[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 o Constitution,
whi 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
toparticular facts of the appe 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 thre 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 aaustive six hours, coveringering some 16 miles,
the reason thag that most of the area walked lay outside Metaven
No. 2.
e hearing was finally ally concluded on 6 January 1987, and the wing
wing
day was reserved in order to obtain theion
o Custom Advisers sers in
compliance with Article 72 of the Conston. The Arti Arti Article requires
that the rules of c
shall form the basis of owof ownership and use of land
in the Republic, and consequently I framed certain questions for the
Cus Advisers to answer, as , 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 3,5503,550 hectares
- On 5, 1982 Frank Uank Uran
and Family
Frank Aand Family
y
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
relntion to theo the custom claims by each of the parties?
(It is necessary to
refer to the Schedule of Documents, as wellhe ledated 31 October
1977 writt Mr&y Mr F.W. Gidley to
Mr&S.sp;S.   Regenvanu in the
nsideratderation of this question.) These purchases were made by Mr Corlette
during
the years 1904-1907 and are verified by documents, in whhe
ndorsnaturestures or m or marks were witnessed; such documents ants
are numbered
1-17 and the purchasers in the last mentioned documee Edith Isabella
CorleCorlette 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. vanu. The pure purchase of the piece of land
was obviously to enable Mr Corlette to secure thole
onle on the
main because Mr Gidley states that it was tere that he kept his
ships; the land is nois now part of Reserve
R. 3.
>
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 pa land 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
und known as Lolnevnu, and 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 rougt 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 i also spelt Potindi) is nois not shown on the survey map, but it is shown on
(Exhibit A) aanding
point in Port Strt Stanley Bay. Further
identification of Lolnevnu can be gleaned from Mr Gidley's letter
(AnneRure R.9),
as I regard him entirely independent impeccable source
of informationation. In paragraph 4 he writes:
pan>
"Mr Corl our predecessor, had no disputes
with the custom clai 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 kept their
ships. Thi. This land was later included in the area registered Native Reserve R.3,
45 hectares."
span>
Other ece arises from when the land was viewed on 21 Novemberember
, and I ad 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 Corlethich is stated to be o be "about
750 acres
more or lest;. Mt;. Metaven No.2 comprised a total area of 307 ha 08 a as son plon plannbsp;399.;399. The difference
between the Imperial and
Metr Metric measure is approximately 2.5 acres to one he. It will bell be
, thee, that even if
Mr Regenvanu's assertern were were core correct,
Metaven No. 2 would slightly exin area area the land Abraham sold
to
Mr Corlette. However preponreponreponderance of evidence shows that the
Regenvanu family claim based on thertion 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 nce is this: "where there is a conflict of
traditional
evidence, one side or the 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. Ond. 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 e declared custom owners for the purposes
of dealing
wing 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 theerroperty 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 is, who
shall
hold the land on behalf of their people inle 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 automatically become come the
other custom owner.
This is important because the custom owners will be able to grant a lease the property, if for instance,
the people of the two islands consider that
it will 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 tople
ople 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 anydivision at the present timt 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 resolve put asid aside
their differences and work for the future prosperity which should result
from this new acquisition. Asmur said in evidence when the reserve
lands were divided between the peoples of Uri anri 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 Supremet
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 arehead
chiefs for tfor the time being of Uri and Uripiv Islands respectively, (the head
chief of Uripiv Island is to be ed for this purpose), who will hold
such land in trust and for the benefit of the peop
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 intero the land is prepared to
give sworn
evidence to this 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
