IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Land Appellate Jurisdiction)

Land Case No. 1 of 1994

In the matter of: A Land Appeal from the Efate Island Court. A land situated at and around Bauerfield airport called “MAROPE” on the island of Efate

BETWEEN:

FAMILY SOPE IMERE
of Mele Village, Efate
First Appellant/Appellant

AND:

CHIEF NUNU NAPERIK MALA
of Rangorango, South Efate,
Second Appellant/First Respondent

AND:

IFIRA COMMUNITY
of Ifira Tenuku, Efate
Third Appellant/Sixth Respondent

AND:

IFIRA TENUKU COMMUNITY HOLDING LIMITED
Fourth Appellant/Fourth Respondent

AND:

FAMILY KALSAKAU,
Ifira, Efate, Vanuatu
Fifth Appellant/Third Respondent

AND:

NAFLAK TEUFI tribe
of Ifira Tenuku, Efate
Sixth Appellant/Second Respondent

AND:

FAMILY NIKARA
of Mele Village, Efate
Respondent/Fifth Respondent

Coram: Justice P. I. Treston

Chief Kalkot Mormor - assessor
Chief Dellwing Manapanga - assessor
Chief Steven Maserei - assessor

Mrs. Nari for Family Sope Imere (Mele village)
Chief Mala in person
Mr. Kalsakau and Mr. Malcolm for Ifira Community
Ifira Tenuku Community Holding Ltd
Family Kalsakau
Mr. Daniel for Naflak Teufi Ifira
Mr. Yawah and Mr. Boar for Family Nikara

Date of Hearing: 17 & 18 November 2003
Date of Judgment:

JUDGMENT ON APPEAL

DISPUTE

This case concerns a land dispute over land called Marope located on the island of Efate in the vicinity of the Bauerfield International Airport. There were seven claimants in the Island Court in 1993 and all those parties took part in this appeal. 

ISLAND COURT DECISION

The Island Court decision was delivered on 25 February 1994 and the actual Orders were as follows: -

"After hearing of each case of the Marope Land Dispute, located on a map which is annexed in the judgement, the decision of the court is as follows:

1.	The Court is satisfied that there are two different custom owners to Marope land. The map annexed in the judgement shows two different parts of the Marope Land with two different custom owners.

(a)	The first part, marked green, covers Title: 118, 131, 2757 (31/002), 3242, 94.

(b)	 The second part, marked blue covers Title areas which were sold by Chief Nareo (1872 - 1884):

•	Narrowby Land Title: 57J, 57K, 57L, 57N, 497, 2904, 1964, 1231/3/760, 3762, 3899, 128, and 2910.
•	Malaroa Land Title: 534, 111, 129.
•	Ebooka Land Title: 378
•	Mapuana Nattapu Land Title: 519
•	One part of Erango Rango Land Title: 3922.

2.	The Court is satisfied and declares that Pastor Pierre Nikara of Mele Village is the true custom owner of the Sawareo Land which is in the boundary of the Marope Land - it covers the Titles: 118, 131, 2757 (31/002), 3242, 94. The parts are coloured green on the map.

3.	The court is satisfied and declares that the Nikara family and all its descendants, accordingly to custom have perpetual rights to occupy and enjoy the land coloured green on the map covering Titles: 118, 131, 2757 (31/002), 3242, 94. These rights include the right to grow crops, make gardens, build houses, live on the land (occupation of the land) subject to any government restrictions. These rights also include right to receive rents or any profit out of the land. These rights are not limited to these stated above.

4.	The Court is satisfied and thus declares Pastor George Kano the true custom owner of the land marked in blue on the map, the land areas covers;

•	Narrowby Land Title: 57J, 57K, 57L, 57N, 497, 2904, 1964, 1231/3/760, 3762, 3899, 128, 2910.
•	Malaroa Land Title: 534, 111, 129.
•	Ebooka Land Title: 378
•	Mapuana Nattapu Land Title: 519
•	One part of Erango Rango Land Title: 3922.

The Court decision does not affect Land Title 57I, 57M, which are on the map, both areas are outside the boundary claimed.

5.	The Court is satisfied and declares that:

(a)	Naflak Teufi Ifira (LC.2) and their descendants;
(b)	Chief Nunu Naperik Mala and his family (LC.1) together with their descendants;
(c)	Family Sope of Mele village and their descendants;

According to custom laws, have perpetual rights to occupy, use and enjoy the area on the map marked in blue. These areas cover the Land Titles of:

•	Narrowby Land Title: 57J, 57K, 57L, 57N, 497, 2904,  1964, 1231/3/760, 3762, 3899, 128, 2910.
•	Malaroa Land Title: 534, 111, 129.
•	Ebooka Land Title: 378
•	Mapuana Nattapu Land Title: 519
•	One part of Erango Rango Land Title: 3922.

This customary right includes the right to grow crops, make gardens, build houses, and live on the land subject to any government restrictions. This right also includes right to receive rents or any other for, of profit.

6.	The Court is satisfied and declares that the Kalsakau Family (LC.3) and their descendants have the same perpetual rights to occupy, use or enjoy the Narrowby Land Title: 57J, 57K, 57L, 57N, 497, 2904, 1964, 1231, 3760, 3762, 3899, 128, 2910 with the Naflak Teufi Ifira and their descendants, Chief Nunu Naperik Mala and his descendants and the Sope family of Mele village and their descendants.

This customary right which the Kalsakau family has obtained includes the right to grow crops, make gardens, build houses, and live on the land subject to any government restrictions. This right also includes the right to receive rents or any other form of profit.

7.	Perpetual right to occupy, use or enjoy the land and the other entitlement of the land is to be exercised and enforced under the control and direction of the custom landowner.

8.	The Court would generally accept application by any party to clarify the rights issued from the judgment of this Court.

9.	Right of Appeal ( see the Judgment pg. 4)"

Slight amendments in the above recording of the decision were made to paragraphs 3, 4, 5 and 6 because the English version was incorrectly translated from the Bislama version. The original judgment was written in Bislama.

GROUNDS OF APPEAL

Family Sope Imere contended as follows:

(1)	That the Court was wrong to make a declaration and order in favour of George Kano as he was not a party to the proceeding as an individual.

(2)	That the Court was wrong in law in treating George Kano as a separate party from Naflak Teufi Ifira.

(3)	That the Court misdirected itself in holding George Kano to be the custom owner while Naflak Teufi Ifira, which he represented, was declared as having perpetual rights only.

(4)	That the Court misdirected itself in holding that in custom, custom ownership rights over land are distinguished from perpetual rights to land.

(5)	That the Court was wrong in declaring the Kalsakau family as having perpetual rights to the land comprised in the Narrowby part of the Marope land as it had held that the Kalsakau family were not custom owners.

(6)	That the Court was wrong in law in holding that the only criteria for determining occupation was the existence of custom "Nasara" "Stones" "Nambanga" or "Fruit Trees".

(7)	That the Court misdirected itself in holding that different parties namely the Sope Family, Chief Mala and Naflak Teufi Ifira could have historical rights over the same piece of the land.

(8)	That there was no evidence to support the finding that the Kalsakau family could have perpetual rights to the Narrowby land.

(9)	That the Court failed to define the boundaries of the land concerned.

(10)	That the Court failed to give proper weight to the evidence given by the Sope family Imere.

(11)	That there was insufficient evidence to support the finding that George Kano's story was more credible.

(12)	That the judgment of the Court was against the weight of the evidence.

Chief Mala contended:-

(1)	That the Efate Island Court was wrong in custom and law in holding that:-

(a)	George Kano was a separate party from Naflak Teufi Ifira.
(b)	In custom there can be perpetual rights over the same land in addition to ownership.
(c)	The only criteria for determining occupation is the existence of nasaras, stones, nambanga and fruit trees.

(2)	That the Island Court gave judgment against the evidence and the weight of evidence.

The Ifira Community's grounds of appeal were that:-

1.	Custom land is held perpetually by a tribal community unless the land is disposed of in accordance with custom or by law.

2.	The Court should have delineated the land in terms of tribal ownership.

3.	The Court failed to consider other means of disposal of land including leaving the area, the ability of a chief to dispossess a family and abandonment.

4.	The findings were inconsistent with the evidence.

5.	The Court should have allowed the Sopes of Ifira to give evidence on their own behalf as a party.

6.	The use of the name Nareo by various parties was only after independence and is not custom.

7.	Rights of use follow the patrilineal system and a Naflak (or Clan) cannot own land.

8.	To give land to one party, knowing they are not the true owner, is contrary to custom.

9.	The land awarded should have been more properly delineated.

As to Ifira Tenuku Community Holdings Ltd it was accepted at the hearing of this appeal that that Appellant had no real custom standing and could not make a claim

The Family Kalsakau contended that: -

1.	The Court had misdirected itself to who could be custom owners of the land and in placing evidentiary value on certain documentation and in failing to identify custom places within the subject lands and as to the evidentiary weight to be placed on two axes produced by George Kano and as to the efforts of Paramount Chief Tarimata Kalsakau to reclaim the ownership of custom land.

2.	The Court erred in finding that Nareo, who was alleged to have executed the deed of sale, was a custom chief and that George Kano was a successor in title in chiefly line as custom owner and in failing to find that custom ownership of the subject land passed to Chief Tarimata Kalsakau and in dividing custom ownership of the subject land between two separate custom owners and in identifying Marope land and in finding the true custom land owners as it did.

Naflak Teufi Ifira said that: -

(1)	The decision of the Court to divide the Marope land into two parts was wrong in fact and in law, and was against the weight of the evidence.

(2)	The decision that Pastor Nikara was the true custom owner of the Sawareu land was wrong in fact and law, and was contrary to the weight of the evidence , and was contrary to custom;

(3)	There is no concept in custom law of perpetual rights to occupy and use land and even if there was there should not have been such a grant to the Nikara family as only a true custom owner can have perpetual rights. 

(4)	Pastor George Kano should have been noted as being the paramount chief of the blue land and as holding the land in trust for the appellant. 

(5)	To grant perpetual rights to more than one party is to make no decision at all as there were no provisions in law for determining such rights and what was provided in the judgment would lead to perpetual conflicts.

(6)	The form of the decision and the decision itself was against the weight of the evidence and should be set aside.

The Family Nikara did not file an appeal.

SUBMISSIONS

Family Sope Imere of Mele Village

Family Sope Imere submitted that the Court was wrong in law to make a declaration and orders in favour of George Kano because he is an individual and not a party to the proceedings and claimed custom ownership over the disputed land on behalf of the Naflak Teufi of Ifira (see judgment pg. 13 paragraph 4). The Appellants submitted that George Kano should not have been treated as an individual claimant but only as part of Naflak Teufi Ifira, and that, even on the evidence, there were five generations missing from George Kano's line. It was submitted that Family Sope Imere should have been declared custom owner particularly as the Court accepted the evidence of the deed of 1909. 

Second, Family Sope Imere submitted that the Court misdirected itself in holding that in custom, custom ownership rights over land are distinguishable from perpetual rights to land. 

A further submission was that the Kalsakau Family should not have been declared to have perpetual rights to any of the Marope land and that there are other criteria in custom for determining occupation, including traditional hunting grounds, resting places, areas used for gardening, and remains of burial grounds. It was contended that the Court overlooked the documentary evidence of the 1909 deed. 

Next the Appellant contended that Sope Imere, Chief Mala and Naflak Teufi Ifira could not all have perpetual rights over the same land.

Next it was submitted that in failing to define the boundaries of the area in dispute there cannot be finality to numerous disputes between various groups. The judgment has resulted in more confusion and has created more dispute.

It was submitted that the Court did not give full weight to the evidence provided by Family Sope Imere.

Submissions were also made as to why the other parties, other than Chief Mala, should not be successful.

Chief Nunu Naperik Mala

Chief Nunu Naperik Mala submitted that he, in fact, was the true custom owner of the blue land, being a direct descendant of the original owner, Chief Narewo through the woman Leitakae. He submitted that the Island Court was wrong to award ownership of the land to Pastor George Kano who was not a true descendant of Chief Narewo. 

Chief Mala submitted that, under the Constitution he should be awarded the right to own the land according to custom. (See Articles 73 and 74). The Chief referred to various ancestral evidence concerning his contention. 

Next, chief Mala submitted that Pastor George Kano is not a member of the Naflak Teufi Ifira claim but a member of the Erakor yam clan because his mother came from Erakor. He said that the Naflak Teufi Ifira, being a "totem" clan institution formed to promote peace and cooperation in Efate society, could not own customary land. 

The chief submitted that various evidence produced such as axes and the memorandum of Port Vila chiefs was not conclusive.

Chief Mala further submitted that the Efate Island Court had misdirected itself in finding that the Kalsakau family could have a perpetual rights in relation to the Marope land because such a right was inconsistent with custom and, in any event, that finding was not supported by the evidence or the weight of the evidence.

Chief Mala submitted that Narewo Marik Atelangi Family was the proper custom owner of the Marope land. Chief Narewo Marik Atelangi did have children and that he as a descendant should be the true custom owner.

Ifira Community

Mr. Malcolm on behalf of the Ifira Community submitted that the decision of the Island Court ought to be overturned as being unsafe and unreasonable and that the only realistic course was to send the whole matter to the Island Court for real argument by the real parties. 

In support of this, Mr. Malcolm submitted that the court indicated at p.39 of the judgment that, according to custom laws, land rights should revert to the Sopes of Ifira. However, the Sope family of Ifira was not a party to the claim, they were witnesses to the Ifira community claim. Therefore, with respect to the application of justice in this case, the learned Magistrate said that customary rights to occupy and use the land should go to the Sope family of Mele village. Mr. Malcolm submitted that that the decision was ambiguous because the Sope family of Ifira was found to be entitled to the land rights but as it was not a party to the claim, but only a witness, it could not have any award. Mr. Malcolm further submitted that the decision must be regarded as unsafe because that whole group of people, who had been found to have rights, was taken out of contention because it was not a party but other individual namely Pastor George Kano and Pastor Pierre Nikara even though they were not parties, but were representatives of a party, were found to be custom landowners.

In addition, it was submitted that the claim of the Ifira Community was dismissed without reasons in a single line, when the Court said, at page 36 penultimate paragraph, of the judgment. 

"Therefore, the Court is not satisfied that Ifira Community is the true custom owner of Marope land. There are a lot of people in the Ifira community who belong to Ifira Community but that they don't have any customary rights to Marope land."

It was submitted that that finding was a simplistic and an unreasonable determination, and should not be allowed to stand. 

It was submitted that the decision flew in the face of law and custom. It was submitted that there was no evidence before the Court that anyone other than Chief Mantoi Kalsakau III was the paramount chief and that much of the documentation produced by the Ifira Community was ignored by the Island Court as was the agreement between the Mele and Ifira tribes as to their agreed boundary delineation. It was submitted that the Island Court ignored the boundary issues and that the decision was for all those reasons unreasonable and unsafe.

Mr. Malcolm submitted that the real Claimant Chief Mantoi Kalsakau III, as representative of the Ifira community should be accepted as the paramount chief of the Ifira community and in custom should be the customary landowner of the Marope land.

Mr. Malcolm submitted that the Court had erred in finding that four different Families, individuals or Naflaks had exactly the same rights in respect of the same land. That was wrong in law and custom and has led to impossibility of resolving specific boundaries. 

Mr. Malcolm also submitted that the Family Sope Imere's claim should be disregarded as that family had moved out of Ifira and had lost its right. Mr. Malcolm also made further submission as to the rights of the other claiming groups on the basis of descendants and submitted that, if land ownership was based on the patrilineal system, every Naflak or clan would be owners of the same land, which is inconsistent with custom.

Family Kalsakau

Mr. Kalsakau submitted that the Island Court erred in customary law or customary fact in awarding the green parcels of land to Pastor Pierre Nikara of Mele village and in awarding the blue part to Pastor George Kano.

Mr. Kalsakau made submissions to the interrelation between the parties. Mr. Kalsakau made further submissions as to the working structure of Ifira customary law in relation to the intended sale of any land. It was submitted that the learned Magistrate misdirected himself in placing evidential value on the sale of the land in 1872 and placed no weight on the submissions made on behalf of the Ifira community and the Kalsakau family as to the boundaries involved. The learned Magistrate should have dismissed the claim of the Family Sope Imere on the basis that their claim in relation to the land changed in the course of the hearing and he submitted that the boundaries should have been settled first and in particular there should have been weight placed on the settlement between Ifira and Mele tribes as to the delineation of their boundary. 

He submitted that the Sope Family were not sure of the boundaries and that George Kano and the Naflak Teufi had fabricated and recreated their own history to substantiate their claim. He also submitted that too much evidential weight was placed on the connection between the two axes and the sale of Marope land. 

He confirmed that family trees were important but that there had been no cross-examination on family trees at the original hearing. Mr. Kalsakau pointed to inconsistencies in the judgment, for example, the learned Magistrate had said that the Nikara Family had a strong claim but was only given a small part of the land, and there were inconsistencies in the witnesses for the Family Nikara, and it was wrong to say that a Naflak had rights in perpetually. 

He submitted that the Ifira tribe was the one with a closer connection to the land and that it was wrong to hold against Kalsakau family because it failed to show the boundaries. It was most important to identify the particular land that the Court was dealing with. 

He further submitted that the Kalsakau family tree indicated where the true weight of evidence was and that there were inconsistent and unreasonable elements of the decision because confusion was caused and such confusion needed to be clarified. 

He submitted that the custom chief owns the land, not on behalf of the people, but owns it by himself as chief and apportions parts of his land to his family, relatives and descendants for their use. He said that custom ownership is not based on representation but is based on status and blood. He acknowledged that the custom on Ifira is that any person directly related to the chief acquires a privilege to be granted rights of perpetual use of the land.

Mr. Kalsakau gave reasons why the learned Magistrate had misdirected himself in relation to the chain of succession and the true custom of Ifira and as to how the Ifira people had originally used Marope land and adjacent lands for their gardens. He said that Chief Nareo was never a custom chief empowered to sell the land.

Analyses were made as to whether George Kano or Naflak Teufi had provided evidence sufficient to be awarded customary ownership and it was submitted that they had not and that George Kano had descended from a woman who could never have been of chiefly blood.

Mr. Kalsakau submitted that George Kaltoi Sigari Kalsakau should be ordered to be a true custom owner or the land or that there should be a fresh hearing of the claims by the Island Court.

Naflak Teufi Ifira 

Mr. Daniel on behalf of this Appellant submitted that the Island Court had jurisdiction to determine ownership of land only and could not make Orders for use or occupation of such land in favour of other groups.

He further submitted that custom rules as to the ownership of land are the only rules relevant to determining who the owners are. He agreed that in accordance with the authorities the best way to test traditional evidence is by reference to the facts of recent years and by seeing which two competing histories is the more probable. (See Lord Denning in TWIMAHENE ADJEIBI KOJO II v OPANIN KWADWO BONSIE & AND OTHER [1957] 1 WLR 1223.) 

Mr. Daniel submitted that, in holding that the Nikara Family had rights over certain defined areas, the Court did not give reasons for that finding although it did provide clear reasons for excluding other custom claimants.

It was submitted by Mr. Daniel that the Island Court made orders attempting to appease all parties and ended up clarifying nothing. 

An analysis was made in detail of the evidence and it was submitted that the finding of facts supported the prime determination of the rightful custom ownership but not the qualifications that were additionally made. 

It was submitted that there was no basis for the differentiation in the orders that were made and that the decision of the Island Court in finding that parties other than the custom owners had customary rights to the land was wrong because the paramount chief is the custom owner of used and unused tribal land and determines, in each case which clan member shall use what parts of tribal land. Long user by a clan member can give rights to possession. No party had presented any evidence that any parties other than the custom owner can have customary rights to land and the Magistrate was wrong in law

References was made to Article 75 of the Constitution providing that once customary ownership was acquired it was perpetual. Custom ownership once achieved cannot be lost. It was argued that any group, which can establish first ownership, must be the custom owner.

It was submitted that the custom owner of all of the disputed land should be Naflak Teufi Ifira.

Family Nikara

Although this respondent had not filed an appeal, it was submitted by Mr. Boar that this Court had the power and jurisdiction to consider Family Nikara's position and the Court could award custom ownership to Family Nikara of the whole of the land. That was significant because, when the parties were asked to clarify their positions at the commencement of the appeal hearing, Mr. Yawha said that Family Nikara did not seek to overturn or challenge the Island Court's ruling as to the green land and that the party was satisfied with the decision as it stood. The ground seemed to change during the hearing.

It was emphasized that the Court could have found that Kalsakau family had conceded that Pastor Pierre Nikara and his ancestors had a valid claim to the land.

Mr. Boar submitted that findings of custom made by the Court were open to it and that the Nikara family claim was based on the acquisition of the land through the patrilineal system. It was argued that the other claimants' cases were based on the matrilineal system and should be dismissed and the finding of the Court in relation to Pastor Pierre Nikara as being held to be the true custom owner of the green land should be upheld.

By way of alternative it was submitted that Pastor Nikara should be ordered to be the true custom owner of all of the Marope Land, blue and green.

LAW

An appeal from a decision of the Island Court concerning the ownership of land is governed by section 22 of the Island Courts Act [CAP. 167]. The relevant parts of that section are as follows: -

"(1)	Any person aggrieved by an order or decision of an island court may within 30 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.

(5)	…"

Three assessors were finally appointed after a proper process of elimination had taken place. There was no objection by any party to them.

The parties were asked, in accordance with the provisions of Section 5 of the Customary Land Tribunal Act No. 7 of 2001, if they wished this appeal to be withdrawn from the Court and dealt with under that Act. One of the parties did not consent to that course and the matter therefore remained before this Court.

Under section 23 of the Island Court's Act is provided:

"The court in the exercise of appellate jurisdiction in any cause or matter under section 22 of this Act may -

(a)	make any such order … as the island court could have made or passed in such cause or matter;

(b)	order that any such cause or matter be reheard before the same court or before any other island court".

It must be remembered that this is an appeal hearing and not a rehearing. The Court in a preliminary ruling on 14 October 2003 has given its view about how this appeal should proceed. 

When matters of custom are referred to, this is on the basis of the advice of the assessors who have considered the Island Court decision and who have listened to the submissions made. Their knowledge of custom is drawn upon by the Court in arriving at its decision. The Court is grateful for their assistance. In this regard S. 10 of the Act provides:-

"Subject to the provisions of this Act an Island Court shall administer the customary law prevailing within the territorial jurisdiction of the Court so far as the same is not in conflict with any written law and is not contrary to justice, morality and a good order."

The Court has considered the transcripts, the evidence and exhibits produced, the grounds of appeal and has heard the helpful submission made by the Appellants and the parties. At the conclusion of the appeal hearing, all parties were asked whether they had had full opportunity to make such submissions as they wished and to answer submissions that had been made by other parties. No points of contention or complaint were raised.

FINDINGS

It seems that the hearing in the Island Court occupied approximately three months in late 1993. The learned Magistrate heard much evidence and accepted many exhibits. As he was required, he visited the land before reaching his decision (see Order 18 paragraph 9 Island Courts Act).

The learned Magistrate was careful to set out the custom basis on which he arrived at his conclusions. At page 35 he said as follows: - 

"Outline of general consideration applied by the court to define custom land ownership, and to determine the true custom owners of Marope Land.

1.	According to Efate custom, particularly the Marope Land area, land ownership passes to the males. Custom Land ownership follows the Patrilineal system.

2.	The custom landowner is normally a chief, sometime there are exceptions when the custom owner is not a chief. The custom chief owns land on behalf of his people, who live and work on the land. the custom chief acquires land on behalf of his people who occupy the land.

Custom ownership is bases on representation. The custom chief represents the custom boundary of the land he and his people live and work on. The custom land belongs to the custom chief and his people. Custom land ownership is different from individual ownership. The individual landowner may dispose off / sell land in whatever way he wishes.

On the other hand, a custom chief cannot dispose off or sell custom land at his own free will.

3.	Every person under the authority of the custom chief has an interest or custom right, which is a perpetual right of occupying and using land, which is owned by the custom chief.

4.	According to the system of customary land tenure, the chief is the custom owner of the whole boundary, and like his people he owns, small portion of land within the whole boundary.

5.	This custom chief is a chief of one tribe, and at the same time the chief's tribe may lead a different tribe, hence it would make him the chief of different little tribes.

6.	Custom land ownership is transferred from father to son (grandfather, to father, and then to son). Customary land ownership is birth right.

7.	If a custom owner dies, then customary land ownership transfers to the brother after him. If the custom owner doesn't have a brother, then this right gets transferred to the first son of his eldest sister, in that way land gets transferred through the "uncle relationship"

8.	In the case of polygamy, land ownership rights go to the first born of the senior wife.

9.	If a person marries more then once, customary land ownership goes to the first son of the first marriage.

10.	Criteria of the first occupant of the disputed land. if a land claimant says that the disputed land was occupied by his forefathers, he should prove to the court such claim. The test of proof would be evidence of custom nasara (meeting place) and rock, a Nambanga (Banyan) or a namele tree (palm tree), Nakamal and taboo places. (A Title or Deed or Sale may be included too)."

In my view there can be no criticism of the statements of principle set out therein but of course the question remains as to whether those matters of principle were applied in an appropriate way.

In addition to that, the Island Court set out the correct procedure the boundaries of the disputed land and the parties' right to appeal. I find that criticism of the name of the land or the boundaries concerned is ill-founded. The learned Magistrate was quite clear which land he was dealing with and there is nothing in particular riding the fact that the land was called "Marope Land" in the judgment.

The learned Magistrate set out in full the case for all the claimants with reference to the claim itself and the evidence of the various witnesses.

In relation to findings of the Island Court, the learned Magistrate said that he had heard all the evidence and observed the behaviour and demeanour of the witnesses in deciding whether they had presented correct information and he set out the principle in Land Appeal case judgment No. 1 of 1986 Mala Family v Songoriki Family in relation to solving conflicts of traditional evidence as follows: -

"When there is a conflict in tradition, custom story about land, one side of the story must be right and the other side must be wrong. This does not mean that both parties are not honest in their belief, both may be honest in their belief, however in cases like this, the behaviour or the way in which evidence is given in court may help reach the truth. Therefore, the best way to test custom history or tradition is to refer back to the happenings of the recent years as presented in the evidence, and consider one of the history given in court which that would most probably be close to the truth."

The Island Court was also at pains to set out its full reasoning and its determinations of credibility and in my view carried out a proper process in arriving at who it found to be the true custom owners. The decisions reached were clearly available on the evidence and from the following of that process and, of course, it is difficult for a court on appeal to disturb findings of credibility because, as the learned Magistrate said, he had had the opportunity of seeing and hearing the witnesses and making findings of credibility over the lengthy hearing. He gave a full, careful and logical decision in accordance with proper custom principles and criticism that he made no award, for example, in favour of Sope Family of Ifira, as they were not party to a claim but witnesses to the Ifira community claim is without basis. The Court was correct at law because as a matter of principle no relief can be granted to someone who makes no claim.

It was argued that the judgment was inconsistent in that it granted customary rights of the blue land to Pastor George Kano when he was "the leader of the Land Claimant No. 2 - Naflak Teufi of Ifira " (see pg. 13 of the Judgment) and customary rights of the green land to Pastor Pierre Nikara who was "the representative of Nikara Family of Mele village whose claim is based on the name "Nikara Paunareo" (see pg. 20 of the Judgment). However, in accordance with the principles of custom, findings that those two were the true custom owners the Marope land was inevitable, because the custom landowner is "normally a chief" who "owns land on behalf of his people, who live and work on the land" (See pg. 35 item 1) Both George Kano and Pierre Nikara gave evidence as leaders of their Naflak or totem or family and could quite rightly be held to be true custom owners. George Kano claimed to be the true descendant of Chief Nareo who had been the owner of the disputed land. The Court accepted the evidence of the two axes as some relevant proof. Pierre Nikara claimed acquisition of the land through the patrilineal system based on birthright and inheritance. The Court accepted that. Even the leader of the Ifira Community accepted that Pierre Nikara had some interest in the land (See pg. 22). On the other hand the Sope Family of Ifira was always only a witness under the umbrella of the Ifira Community claim and there was very little in that claim to directly substantiate its rights to any great extent. I find there to be no inconsistency.

It was submitted by Mr. Malcolm that the Sope Family of Ifira had originally filed a claim and paid a fee but the evidence as to that was, as counsel conceded, somewhat sketchy and inconclusive and, in any event, the point was never taken in the Island Court.

As I have said the Island Court made specific findings of credibility and, despite the submissions that have been made as to why these findings should have been otherwise, I can find no reasons as to why those findings were against the weight of evidence or contrary to the customs of Vanuatu and in fact from my reading of the material there was no other reasonable conclusion that the learned Magistrate could have reached as to the ownership of the custom land in all the circumstances.

As to the submission that the decision in relation to the claim by the Ifira Community was unreasoned, simplistic and unsafe I find that to be, with the greatest respect, misconceived and inaccurate.

It was submitted that the Ifira Community claim was dismissed in a sentence or so at pg. 36 if the Judgment when the learned Magistrate said: -

"Therefore, the Court is not satisfied that Ifira Community is the true custom owner of Marope Land. There are a lot of people in the Ifira Community who belong to Ifira Community but don't have any customary rights to Marope Land."

Again, with the greatest respect, that submission is an oversimplification in itself. The learned Magistrate carefully analysed the Ifira Community claim over six and a half pages of the Judgment from pages 26 to 33 and the ultimate decision was set out in the three and a half paragraphs which preceded and included the above quotation. I find that that could never be held to be an unsafe and unreasoned decision and I hold that the conclusion was appropriate and available based, as it was, on a full analysis by the Court.

The rejection of the Family Kalsakau claim as to custom ownership of the land was likewise properly reached after a full and fair process. The learned Magistrate found that George Kaltoi Singari Kalsakau had failed to show any landmarks on the disputed land. The other witnesses for that claimant were in the same position. From my examination of the exhibits, including the family trees, it seems that the historical involvement of that family in the land came after the other claimants as to custom ownership and the Court was perfectly justified in dismissing its claim for custom ownership as it did in the first two paragraphs of page 37.

Furthermore, the finding of the Island Court in relation to the true custom owners was on the basis of appropriate analysis of the family trees and bloodlines upon which there was cross-examination at the hearing (See pg. 6 penultimate paragraph, pg. 11 paragraph 4, and pg. 14 penultimate paragraph)

Some criticism has been levelled at the veracity of the claim of Family Sope Imere because they were unsure of the actual boundary of the land and their boundary description changed during the hearing and they could not identify some land marks. It is clear that in the development of this particular land by European settlers from time to time, including even the construction of the airport, ancient land marks for determination of occupation such as "Nasara", "Stones", "Nambanga" or "Fruit Trees", which can be evidence of occupation, were obliterated. In this context it is not unexpected that members of the Sope Family were not really sure of some landmarks and boundaries of the land in question. In any event, this was taken into account by the learned Magistrate (see pg. 6 of the Judgment) who nevertheless accepted the claim.

It was also argued that no party had presented evidence of any custom rule to support the notion of orders being made to grant perpetual custom rights. However, the learned Magistrate was assisted by three Island Court justices knowledgeable in custom who were there to advise him as to custom matters and there is no principle of law which would prevent such assistance and/or advice being relied upon by the Court, even if the parties had not made the specific point.

It is also clear according to custom that those under the authority of the custom chief can have an interest or custom right which can be a perpetual right of occupying and using land owned by the custom chief. Groups of people such as families and Naflaks can be the holders of such interests even though those particular groups are not custom landowners. That concept was clearly recognised by the Island Court in its decision, and that is not, in my view, contrary to custom. The fact that the Island Court recognised and gave a legal basis in its decision for such holdings cannot be contrary to custom or law and the Island Court decision has made those findings and orders on a proper logical and careful basis. The orders are simply a legal recognition of properly established custom rights and usages.

Criticism had been levelled at the decision on the basis that the findings that certain families and Naflaks were given the same rights over the same land was causing confusion and dispute. However, the Court quite properly anticipated resolution of such difficulties in its judgment when it provided at item 7 on page 41: - 

"Perpetual right to occupy, use or enjoy the land and the other entitlement of the land is to be exercised and enforced under the control and direction of the custom land owner."

It is totally in accordance with custom that it is chief or custom land owner who owns the boundary of the land and who is entitled to make determinations over which particular portion of the land, any particular group is able to exercise its perpetual right.

In addition, the Court recognised that, should there be any difficulty with clarifying the rights issuing from the judgment, application could be made to the Island Court to clarify such right. It is my view that that is a course which should be sparingly invoked because it is important that custom landowners and those who have rights under his ownership should endeavour to resolve their own difficulties within the bounds of custom without recourse to the Courts. Such is important for the self-determination of all groups within this Republic.

Necessarily there must be goodwill between competing groups and such goodwill ought to be exercised on the basis of the philosophy of Chief Roymata who created Naflaks or peace ceremonies where under groups could attain peace and unity and discuss and resolve such disputes. Of course such discussion as a matter of custom can never undermine the ultimate power of the actual custom landowner. 

I can do little more in that regard than to echo the words of Justice R.K. Kent in the case of Noel v Toto CC18 of 1994 (Luganville Santo) when he said: -

"As to the management of the land, I think that the parties should quickly make their peace with one another. It may be that that will involve some custom arrangement between them. I think that all parties should act reasonably with respect to this matter, so that any problems as to future management can be avoided. The parties have indicated that they have some proposals for the future and I trust that they can reach agreement. By them all working together in a spirit of co-operation, they will all benefit and derive full satisfaction from their custom land."

Under the Constitution itself, as the Island Court recognised, Article 73 provides that all land in the Republic belongs to the indigenous custom owners and their descendants who, under Article 75, shall have perpetual ownership of their land and under Article 74 the rules of custom shall form the basis of ownership and use of land in the Republic of Vanuatu. The decision in the Island Court is in accordance with that.

I do not agree that the decision was an attempt to appease all parties and clarified nothing. To the contrary, it was a well-balanced, carefully researched, logical and balanced result flowing from the evidence after appropriate findings in relation to credibility on the basis of properly admitted evidence.

CONCLUSION

Every ground of appeal is dismissed. It follows that the decision of the Island Court as set out above must stand.

I will hear the parties on the question of costs.

Dated AT PORT VILA, this 19th day of December 2003

BY THE COURT

P. I. TRESTON
Judge