Home | Databases | WorldLII | Search | Feedback Supreme Court of Vanuatu

Tabae v Hakwadali [1989] VUSC 5; Civil Case 002 of 1988 (23 November 1989)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

LAND APPEAL CASE NO 2 OF 1988

BETWEEN:

CHIEF JOHN TABAE & VUROBARAVU FAMILY
(Appellants)

AND:

CHIEF JACOB HAKWADALI
(Respondent)

JUDGMENT

This is an appeal against a decision by the Island Court given in the 25th May 1988 which stated:-

"At the close of the evidence and after having seen the customary marks of both families, the Court decided that Aroke belonged to Chief Jacob Hakwadali and that Naviaru belonged to Chief John Tabae and the Vurobaravu family."

The court found out that Chief Jacob had more rights to Aroke and that Chief John had every right to Naviaru except some place of Naviaru as set out in the sketch plan produced by the Court.

Following the sketch plan of both families the Court made the following decision:

Decision re boundaries of Aroke and Naviaru

The Court studied the boundaries claimed by Chief John Tabae and the Vurobaravu family known as 'Babatavera'. The Court found that this was not the true boundary dividing Alehuta and Alehilao.

The Court found that the boundary given by Chief Jacob was the true boundary dividing Aroke from Naviaru. The Court also found that the big creek on the other side of Naviaru boundary was the true boundary dividing Alehuta from Alehilao.

Aroke:

The Court decided that the boundary dividing Aroke from Naviaru started at the sea by a Nabanga tree which Chief Jacob claimed and then went up to a Anavuitavaolo tree and then up to a Namalaus tree and then straight up to two big banyan trees near Shaddrack Shem's school, in the area of Tanmial. The banyan tree at the corner of the fence belonging to the Malekula people covered all the land which Jacob had already sold to people form the islands. The boundary started from Jacob's house and the coconuts cut down from the Vurobaravu family and then ran back down to the sea, to a wild navele tree. This is also the boundary with Avuai which rights have already been given to Chief Jacob. The land which Chief Jacob has already sold people from the islands have bought and therefore Jacob cannot interfere again. The Court decided that Chief John and the Vurabaravu family have no rights to Aroke.

Naviaru:

The Court decided that Naviaru belonged to Chief John Tabae and the Vurobaravu family and the Court decided that the boundaries of Naviaru followed the boundaries of Aroke i.e. from the Nambagura tree at the Amuka stream claimed by chief Jacob up to the Anavuitavoalo tree, then to a Namalaus tree and from there following the fence up to the creek, then across the creek and following Chief John Tabae's boundary produced to the Island Court which covers the Naviaru boundary. The Court found that on the other side of the fence the land belonged to another custom owner.

Against that decision, Chief John Tabae and the Vurobaravu family appealed to this Court on the 1st June 1988.

Mr Kalkot Matas Kelekele appeared for the Appellants, the Vurobaravu family. The Respondent was not represented.

I consider there are four issues to be decided:-

1. Where is the Babatavera line?

2. Who are the custom owners of land in Alehilao?

3. Is the Respondent entitled to any land in Malo?

4. Do the Vurobaravu family own all the land in Alehilao?

Appellants Case

The Appellant contends that the sons and relatives of the Vurobaravu family are the custom owners of land 1 to 12 on Exhibit 2 and that they claim the custom rights through their great grandfather Garaeviti, a big chief who got his name from Naviaru which is derived from an oak tree which was destroyed by fire but there are other oak trees on the land and the custom of Tanohasace. The Appellant gave evidence and stated that the boundary which divides West and East Malo is Alehuta on the South and Alehilao on the North. That the boundary which divides the two areas is called 'Babatavera' i.e. a custom boundary set but on Exhibit I from B to F. He then continued by stating his family tree to be:-

GREAT GRANDFATHER GARAEVITI

He had six children

SALAHORO
MOLIENO
MOLIAGEA
MEMENAVIERO
MOLIDOLORO
TOKOLE

That TOKOLE had two daughters called:-

VELANGAMATA and
DESUDELUI

DESUSELUI married and had three children:-

URVERI LEO
MOLICROLELE and
MALEHI

That SALAHORO married and had one son:

VUROBARAVU
MOLITATEVANAU (Adopted)
ULIVRIAKA

That VUROBARAVU married three women. As a high chief he could in custom do so.
His sons were:-

JAMES LEODORO
ANDREW MOLIENO
JOHN TABAE (Appellant)
VUROLILIU
JONAS MOLIHINE and
NIKINIKI

There is a custom water at Naviaru, a fresh water spring which belongs to Garaeviti. The Court visited the area and saw the fresh water spring close to the sea-shore. Also there is a Namele tree. There had been custom ceremonies of killing pigs at the Nakamal. A pig with a rounded tusk must be killed at the Nakamal and the tusk with another pig must be brought to the Namele tree for killing and then the tusk of the first pig must be washed in the spring water before it is placed in the Nakamal. The witness stated there are still breadfruit trees there belonging to Garaeviti who died sometime in the 1800s. The spring is beside a Nambanguru tree with a hole in it. He said his father died in 1956 and that the spring dried up in the same year. On the 8th August 1989, the dried up spring was shown to the Court. It was noticed that fresh water was running from the land onto the shore a short distance from the dried up spring.

Counsel for the Appellant produced a plan which was marked Exhibit I – the spring is marked "N1" on the plan. "A" is the place where the Nambangura tree stands with a hole in it. The witness said N2 is approximately the starting place of the Respondent's claim. He said the breadfruit was called Titiro because Captain James Cook came ashore at Reungarae, "J" on the plan, to collect some breadfruit which he smelt from his ship. In Malo language when you smell a thing and go to the place where the smell comes from, it is called "Titiro".

The witness then described what "Babatavera" was. He said it was the boundary line between Alehuta and Alehilao. That Garaeviti and Vurobaravu are from Alehilao area. In fact all his descendents are from Alehilao area. That "Babatavera" starts from "B" on the plan, the Navele tree to a rock at "C" then to a Vivilae tree at "D", then to a Mango tree at "E", then to a Namalaus tree at "F".

That there was a Nabiriri tree at "B" which died but a piece of rotten wood was shown to the Court on the 8th August 1989. That the Vurobaravu family chose the Navele tree to replace the Nabiriri tree as it was the nearest tree to the tree that died. He mentioned that his father showed the mark to him and his brothers in 1955.

He continued by stating that the rock at "C" is a big white stone as big as the witness box. This was shown to the Court when it walked the land on the 8th August 1989.At "D" it was noticed that the Vivilae tree was covered by a Banyan tree. The Mango tree at "E" is within the Alehilao area. The witness stated when he walked the area with the Island Court Justices he saw the rotten roots of the Namalaus tree which he showed to the Clerk of the Island Court but on 8th August 1989 the rotten roots had been removed by someone. That the Babatavera line goes North to a Banyan tree and then to the SDA Mission near Tanmial.

He said in about 1940 the people of Alehuta led a blockade to prevent people from Alehilao from hunting in their area. Babatavera was the boundary. He said he saw the blockade and his father showed him the boundary. The blockade was only for hunting pigs. He said he respected the boundary today in land matters. He said there was an old man called Ekita who uses Alehuta pronunciation or dialect. He said to hear people speaking you would recognise which of the two areas they came from. The old man Ekita is living in the Apostolic Mission. Before the Island Court there was a statement by his son, Charlie, that his father knows the boundary. Charlie told the Court that the boundary started at the Nabanguya tree near the swamp called Amathuka. The swamp is near "N2" on the plan, Exhibit 1 and close to the breadfruit tree near "A". Further that Ekita showed him the boundary between Aroke and Naviaru. That "N2" on the plan was the commencement of the boundary to "G" in red and then to "H" in red. Charlie said that Ekita showed him these marks during the hearing of the Island Court. The witness said that after the hearing of the Island Court, he and his brothers on the 19th May 1988 visited Ekita and that he asked Ekita whether he had made a statement about the boundaries at "N2-G-to H" concerning the division between Aroke and Naviaru and that Ekita told him he did not make a statement about that land as it was the Vurobaravu land. That Ekita further stated that he did not tell Charlie that such was the boundaries and that he had no right to show some else's boundary marks. The Court visited Ekita at his home and recovered his statement. He clearly stated that he did not know the boundary and what Charlie stated was untrue.

It was noticeable that in cross-examination no questions were asked of this witness to substantiate the evidence that Charlie was suppose to have obtained from Ekita.

The witness said that Aroke is the name of spring water and means the spirit that lives in the water and it turns into a red fish. It is a tabu place and a long time ago red animals used to be seen there.

He said the boundary of Aroke starts at "J" on Exhibit 1, then to "K", then to "D" and then down to the sea.

On the 8th August 1989, the Court saw two spring waters near the sea. A bathing pool made near one of the springs was broken by the earthquake. There is also another spring there. The two springs are called by Malo people PORCEMOI (earthquake hole).

Referring to the plan, Exhibit 2, the witness said that:-

No. 1 – Atapuso in red was sold by Vurobaravu

No. 2 – Asaceveci in red-Tabuia sold to Jacquier. Tabuaia is the adopted son of Moliavia.

No. 3 – Anatanorao was sold by Ouri Ouri to Jacquier. He is the son of Malitatevanua an adopted son of Salahoro.

No. 4 – Anaonetapu was taken over by a white man a long time ago. It was a French company, then sold to Jacquier; then to Jacquier's brother, Edward.

No. 5 – Amauka was sold like No 4.

No. 6 – Aroke was taken by a French Company-until possessed by Jean Marcel.

No. 7 – Beunsasara-sold by 3 brothers Ouri Ouri, Leo Jonas Marckuro Leo and Maliki Titus to Jacquier Edward by now with Jean Marcel.

No. 8 – Abuhasi-claimed by Jacob-Respondent in this case. I do not know how he got it. He has no rights to that land. Abuhasi is in Alehilao Chief Jacob can only claim in Alehuta. The land belongs to us.

No. 9 – Anavibulabula-Jacob also claims that. He has no rights to it. His father Saranavanua is from Alehuta-he can only claim in that area. This land belongs to us.

No. 10 – Anaralitu-my brother sold it to Malekula people. In custom of Malo the land cannot be sold but because of the land problems of both sides. The custom owner is Asinamoli. He had a son called Susukokona. Before he died he gave his rights to the Vurobaravu family. He had no children.

Having considered carefully all the evidence in this case and the submissions made by both parties I have reached the following Conclusions:

The evidence for the appellant was given by the Appellant, Vurolilao, Daniel Kasu, Chief Frank Tavino, Titus Melaho, Ouri Ouri Ravo, Titus Lilinavura, Edward Jean Jacquier, Vekeraenaduru and David Ware.

They established the following points-

1. That the Babatevera was from B on plan Exhibit 2 to C, D, E and F and to middle of Malo.

2. That the land 1 to 12 on Exhibit 2 belonged in custom to Vurubaravu family.

3. That the ancestor was Garaeviti with connection in Malekula through the marriage of Solehero son of Garaeviti.

4. That the custom of Tanohasace existed giving land to the Vurubaravu family.

5. That both Sibitikaso and Susukohona gave land to the Vurubaravu family.

6. That land was sold illegally by Respondent.

7. That land was given by Vitnaboe to use as a garden part which Respondent later sold.

8. That Respondent never mentioned when working for Edwin Jean Jacquier that he owned any land in Aroke and

9. That most of the bride price of Respondent's mother was paid for by Tarikokona and was not paid back for 30 years.

I accepted the evidence given by these witnesses as the truth.

Regarding the evidence by the Respondent's son Paul, Respondent, Chief Willie Leurevirerer, Chief George Livulivu, Chief Thomas Tenten, Chief Jimmy Kavu, Ekita, George Bevu. The points on which they failed in my opinion were:-

1. Respondent's son though he did his best was confused from time to time. He tried to remember everything his father said but had a habit of adding material which was not totally true. All the documents he produced were suspect and not accepted.

2. Respondent gave the impression that he merely worked on other people's land in Malo. Work was not done on any land claimed by him except maybe Abenunuru which was not in dispute.

3. Respondent failed to convince me that Bononavenua who made merely one trip to Malo was a person who knew anything about Malo. His visit was sort to have no value. He based his claim on the evidence of three old men long since dead. One would have expected some strong evidence from some ancestor. He did not convince by proof that he was the customs owner of any land within areas 1 to 12 on exhibit 2.

4. Witness George Livulivu was a witness whose evidence was a tissue of lies. He produced a document which was totally false.

5. Chief Thomas Tenten's evidence that the boundary was at the Creek. He continued by saying that his father was sick at the time, that his father could have made a mistake and furthermore he was only 14 years then. It is my opinion that a boy of 14 could not remember something said to him some forty to fifty years ago.

6. Ekita confirmed that he did not know the boundary of Alehuta and Alehilao and did not tell his son Charlie that he did. He said he heard Respondent owned land at Abenunuru (which is not disputed).

7. George Beru whom the Court visited at Ambae, grandson of Tarikokona. He said his grandfather gave 3 pigs towards the bride price of Respondent's mother and that it was not paid for thirty years.

8. The customs advisers informed me as a result of Torikokona paying most of the bride price the Respondent was a pig child of Ambae and his rights are to land in Ambae.

I therefore find that-

1. The Babatevera is as stated by the Vurobaravu family and set out B to C, D, and F on exhibit 2.

2. That the customary owner of land 1 to 12 in Exhibit 2 is the Vurubaravu family and anyone occupying any part of that land must either leave the land in tthree months from today's date or come to some lease arrangement with the Vurubaravu family.

3. That any decision of the Council of Chiefs with reference to Aranabokere is null and void.