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In re land known as Botorvov-Delua, Nathan v Albert [2004] VUSC 29; Land Appeal Case 014 of 1993 (15 November 2004)

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

Land Appeal Case No. 14 of 1993

IN THE MATTER OF: A LAND APPEAL FROM THE MALEKULA ISLAND COURT IN RELATION TO LAND KNOWN AS BOTORVOV/DELUA ON THE ISLAND OF MALEKULA

BETWEEN:

CHIEF GEBION NATHAN
Appellant

AND:

FAINAH ALBERT
First Respondent

AND:

APIA REUBEN
Second Respondent

Coram: Hon. Justice P. I. Treston

Assessors: Chief Johnson Frazer
Chief Endi Shem

Counsel: Mr. Hakwa for the Appellant - Chief Gebion Nathan
Mr. Yawah for First Respondent - Fainah Albert
Mrs. Nari for Second Respondent - Apia Reuben

Date of Hearing: 10 November 2004
Date of Decision: 15 November 2004

JUDGMENT ON APPEAL

This case concerns a land dispute over land called Botorvov/Delua ("the land") located in the Northwest area of Malekula.

ISLAND COURT DECISION

The Island Court decision was delivered on 25 November 1993 at Lakatoro and the Court held that: -

"In respect of the big boundary/land it will be divided equally into two parts, Chief Gebion Nathan takes one part and Fainah Albert takes the other part."

The Court decided that those parties had rights in the land and it specified how the division into two parts would be made.

In relation to Apia Reuben, the Court directed that Fainah Albert must give a small piece of land to him which would be the same in size as Mempot and on that piece of land he could do any developments he had a mind to.

The Court concluded as follows: -

"As for Chief Gibeon Nathan, he is the big chief of Delua/Botorvov and everyone must respect him"

It is against that decision that the appellant has lodged this appeal and he claims that he should have been declared as the sole custom owner of the whole of the land.

The First Respondent filed no cross-appeal and, although the Second Respondent endeavour to do so, the Court held during a conference that he was unable to do so because he was out of time for the filing of any cross-appeal (see Kalsakau v Hong & ors [2004] VUCA 2; CAC 30 and 31 of 2003).

Both Respondents appeared to oppose the granting of the appeal.

GROUNDS OF APPEAL

The grounds of appeal were as follows: -

1. That the Island Court was wrong in law in holding that under the customary law applicable in Northwest Malekula, customary ownership of land passes to a female member of the clan or tribe even though there is still living a male member of the clan or tribe, namely, the appellant.
   
2. That there was no sufficient evidence to support the finding of the Island Court that either Chief Masingbu or John Kota had in fact and under customary law intended that customary ownership of the said land would pass otherwise than in accordance with the applicable customs and practices.
   
3. That the Island Court misdirected itself in holding -
   
   • (a) that the evidence given at trial by the appellant's witnesses, namely: Jeannette Shadrack and Noroline Lui were in themselves inconsistent;
     
   • (b) that the appellant did not follow customary practice in that he had given customary held land to the first respondent and his other cousin sisters;
     
   • (c) that the proper and correct customary land tenure system applicable in this area of Northwest Malekula, if accepted by the Court, would be contrary to the Constitution of the Republic of Vanuatu;
     
   • (d) that the Court should be concerned as to whether or not a particular customary land tenure system results in treating males as having more rights than females, or whether a particular customary land tenure system is oppressive, or whether a particular customary land tenure system is contrary to any written law
     
   • (e) that the ruling of the same Island Court in the case of Wilson Isaiah v Gregoire Salyor and others apply in that the facts of that case are completely different to the present case
     
4. That the Island Court erred in law in seeking and obtaining the advices of one Leslie independently, and after completion of the trial and hearing in this case, and without giving the Appellant the opportunity to cross-examine the said Leslie on the advices which he had given the Court.
   
5. That the findings of the Island Court in relation to the First Respondent was against the weight of the evidence.
   
6. That the judgment of the Island Court as to the customary ownership of part of the land by the First Respondent was wrong in law and ought to be set aside.
   

ARGUMENT BY FIRST RESPONDENT

The First Respondent argued that the Island Court decision should be upheld because although the land tenure followed down the male lineage, there was no surviving male and the chief had the right to give his property to his daughter. It was argued that a chief from another customary boundary or "Nasara" could not take over another tribe's customary land and it was the eldest bloodline daughter of Chief Masingbu who should take the land as custom owner.

The First Respondent confirmed that she was only claiming right to the Botorvov land and not the Delua land and that the two areas were different customary land with different boundaries. She indicated that she did not dispute the customary ownership of Delua land and has been prepared to forfeit her right to the part of the Botorvov land which was given to the Appellant in order to reach a compromise but now she sought the entire boundary of Botorvov land. However, it was conceded that she had not filed a cross-appeal as I have already noted.

The First Respondent agreed that according to Northwest Malekula custom chiefly hierarchy is passed down from generation to generation through the patrilineal blood line but that it would be different if there was no surviving male issue. She submitted that that her father, Chief Masingbu, had passed his rights to her on his death because there was no surviving male issue and she was the eldest daughter.

It was argued on behalf of the First Respondent that the appellant had not produced his family tree whereas she had and that her customary right should not simply be a usage right over the Botorvov land which she called Portorveir land.

The First Respondent argued that the decision should be upheld and that the Court was correct in referring to the rights of persons given by the Constitution as to the equal treatment of men and women and clearly there was discrimination between male and female children according to custom and that the Constitution should prevail where equal rights were not given to men and women under Article 5.

It was also argued that the boundary division set by the Court was not a true customary division.

ARGUMENT BY OF SECOND RESPONDENT

The Second Respondent supported the argument of the First Respondent and submitted that the judgment of the Court in giving the Second Respondent a small piece of land should stand.

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.

..."

Two assessors were 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.

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, the exhibits produced, and the grounds of appeal and has heard the helpful submissions made by the Appellant and the Respondents. 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

There was really no dispute between the parties that in Northwest Malekula the custom of land tenure follows the patriarchal line. Where a custom owner dies without male issue and land may be passed down through blood lines to an eldest daughter.

It is also clear that under Article 74 of the Constitution of the Republic of Vanuatu, the rules of custom shall form the basis of ownership and use of land in the Republic.

Bearing in mind those principles however, the Court in my view has fallen into error. The First Respondent filed no cross-appeal and the Court found on the basis of the evidence that it accepted the Appellant as the only surviving male issue of the land. The Court held that he had the right to the land on that basis. With the greatest respect, the case should have ended there because that was a finding according to custom. That finding was based on the evidence which the Learned Magistrate had heard and was based upon his observations of the bearing and the demeanour of the witnesses. That was a finding which I consider was not against the weight of evidence and on my reading of the materials there was no other reasonable conclusion that the learned Magistrate could have reached. It is difficult for an appellate court to overturn such a finding of credibility. Having considered the evidence I do not find that there was any contradiction between the Appellant's witnesses. In fact the First Respondent did not seek to overturn that finding in relation to the Delua part of the land.

However, after making that decision the Court then went off seemingly on an excursion of its own to find that the First Respondent should also have a share in the land based in part on the evidence of a man called Leslie whose evidence the Court described in this way: -

"To follow up on evidence that came before the Court, the Court, on its own initiative, saw and spoke with a man called Leslie".

The Court then proceeded to base its justification in giving the First Respondent a half share of the land in part upon the evidence of the man Leslie. However, a perusal of the learned Magistrate's very careful and full record of the hearing and the evidence and the cross-examination and re-examination does not disclose any reference to the man Leslie. Clearly, in the Courts own words, and on its own initiative it spoke to Leslie without giving to the parties, and in particular the Appellant, the opportunity of cross-examining the person or making submissions about him. It seems that the only time that the Appellant became aware of the existence of Leslie was when the decision was delivered. The Island Court clearly fell into error in obtaining the evidence in that way and in not allowing the other parties the right to test that evidence. The Court based a large part of its conclusion in awarding land to the First Respondent upon that evidence. That was clearly wrong. The Island Court should have disregarded that evidence and this Court does so.

In addition the Island Court having found that there was a surviving male issue for the land, then awarded half of it to a female, the First Respondent. It sought to justify its conclusion by reference to constitutional principles particularly those contained in Article 5 which provides as follows: -

"FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL

(1) The Republic of Vanuatu recognises, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health. -

• (a) life;
• (b) liberty;
• (c) security of the person;
• (d) protection of the law;
• (e) freedom from inhuman treatment and forced labour;
• (f) freedom of conscience and worship;
• (g) freedom of expression;
• (h) freedom of assembly and association
• (i) freedom of movement
• (j) protection for the privacy of the home and other property and from unjust deprivation of property;
• (k) equal treatment under the law or administrative action, except that no law shall be inconsistent with this sub-paragraph insofar as it makes provision for the special benefit, welfare, protection or advancement of females, children and young persons, member of under-privilege groups or inhabitants of less developed areas.
  

(2) Protection of the law shall include the following -

• (a) everyone charged with an offence shall have a fair hearing, within a reasonable time, by an independent and impartial court and be afforded a lawyer if it is a serious offence;
  

(b) everyone is presumed innocent until a court establishes his guilt according to law;

(c) everyone charged shall be informed promptly in a language to be used in the proceedings he shall be provided with an interpreter throughout the proceeding;

(d) if an accused does not understand the language to be used in the proceedings he shall be provided with an interpreter throughout the proceeding;

(e) a personal shall not be tried in his absence without his consent unless he makes it impossible for the court to proceed in his presence;

(f) no-one shall be convicted in respect of an act or omission which did not constitute an offence known to written or custom law at the time it was committed;

(g) no-one shall be punished with a greater penalty than that which exists at the time of the commission of the offence;

(h) no person who has been pardoned, or tried and convicted or acquitted, shall be tried again for the same offence or any other offence of which he could have been convicted at his trial."

The Court said as follows: -

"Again, the custom advanced by Gebion Nathan, if the Court accepts this it will contravene the Constitution which provides that everybody (male or female) in Vanuatu is equal under the law, but if the Court recognizes this custom, it will mean that the Court will create a division between men and women of Malekula, and that men will be higher than the women, even if the men do not have a genuine right of claim. The Constitution provides that a man will own land in Vanuatu in accordance with customary land tenure, but it does not provide for the situation if the custom is not fair or just and is harsh and oppressive. The law in some countries of the Pacific like that of Papua New Guinea states that custom will apply but will not apply if is in breach of the written laws of the country."

However, with the greatest respect, I consider that that approach was also in error. As I have already said Article 74 of the Constitution provides that the rules of custom shall form the basis of ownership and use of land in the Republic of Vanuatu. It is my view that other parts of the Constitution such as equality of males and females cannot override the effect of custom. After all, Article 95 (3) of the Constitution provides that customary law shall continue to have effect as part of the law of the Republic of Vanuatu. It is not subject to the legislation and other law but part of it. In my view the custom of Northwest Malekula as determined and as set out above does not conflict with the existing law and has equal effect and it was, in my view, wrong for the Island Court to hold that the First Respondent was a custom owner of land simply to recognise the equal rights of men and women. It was equally wrong to hold that the First Respondent was a custom owner because it was not proper that her father's name disappear in respect of the land (See paragraph 18 of the judgment). A finding that the First Respondent was custom land owner of half of the land was clearly inconsistent with its earlier finding that the appellant was the only surviving male issue of the land.

It was accepted by all the parties that Chief Masingbu died in 1959 and that Chief John Kota then looked after the land. That was referred to in paragraph 5 of the judgment. It seems, and again it is conceded as common ground that Chief Kota died in 1970 and after that the Appellant took over the land. The Court in paragraph 19 of the judgment said:-

"The custom that Gibeon Nathan followed was not put into practice by him because he gave land to Fainah and his cousin sisters."

The Court seemed to hold that against the Appellant but in fact that was clearly in line with his actual position and duty as custom owner. It is also significant in that time-line that the First Respondent did not immediately assert her right to custom ownership on the death of her father in 1959 but waited until the Island Court hearing in 1993. That was a period of some thirty four years, and she did not even assert her right when chief Kota died in 1970 some twenty three years earlier. The submission was that that was because there was no dispute but clearly it casts some doubt upon the credibility of the First Respondent and the veracity of her claim.

It became clear that regardless of the result of this appeal, the Appellant and the First Respondent did not dispute the award that the Island Court had made to Apia Reuben to rights over a small piece of land which would be the same in size as Mempot upon which he could do any development which he was minded to do. Thus Mr. Reuben's participation in the appeal was relatively minimal because the award made by the Island Court was going to be upheld regardless of the overall result of the appeal.

In all the circumstances, I find that the appeal must be allowed because the Court fell into contradiction and in error in the ways that I have described. The decision appeared to be a well meaning attempt to appease all parties and to address the disparity that custom might seem to create between males and females. The Court itself seemed to recognise that the decision was a compromise one when it said

"Long saed blong Jif Gebion Nathan I bikfala jif blong Delua/Botorvov mo everi wan imas respektem."

In my view that was a clear recognition by the Court that it regarded the Appellant as the overall custom owner despite its ultimate decision.

This is also not a case of deprivation of properly because clearly the First Respondent has continuing rights of use and occupation.

CONCLUSION

The appeal is allowed to the extent that the Appellant Chief Gebion Nathan, is declared to be the custom owner of the Delua/Botorvov land. As it seems from the evidence he has already done, he must recognise the rights of the First Respondent to use and occupation of some of the land and must comply with the Island Court's decision to give a small piece of land to Apia Reuben which would be the same size as mempot.

I award costs at the standard rate to the Appellant to be shared equally by the First and Second Respondents as agreed or as determined by the Court .

Dated AT PORT VILA, this 15^th day of November 2004

BY THE COURT

P. I. TRESTON
Judge