Nmak v Tenene [2003] VUCA 25; Civil Appeal Case 16 of 2003 (7 November 2003)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CIVIL APPEAL CASE No. 16 of 2003

BETWEEN:

KALMETABIL KALMET NMAK
Appellant

AND:

SUAL KALMARIE
First Respondent

AND:

CHIEF WAYA TENENE
Second Respondent

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice Daniel Fatiaki
Justice Patrick Treston
Justice Oliver Saksak

Counsels: Mr. Nigel Morrison for the appellant
Mr. John Malcolm for the first respondent
Mr. George Boar for the second respondent

Date of hearing: 4th November. 2003
Date of judgment: 4th November 2003

REASONS FOR JUDGMENT

This is an appeal against the judgment of Coventry J given on 25^th June 2003 when the learned Judge found that:

“the custom of Erakor has recognized that when there are competing and irreconcilable claims to the chiefly title from those of the blood line then an election can be held. This is consistent with what has happened in the past in Erakor. It is in keeping with the principles and aspirations of the Constitution of Vanuatu. It does not devalue custom. It enhances custom.”

The grounds of the appeal are:

1. There has been no recognition by custom of Erakor as purported by the learned Judge or at all;
   
2. An election as directed ordered by the learned Judge is not consistent with what has happened in the past;
   
3. The custom of Erakor is clear in respect to chiefly blood line and entitlement and custom would be devalued and not enhanced by introduction of an election as directed/ordered by the learned Judge.
   

The appeal is advanced on two further grounds as set out below:

There was no acceptance by the parties that Sual Kalmarie is also of the bloodline as stated by the learned Judge at paragraph 1 of page 5 of his judgment. The learned Judge placed significant reliance on the report of the meeting referred to the penultimate paragraph of page 2 of his decision but there was no opportunity to test the validity or strength of that report by the appellant before it was accepted by the learned Judge who thereafter reliance placed upon it.

The appellant seeks the following orders:

1. That the learned Judge orders that there be an election to resolve the dispute be quashed.
   
2. That the matter be returned to the Island Court to give the respondent parties an opportunity to present more and different evidence.
   

The claim arose out of disputes over the chiefly claims to Erakor village.

On 6 February 2002, the first respondent and his group chose the first respondent Sual Kalmarie to be the new Chief of Erakor Village. Other people in the Erakor Village were not happy and objected to it. On the same date, 6 February 2002, Chief Tenene filed a Writ of Summons in proceedings 20 of 2002 before the Supreme Court seeking the following relief:

1. The plaintiff issue chiefly claim to Erakor village in the Island Court.
   
2. Directions be issued to the Clerk of the Island Court to publish the said plaintiff’s chiefly claim and ask for any cross-claim from interested persons.
   
3. That pending the determination of the claims the plaintiff remains chief of Erakor village.
   
4. That a restraining order be issued against any person seeking to be the newly appointed chief of Erakor village.
   

On 27 June 2002, Coventry J referred the matter to the Island Court and requested a decision on the following 6 questions.

“(a) Is there any right in custom and Erakor to depose a current sitting Chief?

(b) If so, what is the right, the circumstances and the procedure?

(c) Who is entitled to be the new Chief and on what basis?

(d) What is the procedure for choosing of a new Chief?

(e) What is the practice or customary procedures in respect to Ordination of a new chief at Erakor Village?

(f) How and by what method do the parties determine the candidates to be put forward for the Ordination of a new chief?”

On 7^th August 2002, the Island Court issued its decision. That decision was subject to an appeal before the Magistrate’s Court.

On 7^th January 2003, the Magistrate’s Court issued its decision on appeal confirming the findings and decision of the Island Court.

The matter came again before the Supreme Court in Civil Case 203 of 2002, this time on appeal from the Magistrate’s Court. Coventry J found no grounds to disturb the Island Court’s findings upon the six questions. However, the Island Court had gone on to state its conclusion on further issues and found that Kalmetabil Nmak was the correct chief of Erakor.

Counsel for Wayane Tenene and Sual Kalmarie argued they should not have done so. They were only requested to answer the six questions, which were directed generally to the qualifications to the chiefly title and associated matter. They did not put forward argument on who the actual person should be. It was not part of any question.

The lawyer for Nmak agreed they had not been asked to go that far, but submitted they were entitled to do so. There was only one person who could be the chief on the evidence and the answers to the questions and that was Nmak. In any event disharmony and disunity had prevailed long enough. It was time for a conclusive decision.

Coventry J referred the matter then to a meeting in the nakamal to attempt to resolve the disputes in the light of the Island Court’s answers to the six questions. A large meeting did take place on 7 June 2003. It was chaired and guided by the President of the Malvatumauri, Paul Tahi, and an executive member was present and a record of the meeting was kept. No single person was accepted by all as chief. The case therefore returned to Court for further adjudication.

The records together with recommendation of the meeting were sent to the Supreme Court. The trial Judge found the Island Court was wrong to do more than answer the six questions. He then quashed those parts of the Island Court’s decision which went beyond answering the six questions. Further records showed that there was a strong opinion from dissenters and not everyone agreed that a dispute could be resolved by an election. The present appellant objected to an election. Coventry J received a report and drew conclusion from it. The Judge accepted the recommendation for an election to be held. His Honour then held as follows:

“In my judgment therefore the custom of Erakor has recognized that when there are competing and irreconcilable claims to the chiefly title from those of the bloodline then an election can be held. This is consistent with what has happened in the past in Erakor. It is in keeping with the principles and aspirations of the Constitution of Vanuatu. It does not devalue custom. It enhances custom.”

Accordingly His Honour issued order inter-alia that an Election should be held to resolve this dispute.

This Order is now subject to this appeal. We heard arguments and submissions from respective parties. We are of the view that there are fundamental flaws in the process of the hearing of this matter. Although the Supreme Court has jurisdiction to entertain such a claim, the appropriate forum for hearing the claim is the Island Courts. If the claim is filed in the Supreme Court and the parties request that the claim be heard and determined by the Supreme Court, the Judge must hear and determine the custom claim. If the parties agree, the Judge may transfer the claim entirely to the appropriate Island Court for hearing.

In the present case, after discussions with counsels the parties agreed to follow the following:

1. The parties agree that the matter to be sent back to the Island Court.

2. The parties agree to retain the answers to the six questions.
   
3. The Island Court shall make a determination as to whether holding of an election to choose a chief is part of the custom of Erakor village and all other outstanding issues which need to be decided in obtaining a new chief of Erakor village.
   
4. Chief Tenene remains the Chief of Erakor village until final determination of this matter and his assistant chief will also remain.
   

The appeal was accordingly allowed. The costs of this appeal and the court below are awarded in favour of the Appellant against the First and Second Respondents. They will pay the costs in the normal manner.

Dated at Port-Vila this 7^th Day of November 2003

BY THE COURT

Vincent LUNABEK
Chief Justice