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Talaka v Nimal [2005] VUIC 7; Civil Case 030 of 2005 (14 September 2005)

IN THE MALEKULA ISLAND COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 30 of 2005

BETWEEN

THOMAS TALAKA
Complainant

AND

KAMIA NIMAL
1^st Defendant

AND

KELPEN SILAS
2^nd Defendant

MATTER: CLAIM CUSTOM PROPERTY - COCONUT PLANTATION

Coram: Justices-Mr. Fredrick David
Mr. Endy Shem
Mr. Johnsen Selwyn

Clerk: Wendy Raptigh

JUDGMENT

The issue before this Court is to determine the custom ownership of a coconut plantation situated at Matanvat, North West part of Malekula. The plantation in question was in the past until the present occupied by the Nimal family (the 1^st defendant) through some past relationship of their great grand parents. However, the complainant claims that he is the only surviving relative left and has the right to the property through adoption.

The deceased owner of the plantation was Isik. Isik had no surviving bloodline. The complainant and defendant are related through extended families.

Given the brief background, we will now look at the parties' evidence.

Evidence:

Thomas Talaka (the complainant) in his claim provided that the basis for his claim is through adoption. Isik adopted Steven. In 1945 Steven took a wife - Fanny. Isik pay the bride price.

During their stay, Isik, Steven and Fanny planted the coconut plantations now in dispute. There were two coconut plantations, one in Senwuru and one in Leledoroa. When the coconuts were mature, Isik started making copra. Isik used the plantation died he gave the right of use to Steven. Steven continued until before he died gave the right to his son Nicholson.

One day Nimal (Kamia's father) came and asked Nicholson if he could use the coconut plantation for copra. Nicholson agreed on condition that after Nimal's dead the plantation shall return back to him (Nicholson). Nimal was quite old that time and not strong to work, so he asked Nicholson to cut copra for him in order to pay for food, soap, kerosene and other things.

Two witnesses appeared on his behalf. Witness 1, Ps Louis Ross stated that Steven and Isik allowed them to live and use the place. Isik adopted Steven and pay pride price for fanny to become Steven's wife. Nicholson is Steven and Fanny's only child. The coconut he stated that Isik planted some, Steven and Fanny planted some. He further stated that Nimal (Kami's father) is from Emilwan. He came down to Masak (Issac's place) often to see Issac's father. Issac's father is a widow, and through their agreement Nimal gave one of his wives to Isik's father, since he had two wives.

On cross examination about the adoption, he admitted he knew about the adoption of James. He argued that the proof was when Isik was sick till death and burial only Steven took care of him.

Witness 2, Fani Steven stated that Isik came for her, paid pride price for her to become Steven's wife. To add she mentions how Isik had anointed Nicholson to be the next kin to take over Issac's property.

On cross examination, she re-emphasized that Isik adopted Steven. Steven was the only person caring for Isik until death.

The defendant, Kelpen Silas spoke on behalf of the two defendants. He stated that Kamia is his brother, Nimal, Kamia's father adopted him. The basis upon which he claims the plantation is through Nimal and Isik's friendship. Nimal is from the Matanvat inland, Nemelwan, Isik is from Malsak, Matanvat sea coast. In history the people of Malsak and Nemelwan worship the same god at Nemelwan. Kelpen stated that since they all worship the same one god at Nemelwan, uses the same custom, good relationships, this is seemly to say they are one people. For these reasons they believe they own the coconut plantation after Isik died.

Kelpen re-confirm that Steven took care of Isik until his death and burial but that does not mean he own the coconut plantations. They, the Nimal's own the coconut plantation.

Kelpen had object to the adoption of Steven. In 1941 it was cannibalism time in big nambas. Most people came for safety to Matanvat. During that period Steven came to Matanvat. Isik pay for Steven's wife (fanny) only because Steven lives with Isik - but that does not mean Steven should own the plantation.

Steven and Fanny after living together for some time separated due to some reasons unknown. Kelpen stated that the pride price was refunded back and they went their separate life. Further more as stated the coconuts were planted by Isik, not Fanny neither Steven. After Isaac died Nimal was the first ever person to live and work the coconut plantation. There were not agreements of who was to take the plantation, but due to their past relationship - Nimal and Isaac, that is why the Nimals moved in.

On cross examination, it is noted that the people from Malsak are slaves to the people of Nemelwan. They worship their god together at Nemelwan but live two different boundaries. He went on to argue that Fanny and Steven planted no coconut tree.

Two witnesses were called to present evidence in his favour. Witness 1, Elison Silas, his statement was not of great assistance as it only gives confirmation to Kelpen's statement on Nimal working the coconut plantation. Witness 2, Kensi Jockay statement notes generally that Nicholson did not plant any coconut. Isaac planted the coconut plantation and gave the right of use to Nimal. After Nimal died Kamia came in to continue working

On cross examination it is noted that witness 2 refused to say his age. When asked if he had seen Isik he said "yes".

Custom:

The custom of this Island pertaining ownership of a property is through patrilineal system. The matrilineal system would only triumph supposed there is not surviving male of the bloodline. Adoption in our case is an acceptance to live under the guardianship of another family. This acceptance extends to the right to use the property. Adoption is usually performed through a custom ceremony and being witnessed.

A further issue that raises question is whether the man caring for the sick until death, is entitled to his properties after death. Yes, when there is no surviving bloodline. It is a common practice that after burial of the deceased, any surviving blood or close tribe should come forth to perform a ceremony to show gratitude and thanks to the caretaker. Otherwise what properties left should be given to the caretaker as a payment for the good works he/she had done faithfully.

Findings:

The issue here is whether Nimal is the right person in custom to be working the property?

Thomas Talaka stated that basis for his claim is through adoption. Despise the fact that there was no witness, the evidences to support that are:

1. the fact that Isik paid Fanny's bride price

2. that Steven was with Isik in good times, in times of sickness to death and did his burial.

Who can ever take that responsibility Steven took except for a very close relative to heart. On cross examination Kelpen submit when asked "Taem Isik istap sik blong ded, Nimal istap wea?" his answer was "long Matanvat". One question raised here was if they had had a good relationship, why Nimal or his son didn't go to visit Isik.

Two witnesses appeared on Thomas's behalf. They both confirm that Isik paid Fanny's bride price and that Steven was the person beside Isik during his sickness to death and his burial.

The defendant, Kelpen Silas claims reasoning to the relationship the two villages had, Malsak and Nemelwan. That relationship leads to Nimal and Isaac's friendship. When cross examination he admits the bride price payment and Steven's faithfulness to Isik until death but object against the adoption.

In the analysis of his evidence, it is obvious that the defendant neither his tribes came forth to perform a ceremony to show their gratitude to Steven for all he has a valid point in accordance with the custom in terms of an adoption ceremony. It is noted that on cross examination when asked "Fanny mo Steven ino planem kokonas whu iluk", he answered "bae witness ikam". Witness 1 did not answer that and neither witness 2, Witness 2 was talking about Nicholson not Fanny and Steven.

Moreover, on cross examination when asked why Isik pay pride price, he answered "from se Steven ikam wok wetem Isik mekem nao Isik ipem woman blong hem". He contradicted himself, when asked if Steven planted some coconut or worked the plantation has answer was "No".

Furthermore in analyzing, Kelpen in his statement stated that "Ino gat eni agriment blong talem se oli givim coconas long whu ia. Isik igivim coconas ia long Nimal follem relationship blong bifo nomo be ineva gat wan agriment se coconas iblong whu".

Witness 2 at the stage of examination his status was very much disputed for example when question how old he was he refused to answer. In that case one cannot proof if he was there during Isik's time or not. He looks young and Isik's time is in the 1940s.

In consideration to the defendant's position to claim, the common practice discussed will be applied. That is to say Steven's faithfulness to Isaac during times of sicknesses until death and the burial was not in any way appreciated by the Nimal family before taking over the property. Based on this fact his claim must fall.

Conclusions:

Given the evidence place before this Court on the common practice in custom, it is hereby adjudged that:

1. the defendant is ordered to return immediately to the plaintiff the said coconut plantation.

2. the defendant is ordered to pay to the plaintiff the sum of VT18, 000 as costs and expenses on the plaintiff's claim.

3. payment should be done on or before 31^st October, 2005

Dated at Lakatoro, this 14^th September, 2005.

JASTIS FREDERICK WILLIAM

JASTIS ENDY SHEM

JASTIS JOHNSEN FRASER