[1980-1994] Van LR 343
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
Land Appeal Case No. L5 of 1984
 
BETWEEN:
BUE MANIE
KENNETH KALTABANG
Appellants
AND:
SATO KILMAN
Respondent
Coram: Cooke C.J
Counsel: Mr K Mataskelekele for Appellants
Mr P Coombe for Respondent
 
JUDGMENT
[LAND CASE - CUSTOM - relationship with Common Law - INDEPENDENCE]
In this case, I am asked to decide who is the custom owner of Lakatoro which is the land in dispute and is set out in Exhibit 1. In custom, it is accepted that the custom owner is the descendant of the person who first came here and built a Nasara. It makes no difference whether they left again for one reason or another, the fact that they were the first occupants of the land and built a Nasara there gives them the right to be designated as the custom owners. All parties to this appeal agree to this statement of fact and the custom advisers confirm that such is the case in custom. I reject the case law submitted by Mr Coombe as it is my opinion the finding in such cases does not apply to the custom cases before me. I listen to the evidence and carefully observe the demeanour of witnesses and finally decide whether they are truthful witnesses; also the custom practice as I know it and explained to me by the custom advisers, is strictly followed.
Having settled what the custom is, I now have to sift through all the evidence and documents produced and decide who in my opinion, with the help of the custom advisers, are the custom owners of the disputed land before this Court.
The problem before me is a question of belief. Many witnesses have appeared before me who quite clearly, in my opinion, have stated facts to me which are not the truth. Other have appeared and have given evidence which, to me, was something they were told to say. They would make a statement that Saulei was always here, which of course he was not; that the land belongs to him, which they did not know. Yes, of course, he lived here for a long time, that I can accept but that does not make him the custom owner.
In order to come to the true custom owner, I have to go back as far as I can, find out who possessed the land, how they obtained possession and who from. It is then and only then am I near the truth as to the genuine custom owner.
I accept the evidence that Saulei lived in the neighbourhood of the land in question for many years; that he was accepted as the owner of the land in so far as the lease was executed by him and accepted by the Condominium Government.
I accept that Sato was accepted by the Government as having the right to enter into a lease. That had to be the case as, before Independence the Government of the Condominium did not have to even think of the custom owner. It was only when the Constitution came into being in November 1979 that it was clear to the people of this country that all land reverted to the custom owner. The Kaltabang family have stated they did not make a claim when the two powers controlled this country because if they did they would have been put in jail. I do accept that as a situation that may well have existed here prior to Independence. I do this from my own experience of which I take judicial notice.
Having stated what I consider to be the position on which I shall base my decision, I will now consider the evidence placed before me so that I can determine who is, in my opinion, the true custom owner. I may well hold that some people have occupational rights because of the length of time they have stayed on the land and worked it but occupational rights are not custom ownership. If such was the case, Parliament would have incorporated something to this effect in the Constitution.
First of all, we have Kenneth Kaltabang who stated his ancestors came from Nuvilop to Vemari, above Lakatoro, where they built a Nasara. That Nasara is set out on the plan of the area made by the surveyor and marked 17. I accept that there is a Nasara there but at this stage must have reservations as to who built it. They, his ancestors, left Vemari and went to Uripiv and established a Nasara there called Lowi. He said his ancestors were the first persons to arrive in this area and that there was no one there when they arrived; that their ancestor, Lingabel, was born at Vemari but Lingabel in turn left there because other people started to arrive in the area and he was afraid he would be killed. Those people came from Nasaras Retoken, Tenevan and Bagensuis. Lingabel, because of such fear, moved with his people to Uripiv. He stated in evidence he could trace by means of what he was told, eight generations from Lingabel. He said the eldest person of his ancestors who moved to Amelingas was Jacob who died in 1942. He stated from knowledge gained from his ancestors that when his ancestors settled at Vemari they had their gardens in the Lakatoro area. He said he claimed Lakatoro place because it was his ancestor's place. He further stated they did not develop the disputed area because of a man named Jerome who obviously arrived and frightened the people away, even to the extent of shooting one of them.
Kenneth said his ancestors from Lingabel were:-
 ROEWI
NICELVERU
SERENMAL
MALSOMGALITE
PATE and
KENNETH (his father)
His father died in 1984. He has brothers:-
TERRY
 AUGUST
FRANK and
KENNETH (himself)
His evidence was consistent with that given by him in the Island Court.
He said he visited the Nasara when the surveyor, Edwin Arthur, came and he showed him the Nasara, plan marked 17. He said that a Mr Hill, an Englishman wanted to buy some land to grow coconuts. It was land now used by P.R.V. That he wanted to buy the land from Saulei but Saulei sent word to his grandfather , Jacob and that Kenneth, his father and Jacob came to sign the paper for the sale of the land to Mr Hill. The land in question was outside the Lakatoro area.
He said he was afraid to make his claim to the Lakatoro land because he was afraid of Jerome. That Jerome later left the Lakatoro area and he sold the place to a half caste, Gabi Lamoureux. He did not go to see Lamoureux because he may report him to the French gendarme and be put into jail.
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."
Certainly in this case, the Appellant Kenneth failed to complain but he has cogent reasons why he did not complain, one the possibility of incarceration in jail, which I have already stated could well be true but as Daly J. held, I also hold that failure to complain is a European concept and in customary law in Vanuatu is not acceptable.
Later Gabriel Lamoureux sold the land to the Condominium Government. There is an exhibit before the Court of the deed of sale from Lamoureux to the Condominium Government marked 16.
The witness produced the names of six generations to his father who came here. These names were not challenged. Again, this witness was not cross examined or his evidence in any way challenged, therefore I must accept what he said as having some substance of events passed to him by his father and grandfather. He impressed me in the manner he gave his evidence. I did not get the impression that it was a made up story.
I have researched dealings with the land in dispute and have found the first deed of purchase was executed in 1883. Exhibit 14. It was between the Chiefs of Kaoumbe, Sarinmale, Sienmale and Maltassi and the Chiefs of Taberangari, Belcale, Singanamale and Gounesine and Compagnie Caledonienne des Nouvelles Hebrides. One of Kenneth's ancestors was Serenmal and that name appears in the deed of sale as Sarinemale which was the French way of spelling the name. The area of land sold was 8,210 hectares more or less. The boundary is:-
	1. On the South West, the Litzlitz beach.
	2. On the North East, the sea shore for a length of 5 kilometres 550 metres.
	3. On the West North West, by the Kaoumbe river.
	4. By a line from the mouth of the Kaoumbe river running South West magnetic for a length of 14,800 metres.
	5. By a line from Litzlitz running South West 14,800 metres long.
	6. By a line inland joining the two ends of the two South West lines 14,000 metres long, this line is almost parallel to the beach and about 5,500 metres long.
This deed seems to confirm that one of the ancestors of Kenneth was party to a sale of land one hundred and five years ago to the French Compagnie Caledonienne des Nouvelles Hebrides and if so, then there is substance in his submission that his ancestors were the first persons on the land and are thus custom owners.
Mr Kalkot Matas Kelekele, Counsel for the Appellant, submitted that the Appellant mentioned two of his ancestors, Tesrak and Neskel who lived at Vemari. That the Appellant also said that "My father actually saw Tesrak and Neskel." He then submitted - if that piece of evidence is accepted, then it indicates that the remaining ancestors of the Kenneth family at Vemari only died out perhaps in the early part of this century since old man Kenneth actually saw them. That if that factual situation is accepted, it strengthens the claim made under the first submission of Kenneth's family as the first settlers, and it shows also that Vemari Nasara was not completely abandoned for the odd 200 years or so since the time of Lingabel.
I accept this submission of Mr Kalkot Matas Kelekele as sound reasoning.
There was placed before the Court a custom song about Saulei and Saknambit. The song was sung in the Court at my request.
Mr Kalkot Matas Kelekele, in his submission, about the song stated:-
	"1. The song is not about Saulei alone but also about Saknambit.
	11. The song specifically refers to the cutting of the gong and the killing of the pig but does not refer to Saulei becoming Chief.
	111. The word 'Amil Mari' is mentioned as referring to the Nasara of Vemari. The Second Appellant's elderly witness, Murmur Bae referred to Vemari as 'Amil Mari' or "Vemari' was already in existence when Saulei performed his ceremony. This tends to show that if Saulei did build a Nasara called Vemarang, it may have been a change of name for the same Nasara, or it was a different Nasara near Vemari where he himself performed his ceremony."
I again consider that the reasoning placed on the words of the song is sound and I see no reason to disagree with such reasoning.
One of the Respondent's chief witnesses, Chief Bersi Timothy of Litzlitz stated in Court:-
	"The first person to build a Nasara owns the land. If someone else moved from somewhere to here (Lakatoro) the land still belongs to the first settler. Yes, if it is true that the Kaltabang Kenneth family were here first, they can return and own the land."
Even the Respondent, Sato Kilman, stated in evidence:-
	"If I agree that Kenneth's ancestor built Vemari and no one else was here before that, then the land is his."
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). As the Respondent has been on the land for many years his title is good against the world except the true owner. 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.
Kenneth Kaltabang called a witness, John Sande who was chairman of the Uripiv Land Committee. The Committee made a record of people who migrated to Uripiv. The name Kaltabang is in the register, Exhibit 2.
He called John Regenvanu from Uripiv, who stated that he heard old man Kaltabang talk about his land. That is Nuvilop and Lakatoro and that Kaltabang's father told him the boundary of Lakatoro starts at Aop. The evidence of these two witnesses was not challenged so I must accept it as the truth for what it is worth.
We then had Frank Kenneth giving evidence. It was he who wrote the entries in the register book. The entry of the Kenneth family of eight generations are recorded therein. He corroborates his brother's evidence. He said the Uripiv Land Committee petitioned the President. That a person from the Ministry of Lands came to talk to the Land Committee - they met at Lakatoro. There was no representative of Sato Kilman at the meeting.
He then explained the form of adoption; one is breast adoption called Topsis. The second adoption is where a pig, yams and money are given - this is called Tasus. If there are two ceremonies, the adopted boy has full rights to the person who adopts him.
He said the Respondent, Sato Kilman was only adopted whereas the descendants of the true custom owner are still alive. He said that Saulei belongs to Tembogo Nasara which is a long way from Lakatoro. That his father called Saulei uncle in English and father in custom. That his father and Saulei were related. That Jacob, his ancestor came from Amelingas. That when Jacob died, all his rights went to Kenneth. They would not go to Saulei because he is from Temebogo and they know themselves only through adoption. He contends that Saulei was adopted by Jacob's brother, Maltese Neal.
That the claim of his family is based on Vemari. That at one time Ambe and Morris came to the plantation at Blackgate to cut bamboo for a house at Uripiv. That they sought permission from Saulei but he told them the owner of the land is on Uripiv and to go and ask him. They asked Jacob and he gave them permission. Blackgate is marked on Plan 1. It would seem from these two incidents that Saulei knew that the land belonged to Jacob.
 
He stated that on the 16th August, 1982 there was a discussion about the land arising from the petition to the President. The chiefs of Uripiv, Tautu, Litzlitz, Ligarak and Uri were present. The meeting was at the Court House in Lakatoro but no decision was taken.
 
He further clarified the reason why the claim is made by Kenneth. He stated that Kenneth Kaltabang is claiming the land for the Kaltabang family and that the family support him. His claim was not challenged so I must accept as the truth what was related to him by his father. This witness's evidence was factual and I see no reason to disregard it.
Mr Coombe, Counsel for the Respondent, in his submission seemed to suggest there may be something sinister in Kenneth bringing the appeal but Frank Kenneth has categorically stated that he did so on behalf of the family. This situation often arises and I therefore do not accept such submission.
The next witness called was Muramur. He was a relative by marriage of the Appellant, aged 78 years. He confirmed that he was one of the party who sought permission from Saulei to cut bamboo at Blackgate and was told the owner lived at Uripiv. That he and some nineteen others went to Jacob at Uripiv and got permission from him. He did say that Jacob adopted Saulei and Kenneth and that when a person adopts two boys in custom his land is divided between them. Again, in custom, if Saulei was later adopted by Melmetan he would inherit from him and lost rights to Jacob, in custom. He said his understanding was that the land at Lakatoro belongs to Jacob. Further, that if Jacob gave the land to both of them, it is up to them to divide it. All this may be so, but I must keep in mind that I seek the custom owner of the land, not a person who may well have occupational rights.
Finally, the witness August Kenneth gave evidence and stated that Vemari Nasara is up the hill from the Court and set out on the surveyor's plan marked 17. That stones are laid out there. He confirmed that his ancestors migrated from Nuvilop to Vemari; that some went to Amelingas and some to Uripiv. He contended that the Respondent is not from the area under dispute. That he is from Pentecost and that the Naman Committee are attempting to block their claim to the land. He was quite emphatic that his ancestors left Nuvilop some 100 to 200 years ago and they were the first persons to inhabit the place and so it belongs to them. This witness was later recalled and said his father and Jacob were related. They were brothers. That his first grandfather, Namun and his grandfather, Pate were brothers. That Jacob called Namun and Pate brothers, hence the relationship.
He stated Kenneth may have been adopted by Jacob but he did not see it but that the last part of the adoption was completed in 1942 by Kenneth. This occurred when Jacob died. Kenneth made a feast, killed a pig and had some yams. Kenneth organised the feast. The reason for such ceremony was that in custom all Jacob's rights were to be taken over by the Kenneth family. In reply to a question by the custom advisers, he said that they originally came from the same place but separated. Jacob went Amelingas and Kenneth's Nasara is at Vemari but they same together again at Uripiv.
He denied signing any lease of land to the Condominium Government.
The other Appellant, Charlie Malror, represented his brothers Bue Manie and Sandy Malror. I allowed this as it happens quite often that a family choses one of their kin to represent the others.
He stated that his father and grandfather have worked on gardens in Lakatoro. That he knew Jerome who was a trader with a store and had a coconut plantation. Jerome later sold his place to a half caste named Gabi Lamoureux.
He contended that Saulei had his Nasara at Drunk Drunk at Aop. That there was a fight between the people of Drunk Drunk and Amelingas over the death of a boy from Amelingas. That during the fight, Saulei's mother ran away taking Saulei with her and went to live at Amelingas and later to Tembogo.
He stated that when Saulei grew up, Meltekse was cross with him and wanted to shoot him. That when the white men came looking for workers, Saulei went on a ship to Noumea to work there. He is the only witness who said Saulei went to Noumea to work. This fact was not challenged but the Respondent did say that Saulei never told him about this event. I see no reason to reject this evidence. Whether Saulei went to Noumea because Meltekse was cross with him would be pure conjecture but it is reasonable to assume that something other than the white man's request urged him to go to Noumea. It was suggested that Saulei led a life in Noumea prohibited in custom but that was eventually rectified when Saulei killed a pig and was permitted to eat at the Nakamal.
He related that Meltekse was chief of Vemarang and Vemari. He said Meltekse, Malror and Saknambit built the Nasara but that people who had been there before had built a Nasara. He referred to events in the life of Susan Kilman which are not relevant to the matter before me and therefore I make no comment.
Again, he stated that before Jerome came, his ancestors were working gardens where the Public Works Department is situated. That his family moved to Vemari when Chief Meltekese was there.
He contends that Niall, the son of Meltekse, adopted Sandy Malror, his brother by paying 3 pigs, 15 pounds and 10 yams and that his father in return paid 10 yams, 5 pounds and 2 pigs. Such presents were left with Niall at his Nasara at Tembogo. This adoption took place in 1942.
Mr Siel who represented the Malrors put in a French document marked 11 which showed that land had changed hands.
This document tendered by Mr Siel and marked 11 referred to the same deed of 1883 as I mentioned on page three. One of the vendors in that deed was Chief Maltassi which was, in my opinion, the French method of describing Chief Meltekese.
Sandy Malror, in evidence, stated there were four Nasaras outside Lakatoro station:-
	Pembally
	Tenevan
	Retelent and
	Tembogo
but they grouped together to form Vemarang or Vemari Nasara. That he and family were from Retelent Nasara.
That he was adopted by Niall from Vemari. That Niall's father, Meltekse came from Tembogo which is up the hill behind Lakatoro and close to Vemari. I accept this evidence that there was such adoption.
From the witness's evidence it seems clear that the main Nasara is Vemari. This evidence is consistent with that of Kenneth Kaltabang that Vemari was the Nasara of his ancestors when they first arrived in the area.
He agreed that the Land Committee gave rights to Sato over Tembogo and Amelingas but he did not agree with the decision. I am afraid a bare statement of a Land Committee is not sufficient for me to accept such a decision, e.g. on what grounds did they make such a decision?
He further contended that he did not steal Sato's coconuts as it was Niall who planted the coconuts and not Saulei. Again, he contests the suggestion that the Native Court decided the land belongs to Sato. Again, I cannot accept such as there is absolutely no proof that a Native Court did make such a decision and if they did, what were the grounds for such, e.g. was it because Saulei lived in the area for a number of years?
Finally, he contended that he stayed with Saulei for a short while. He agreed that Saulei adopted Sato but it was only a breast adoption.
If Sandy was adopted by Niall, who was the son of Meltekse, then he, Sandy, would be entitled to any land rights which Niall had prior to his death. It seems to me that the Malror family have occupied land in the Senal area for twenty to thirty years.
The Respondents' case is mainly based on the fact that they have been on the land in dispute which they say is Tembogo land for a long time and that the ancestors of families who first adopted Saulei and who, in turn adopted the Respondent are the custom owners of the land. I certainly accept the fact that they have been in the area of Amelingas and Tembogo but whether Tembogo does in fact include the area in dispute is a matter which raises considerable doubt in my mind.
The mother of the Respondent has stated certain facts which cause me some concern. At times, I got the impression that the facts fitted too well as it were in the puzzle, to be true. For instance, it would seem I am asked to accept that Saulei must have visualised that one day there would be a case as to the custom ownership of this land and so told her and the Respondent facts important to their case. I have some reservation that Saulei had such in mind. Why should he relate cogent facts to her when he knew nothing about a Constitution being brought into existence which would contain articles stating that all land in the Republic reverts to the indigenous custom owners and their descendants? I would have thought that as he signed at least one lease, he would think that it was an accepted fact that the land belonged to him, so why the necessity of relating facts to Susan and the Respondent when such were not required.
The fact that a lease of a portion of the land in dispute was signed by Saulei and by Susan and Kilman on behalf of the Respondent does not prove in any way either are the custom owners. It proves, in my opinion, that the persons who dealt with them accepted them as persons who were on the land for a long period and were accepted by people as the owners but not necessarily the custom owners when the leases were made.
It is clear to me that the custom of Malekula is that 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.
The Respondent gave evidence and called other witnesses who supported his contention that his ancestors were on the land for many years and that he was properly adopted by Saulei. I accept this.
As Saulei was adopted by Malmetan, the brother of Chief Melteskse, it seems to me following Vanuatu custom that Chief Malmetan also had rights in the land in dispute even though his name does not appear in the deed of 1883. It is quite usual for one member of a family to represent and sign documents on behalf of the rest of the family.
I hold that Malmetan was also part owner of the land sold in the 1883 deed and therefore on the death of Malmetan, Saulei inherited his adopted father's rights. In turn, on the death of Saulei, Sato his adopted son would inherit Saulei's rights, and therefore is also the custom owner.
I take the date 1883 as the crucial date in deciding custom ownership as I have definite proof that all these persons, Serenmal, Meltekse and Melmetan were alive at that time.
I have concentrated in this judgment on the evidence of Kenneth Kaltabang's case as the facts related applied in certain instances to the three parties and it gives a background history of the incidents that took place many years ago.
Regarding the first persons to arrive on the land and build a Nasara, I have some reservations. I am of the opinion that as there is proof that the three ancestors of the three parties were alive in 1883 and were instrumental in selling the land to the French company, I should hold that the three parties are equally the custom owners of the land. The question of who arrived first and built a Nasara has not been proved to my satisfaction therefore I cannot hold that the Appellants' ancestors were in fact the first persons to arrive and build a Nasara there.
Regarding the other signatories to the deed of 1883, I hold that the descendants of the other persons named have no rights to the land in dispute as they have not made any claim. However, it is possible that the descendants of some of them may have a claim to custom ownership of the remainder of the land sold in 1883, the boundaries of which are incorporated in this judgment. That of course will be the subject of another case should such a claim be made.
I therefore hold that the Kenneth Kaltabang family, the Sandy Malro family and the Sato Kilman family are the true custom owners of the land in dispute and it shall be divided equally between them.
It is hereby ordered that any compensation paid by the Government of Vanuatu for the State land which is set out on the plan attached shall be divided between the three custom owners. One third to each family.
"State land" is defined in Section 1 of the Land Reform Regulation 1980 as all land in Vanuatu which on the 1st day of January 1980 was owned in freehold or perpetual ownership by the British Government, the French Government, the Condominium or a Municipality.
Under Section 9 of the said Regulation, all State land shall be vested in the Government and be public land and be held by it for the benefit of the Republic etc.
It is further ordered that any lease of the disputed land other than the State land must be signed by a representative of the three custom owners. It is also ordered that the custom owners have no right to interfere with any project on the State land. All the custom owners are entitled to is compensation for the said land.
Leave is granted to the declared custom owners to refer back to the Court any dispute that may arise between them as to the allocation of the land within the disputed area and not the State land.
Costs of the hearing of this case and the Surveyor's fees shall be borne equally by the three custom owners and shall be deducted from any compensation payable to them by the Government for the acquired land. Each party to pay its own costs.
Dated at Lakatoro this 5th day of July, 1988.
FREDERICK G. COOKE
CHIEF JUSTICE