In re Estate of Molivono [2007] VUCA 22; Civil Appeal Case 37 of 2007 (30 November 2007)

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

Civil Appeal Case No 37 of 2007

IN THE MATTER OF:
ESTATE OF LATE JOHN MOLIVONO

BETWEEN:

TOM JOE BOTLENG
and JOEL BOELULU JOE
Appellants

AND:

RACHEL VATURAL
and SONS
First Respondents

AND:

MATHEW DAE, EDWARDS SUMBE
and NELLY
Second Respondents

AND:

CHIEF MOLITALASIA
Third Respondent

AND:

PETER COLMAR
Fourth Respondent

AND:

JOEL BOEVILVIL
Fifth Respondent

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Hamlison Bulu
Justice Christopher Tuohy

Counsel: Mr Robert Sugden for the Appellants
Mr Felix Laumae for the Second Respondents
No appearances for other parties

Date of hearing: 26th November 2007
Date of judgment: 30th November 2007

JUDGMENT

This appeal against a decision of Justice Saksak delivered on 3rd August 2007 following a four day hearing in February and March of this year demonstrates that there are some fundamental misconceptions with regard to applications for administration of the estates of people who have died.

Because we are clearly of the view that the final conclusion reached by Justice Saksak cannot be challenged on this appeal, we do not enter into any detailed discussion of the particular facts of this case but merely underline some fundamental issues which may avoid wasteful and time consuming litigation of this sort in the future.

On 31st January 2006, the Appellants applied for letters of administration for the estate of John Molivono who died on 28 July 1983.

The Appellants are sons of Frank Joe who died on 10 February 1999.

They alleged in turn that their late father was an adopted child of the John Molivono.

They contended that because they were representative of their father’s estate, in that capacity they ought to be able to administer the estate of the late John Molivono on the basis that Frank Joe had entitlements to that estate.

What is clear beyond any question is that this litigation (and a variety of related proceedings both current and disposed off) are advanced because the late John Molivono was a custom owner of substantial tracts of land on the Island of Aore. Both the Appellants and those who made cross-applications for the right to administer the estate of John Molivono appear to have been under the misapprehension that the rights of a deceased person as a custom owner would be controlled or affected or at least influenced by those who were granted administration of his estate.

We can state the position simply and briefly.

In this Republic adults can make a will and leave all property which they personally own in accordance with that will. In this case John Molivono did make a will. Justice Cooke held that it was invalid. John Molivono therefore died intestate and in accordance with Queen’s Regulation 7 of 1972 an application could have been made for the administration of his estate. That is what is currently before the Court.

But the fundamental point is that either under a will, or under a grant of administration, what will be affected will only be property which belonged to the deceased person in his own right. It does not and never will deal with custom ownership of land. Articles 73 to 75 of the Constitution could not be more clear and unequivocal. Questions of succession to land in custom on the death of a custom owner will be determined in accordance with custom and in the appropriate place which will be an Island Court or a Land Tribunal. Neither a will nor a grant of administration determine the question as to who will succeed to custom land.

As we understand it in the present case the late John Molivono owned nothing of consequence which could be dealt with in accordance with the will if it had been valid, or under a grant of administration if it was now to be granted.

It seems that in a practical sense the time, energy, effort and money which has gone into this litigation has been totally pointless. You cannot read the sworn statements or the extensive cross-examination without being abundantly clear that all anyone was concerned about was to whom the custom land would belong in the future. But that will be determined according to custom and in the appropriate place which is an Island Court or a Land Tribunal.

The second point to be made about this litigation is that the granting of probate or administration does nothing to determine ultimate ownership of the personal property of the person who has died. Not only in this case but in others as well we have seen suggestions that the grant of the right to administer an estate meant there was a determination of what property was owned by the estate and also governed its future ownership. Obtaining probate or administration is placing on an individual an extraordinarily solemn duty. It is the duty first to call in and collect all the properties of the deceased person apart from any interest in custom land. Then, they must pay all the debts of the estate. Their solemn obligation is to ensure that what is left is distributed either in accordance with the terms of the will or in accordance with the rules laid down in Queen’s Regulations 7. It provides for the executor or administrator no rights of ownership or personal benefit.

A person who is granted probate or administration is answerable to the Court for the proper exercise of the obligation which he or she has chosen to take up.

Although in this case the Supreme Court Judge may have been concerned that there was not a sufficient inventory of the assets of the estate, we are not persuaded that such is a necessary pre-requisite to a grant. The Judge was correct in noting that question of custom ownership (which were the only assets) would need to be determined in the right place and not determined in proceedings before that Court.

When someone dies the first question must be whether any assets of that deceased person require to be administered by will or under a grant of administration. If the answer is yes an application must be made. Those carrying out this task must ensure that before there is any distribution of any realized assets the debts and obligations of the deceased person are identified and met.

If what belonged to the deceased involves questions of customary land ownership then an application should be made (if there is not complete agreement) to a Land Tribunal or Island Court for determination. What happens to rights to customary land will differ from place to place according to tradition and custom. But it will not be a matter which falls to be determined in accordance with rules which apply to personally owned assets other than custom land such as furniture, vehicles, bank accounts and registered leasehold titles.

On the state of the evidence which was available in this case the Judge was entirely correct to refuse to grant administration to anybody. If the matter is properly considered we rather suspect that in fact nobody wants a grant of administration because there would be nothing to administer under any grant obtained.

These parties (and others who have interest in these plots of land in Aore) need to be before the appropriate tribunal and have determinations made which are of relevance and utility.

A final point emerges from this litigation. It relates to issues of adoption which it is clear can arise in two ways within this Republic. There is an applicable English statute the Adoption Act (UK) 1958 which remains in force pursuant to Article 95(2) of the Constitution which enables the formal relationship of parent and child to be created by a specific mechanism under statute. If in that way, a formal order is made in proper form after proper hearing and with proper consent obtained then the parent and child relationship exists for almost all purposes, although perhaps not for the purposes of succession to custom land. We make no decision on that point.

Equally custom has long recognised the potential for adoption. A mere assertion that it has occurred is insufficient. There must be clear evidence that what occurred was in accordance with the custom of that place and its traditions and approaches. What may be a recognisable form of adoption on one island or in one village may be quite unacceptable and not worthy of recognition in another.

If in any legal proceeding there is to be an assertion that there has been an adoption according to custom, the Court or tribunal will require clear and unequivocal evidence from those who hold leadership positions in that area of custom as to what is required and what in fact occurred and that the appropriate recognition exists.

The appeal is dismissed. Costs were reserved in the Supreme Court. We make no order as to costs in respect of this appeal.

DATED at PORT-VILA this 30th day of November 2007

BY THE COURT

VINCENT LUNABEK CJ
BRUCE ROBERTSON J
JOHN VON DOUSSA J
HAMLISON BULU J
CHRISTOPHER TUOHY J