on the following day, when the Chief Justice disqualified himself because of an allegation of bias made by one of the parties.
The other legal provision to which it is necessary to refer is set out in Order 17 rule 8 of the Island Courts (Civil procedure) Rules, 1984, which states:
	"In every case where the claim is in respect of land, the court shall visit the land before reaching a decision in the cause."
I shall revert to this requirement later in the judgment, and having dealt with certain introductory matters I shall now proceed for the sake of clarity to give reasons for my decision under different headings.
The Justices gave the following reasons for finding in favour of the Respondents:
	i) the family history of each Respondent was clear and correct;
	ii) each had a custom interest in the Metaven land;
	iii) each had shown he had a true memory of custom as well as a Nasara at Metaven.
It is contended in the joint submission of the Respondents that after Independence Native Reserves ceased to exist by virtue of Articles 71-73 of the Constitution. Whatever effect Chapter 12 of the Constitution, which sets out the system of land tenure subsequent to Independence, had in relation to these reserves, it is unnecessary for me to consider having regard to the particular facts of the appeal. All I need say is that no land dispute arises between the peoples of Uri and Uripiv who have settled on such lands set aside for them. The issue is simply who is the rightful owner in custom of Metaven No. 2, and for the purposes of this appeal the Court will confine itself to that area only.
The hearing of the appeal had commenced on 18 November 1986 and over three days the court heard the evidence of the two Appellants and of the Respondent, Eric Ross. The morning of 21 November 1986 was set aside for viewing the land, and it had been expected to complete hearing the evidence of the remaining Respondent in the afternoon. That was not to be so, because viewing the land took an exhaustive six hours, covering some 16 miles, the reason being that most of the area walked lay outside Metaven No. 2. The hearing was finally concluded on 6 January 1987, and the following day was reserved in order to obtain the opinion of the Custom Advisers in compliance with Article 72 of the Constitution. The Article requires that the rules of custom shall form the basis of ownership and use of land in the Republic, and consequently I framed certain questions for the Custom Advisers to answer, as it is their function to advise on matters of custom, but not to participate in the decision-making. Because Chief Bembi Mogeror was indisposed on this day, the Custom Advisers gave entirely independent opinions, in fact the Court associate had to make the long journey to the Chief's home at Espiegle Bay in order to obtain his answers.
The written questions, which were lengthy, were as follows:
Question No. 1
The Memorandum from the Ministry of Lands & Mineral Resources dated October 11, 1984 can be regarded as an official document. On page 13 it sets out the following particulars:
	"METENESAL
	Title J 693 D 3,550 hectares 
	- On July 5, 1982 Frank Uran and Family
	 Frank Artha and Family
	 Kamy Ruben and Family
	 Watsen Abel and Family
	Willy Metenmal, Embul Josiah, Edwin Sikoma and Willie Boe,
	were declared as custom owners. There were no objections and a lease was signed by: Robea Uran, Kensi Ata, Shem Ruben, Joel Lingi, Willie Boe and Robert Watson on behalf of the custom owners."
In evidence Jack Abel stated that Watson Abel was his brother, who also lives at Litzlitz, and that the reason why Watson Abel signed the lease was that all his ancestors on West Malekula were dead. The fact is that the lease was signed on his behalf and another important fact is that Watson Abel and family have been declared one of the custom owners of a very substantial area of land. As they are brothers, they must have common ancestors who must have originated from West Malekula; this conflicts with his evidence that his ancestors originated from Tovotlem where they had a nasara. He also gave an equivocal answer to whether the members of the same family can own land on both the west and east parts of Malekula, saying in effect it depended how far distant the lands were from each other.
The question to be answered is:
Was Jack Abel's claim to be the custom owner of Metaven No. 2 a valid claim in view of his brother's customary ownership of land at Metenesal with other persons? He admits that his brother is a custom owner.
Chief Joel's answer (as translated into English by the Court Associate) was:
	"Jack Abel's claim to question No. 1 is false because he has no right (in custom) to claim land on the west and at the same time have land on the east of the Island. Long before there were too much fightings, and people are cannibals eating each other so Jack could not come from the west of the Island to the east to work on his land as he said."
Chief Bembi's answer was:
	"Jack Abel's claim is not true because that land belongs to the people of Uri and Uripiv."
The second question put to the Custom Advisers was:
	"What significance should be given to the nasaras, to which the Island Court gave great weight, and decided the case in favour of Eric Ross and Jack Abel?"
The Justices made two specific findings:
	(a) ".................. yu kat custom interes long Matavin"
	(b) ".................. yu kat tru custom memori olsem nasara long Matavin"
These two findings seem to overlap because in the absence of stating what the custom interest is, the Justices seem to rely on the importance of nasaras as they specifically rejected the two Appellants' claims because neither could show he had a nasara at Metaven.
The nasaras found to belong to the Respondents were stated to be as follows, and were pointed out when the land was viewed. Those of Eric Ross were given the names of Botwali (Potwali) and Ameldand. He also claimed a small nasara at the top of the hill known as Lolonmasin though Jessel Regenvanu said that it was used as a fire making place. The elderly witness, Apet Abraham, who was called by the Regenvanu family, did answer in reply to a question by Eric Ross, "You do have a nasara at Botwali inside Metaven area." He was undoubtedly referring to an area which now forms part of one of the reserves, as the evidence showed that there was no nasara in the disputed area being Metaven No.2. The nasara of Jack Abel was given the place name of Tovotleb, and again this was situate outside the disputed area. Because of difficulty in walking, Jack Abel was not present when this nasara was reached. Jess Regenvanu objected to Eric Ross pointing out the place mark. Were the Justices right:
 i) to hold that Eric Ross and Jack Abel had good claims in custom ownership when the nasaras, which they accepted must have been built by their ancestors, fell outside the disputed area?
	ii) to place the importance which they undoubtedly did on the erection of the nasaras?"
Chief Joel's answer was:
	"The Justices have no right to say that Eric Ross' and Jack Abel's claims are valid and they are custom owners, because the nasaras are not within the disputed land that they are talking about at Metaven No. 2. In custom, a person who says he is the owner of a land, he must show that his nasara is inside the land that he is talking about."
Chief Bembi's answer was:
	"In the decision of the Island Court Justices, in my view I can see that they wanted to wipe away Regenvanu's family, but I can see that they are of the same family. So I think that this Court should not follow the decision that was taken by the Island Court Justices."
The third and final question put to the Custom Advisers was as follows:
	"What was the effect of land purchases made by Mr E.A.C. Corlette in relation to the custom claims by each of the parties? (It is necessary to refer to the Schedule of Documents, as well as the letter dated 31 October 1977 written by Mr F.W. Gidley to Mr S. Regenvanu in the consideration of this question.) These purchases were made by Mr Corlette during the years 1904-1907 and are verified by documents, in which the vendors' signatures or marks were witnessed; such documents are numbered 1-17 and the purchasers in the last mentioned document are Edith Isabella Corlette and Mary Dorothy Corlette.
	Document No. 1 was the purchase of land in the district of Botin Port Stanley, from Abraham of Uri Island, who was the grandfather of Messrs S. & J.J. Regenvanu. The purchase of the piece of land was obviously to enable Mr Corlette to secure a foothole on the mainland, because Mr Gidley states that it was here that he kept his ships; the land is now part of Reserve R. 3.
	The Respondents place reliance on Document No. 2, stating in paragraph (7) page 3 of their submission that "there are names which correspond to our family tree eg., Malsolip, as it appears in other documents the names as Malsolip, Maljimgsolip, Meltek. There is hardly any documents of the deeds which contains any person who sold the land and whose names are in either Jessel or John Selwyn's family tree, except Abraham on Document No. 1." It must, however, be pointed out that all the vendors named in Document No. 2 are stated to be "native of the island of Uripiv". The piece of land sold consisting of about 22 acres was situate on the western side of Bushman's Bay and included in the district known as Metavin.
	Document No. 3 was the sale of a piece of land in the districts of Metaven and Botindi fronting Bushman's Bay and Port Stanley. The vendors are stated to be villagers on the island of Uripiv.
	Without detailing further transactions in this judgment, they do nevertheless, bear out to a considerable extent Mr Gidley's assertion that the coastal people decided to sell their land to Mr Corlette and move to Uri and Uripiv Islands. Furthermore, they show that Mr Corlette acquired a far greater area of land than what is now comprised in Metaven No. 2. It is a reasonable inference in the light of these documents that Mr Corlette purchased such land, namely Metaven No. 2, from people who are now settled on Uripiv or Uri Island, though some of them may have returned to the mainland to live in the reserves set aside for them.
	It would be an unenviable task to attempt to trace their descendants after an interval of nearly 80 years. On the other hand, it is unlikely that Mr Corlette would have entered into these transactions without making full enquiries as to ownership. This conclusion must raise doubt as to the genuineness of the claims to custom ownership, whether of the Appellants or the Respondents.
	May I have the opinion of the Custom Advisers whether the claim made by each of the parties raises such a doubt to custom ownership?"
Chief Joel's answer was:
	"In my opinion, and I can say that all the parties as it shows from what they were saying, that they were not true land owners of the land that we are talking about. I see that everyone is a stranger and everyone comes from different places, eg. in custom, if I am a chief, I ran away from my place and go to another place of another chief, ask permission to stay for a while, this was because of fighting. I must put up some small stones when I perform the ceremony of Namaki. When I go back, I could not claim that land where I erected the nasara."
Chief Bembi's answer was:
	"I have some doubt that they are the true land owners because they are many who have sold land there. And also when we ask them are their nasaras small or big, they could not make it clear to us. So I can see that they all have right of the land."
I shall revert to Document No. 1, in view of an assertion made by Mr Sethy Regenvanu in his statement. The extract is as follows:
	"We also want to point out that as recently as 1977 a number of us including Simon, Eric Ross, Fethret, Apet, Kalwat, Joseph, Young, Josen Sethy made a representation to a grand-daughter of Corlette, Cynthia Gidley who is the heir to the property and her husband and Ian Bickel Berkemlier. We then walked the path that represents the land boundary between Uri land and our land. Here Simon pointed out to us all again that the lands at the Northern side of the path belonged to Uri and the land at the Southern side of the path belonged to us. This is the same land known to date as Lolnevnu of which Mataven plantation is a part."
It is, of course, the last sentence where he states without further proof that Metaven No. 2 plantation formed part of land known as Lolnevnu which is the main basis of his family's claim to customary ownership. The document recites that Abraham is the bona fide and sole owner of a piece of ground known as Lolnevnu, and the parcels describe it as a piece of ground situated in the district of Botindi, Port Stanley, Malekula, in area about 750 acres more or less. A rough sketch plan has been drawn on the document, and there is a description of the boundaries, which is not very helpful in identifying the area in question. Botindi (which apparently is also spelt Potindi) is not shown on the survey map, but it is shown on (Exhibit A) as a landing point in Port Stanley Bay. Further identification of Lolnevnu can be gleaned from Mr Gidley's letter (Annexure R.9), as I regard him as an entirely independent impeccable source of information. In paragraph 4 he writes:
	"Mr Corlette, our predecessor, had no disputes with the custom claimants over land and my wife and I had only one serious complaint with some Uripiv people concerning a small portion adjoining Port Stanley near Botindi where Mr Corlette and Mr Adams kept their ships. This land was later included in the area registered Native Reserve R.3, 45 hectares."
Other evidence arises from when the land was viewed on 21 November 1986, and I append the notes I made when this particular area was reached:
	"10.20hrs. A short distance on J.J. Reganvanu points out LATAN (shown on Annexure R.1) though there is nothing but bush to see. A further _ mile on, there is a path along swamp-land with some burnt out trees called Namwingo - marks the boundary between the people of URI and URIPIV. This is outside of Metaven No. 2. Close by, Eric Ross points to a "stone fence"; there is no fence as such but small stones embedded in the ground; he states it marked the anchorage place used by his ancestors. Also shows what he called a Nitonga leaf for placing behind the ear as a decoration (demonstrated by him).
	10.40hrs. About 1 mile further on, Eric Ross points out one large stone and several smaller ones; he says this is Potwali."
Although Exhibit A is a very rough and inaccurate drawing, it does mark the position of Potwali, which will be seen to be adjacent to Potindi landing area.
The final observation I would make concerns the area of land sold by Abraham to Mr Corlette, which is stated to be "about 750 acres more or less". Metaven No.2 comprised a total area of 307 ha 08 a as shown on plan No. 399. The difference between the Imperial and Metric measure is approximately 2.5 acres to one hectare. It will be seen, therefore, that even if Mr Regenvanu's assertion were correct, Metaven No. 2 would slightly exceed in area the land which Abraham sold to Mr Corlette. However, the preponderance of evidence shows that the Regenvanu family claim based on the assertion already outlined is without foundation.
In view of the Custom Advisers' opinions, I am satisfied that the orders made by the Malekula Island Court were wrong in law and invalid in respect of a large area of land whereby the court purported to find each Respondent to be the owner in custom. Where a court is faced with inconclusive evidence, which is the situation in this appeal, it is entitled to have regard to the facts in recent years in reaching its determination. That principle was enunciated by the Privy Council in the case of Adjeibi Kojo II v. Bonsie (1957) I W.L.R. 1223 and was adopted by the learned Chief Justice in Land Appeal No. 1/85, Malas family v. Songoriki family. The test for the resolution of conflicts between traditional evidence is this: "where there is a conflict of traditional evidence, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable."
The Court's conclusion on the evidence, which takes into account all the material placed before it, is that this is not a case where an individual should be held to be the custom owner in perpetuity, or forever, of the disputed land because it was purchased piecemeal by the original alienator over a period of years from a large number of persons. Moreover, not one of the parties has presented a clear cut claim in customary ownership to the disputed area, in fact it would be extremely difficult to do so having regard to the long period of ownership and occupation by Corlette and his descendants.
A parallel situation arose in the appeal relating to Mangaliliu Plantation, situate on the North West coast of Efate and, similar to Metaven No. 2, was former alienated land. On appeal to the Supreme Court, the land comprised in this plantation was held to be the property of the Lelepa people, but as they could not all be declared custom owners for the purposes of dealing with the land, it was vested in the Paramount Chief of Lelepa in the capacity of trustee for the people of that island. The Court considers that this precedent should be followed in this appeal, as it accords with substantial justice and it is in conformity with custom having regard to the opinions of the Custom Advisers. It will also be in line with the continuation of the previous policy of the creation of reserves, which all surround the disputed area and were established for the benefit of the peoples of Uri and Uripiv islands; the Court is satisfied that the people of Litzlitz, who live to the North on the mainland, have no claim to the disputed area.
In the result the orders made by the Malekula Island Court are quashed, and in substitution therefor this Court holds that the land comprised in the disputed area between Metaven No. 2 shall henceforth be the property of the people residing in Uri and Uripiv Islands. The custom owners of such land shall be the head chiefs for the time being of these two islands, who shall hold the land on behalf of their people in the capacity of trustees. In the case of Uri Island this person will be Chief Fethret Boe, but there appears to be no head chief of Uripiv Island. The evidence given on the point was that each village had its own chief, such as John Selwyn, who is the chief of Potun Village. The people of Uripiv should, therefore, elect a head chief to look after their interests in their newly acquired shares of Metaven No. 2; he will automatically become the other custom owner. This is important because the custom owners will be able to grant a lease of the property, if for instance, the people of the two islands consider that it will be more beneficial to them to lease the property instead of using the land themselves.
Another point of some consequence arising out of this finding is in what proportions should Metaven No. 2 be shared between the people of the two islands. A glance at the survey map shows from the number of villages on each island that Uripiv has a far greater population, but I refrain from making any sub-division at the present time because this might cause complications if the two communities decide to lease the land. Clearly Uripiv must receive a far greater share whether it be in land allocation or the proportion of rent. But this question will depend on the good sense and co-operation of the two custom owners who will no doubt be guided by advisory committees. I strongly urge the two communities, now that the vexed problem of ownership of Metaven No. 2 has been resolved, to put aside their differences and work for the future prosperity which should result from this new acquisition. As Muramur said in evidence when the reserve lands were divided between the peoples of Uri and Uripiv, no-one disputed the areas so divided; he added that at that time the people of Uri and Uripiv were friends, not enemies. That is what the two communities should now try to achieve, a return to the good relationship which existed 25 years ago. In the event of non-agreement or disagreement over the division of the land, leave is given to either custom owner to apply to the Supreme Court for further directions.
Finally, I shall deal with costs. There is no victor as such because the respective appellants' claims are dismissed, and the order of the Island Court recognising the Respondents as custom owners are set aside. This much must be said in relation to the continuation of the struggle for recognition by the Appellants. If they had not fought on, not only would there have been a totally unsatisfactory decision by the Island Court, but the people of Uripiv would have lost their lands forever. For that reason alone, fairness demands that the Court fee of 50,000VT paid by each appellant should be borne equally by each Respondent. This means that the Respondent, Eric Ross, will pay the sum of 25,000VT to John Selwyn, and the Respondent, Jack Abel, will pay a like amount to Jessel Regenvanu.
The formal orders of this Court arising out of this appeal are as follows:
	1. The proceedings before the Malekula Island Court are set aside and the orders made by that Court are quashed.
	2. The appeals by John Selwyn and the Regenvanu family are dismissed.
	3. The custom owners of Metaven No. 2 are the head chiefs for the time being of Uri and Uripiv Islands respectively, (the head chief of Uripiv Island is to be elected for this purpose), who will hold such land in trust and for the benefit of the people residing in these two islands.
	4. The question of division of the land between the respective communities of Uri and Uripiv is to be agreed between the custom owners based on the proportionate population of the two islands and failing such agreement either party is at liberty to apply to the Supreme Court for further directions.
	5. Eric Ross is to pay one half of the Court fee, namely 25,000VT to John Selwyn, and, similarly, Jack Abel is to pay 25,000VT to Jessel Regenvanu.
There are two additional matters which I would mention, which although not part of the Court's findings, are relevant. First, when the land was viewed on 21 November 1986, it appeared that a man named Kalorib of Litzlitz Village was grazing cattle on the plantation and had put a lock on the entrance gate. If any person with an interest to the land is prepared to give sworn evidence to this effect, an order of ejectment will issue immediately and the police will carry it out. The second observation I would make is that once a head chief of Uripiv is appointed, the two custom owners should take formal possession of the land so that persons living in the locality of the plantation will be aware of this fact so bringing to an end any trespassing thereon.
Dated at Vila on this 21st day of March, 1987
M.J.R. COAKLEY
(FORMER) ACTING CHIEF JUSTICE