Nesiko Tribe v Family Kwanmare Tribe [2012] VUIC 7; Land Case 03 of 1995 (4 June 2012)

IN THE ISLAND COURT
REPUBLIC OF VANUATU
SITTING AT LENUS VILLAGE
TANNA ISLAND

LAND CASE 3 OF 1995
(Land matters)

BETWEEN:

NESIKO TRIBE
ORIGINAL CLAIMANT

AND:

FAMILY KWANMANE TRIBE
COUNTERCLAIMANT 1

AND:

NAMIP NASAK MAI
COUNTERCLAIMANT 2

AND:

ORIGINAL NOHALNIPINA TRIBE
COUNTERCLAIMANT 3

AND:

FAMILY KAPALU LEIVANGA
COUNTERCLAIMANT 4

AND:

FAMILY IAPIT
COUNTERCLAIMANT 5

AND:

FAMILY MUSU (TAFAN)
COUNTERCLAIMANT 6

AND:

FAMILY WEHIA IHOKUMAS (IERAPIA)
COUNTERCLAIMANT 7

AND:

NESIKO TRIBE
COUNTERCLAIMANT 8

AND:

FAMILY KAPALU MITA
COUNTERCLAIMANT 9

CORAM: Island Court Justices:
Chief SAMSON IERU
Mrs. TAMANU SAM
Chief JIPALO

Senior Magistrate: RITA BILL NAVITI

JUDGMENT

Background:

This land dispute was registered in or about 2nd February 1995. Public notice was sent out in around 6 March 1995. It read:

"TAFEA ISLAND COURT ibin receivim wan claim blong kraon we nem blong em IMASU, ples we TAFEA CO-OPERATIVE istap long hem West Tanna. Sapos any man iting se hem igat rait long kraon ia hemi gat 30 days blong kam lodgem claim blong hem long Kot (30 days period ia mbae hemi stat lo No 6 March 1995). Sapos yu wandem more information, mekem wan appointment blong kam lukim Court Clerk lo offis." Sign: Steve Felix, Island Court Clerk.

Counterclaims were filed in and appropriate fees paid from as earlier as 16 March 1995 and as later as 5 May 2012; yet none of the parties' files including that of the original claimant were ready for trial; for this unreasonable delay this court has rejected every applications for adjournment; but has been much flexible with the procedures.

The land:

The land is called IMASU situated close to LENAKEL "BLACK MAN TOWN" on the West of the island of Tanna.

The Land's boundaries:

In the North: A straight line from KALUAS (BANIAN TREE) from East down to KAPIAL APAM at the West;

In the South: KENGAVILING stone from East longing creek down to KARASE n the West;

In the East: A straight line joining KALUAS (BANIA TREE) on the North and KENGAVILING on the South

In the West: The sea-shore running from KAPIAL APAM from North longing the reef to KARASE in the South

Editors Note: Please refer to the attached PDF of the pay showing these boundaries of the land called IMASU.

Procedure:

Since 1995 and despite many instructions in writing and oral by the clerk requesting filing of proper pleadings, none of the parties made any attempt to have the file ready.

The Laws:

• Constitution of the Republic of Vanuatu,
  • Article 73-Land belong to custom owners- "All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants";
  • Article 74-Basis of ownership and use-"The rules of custom shall form the basis of ownership and used of land in the Republic of Vanuatu";
  • Article 75 -Perpetual ownership-"Only indigenous citizens of the Republic of Vanuatu who have acquired their land in accordance with a recognized system of land tenure shall have perpetual ownership of their land
  • Article 76-National land law- "Parliament after consultation with the National Council of Chiefs shall provide for the implementation of Articles 73, 74 and 75 in a national land law and may make difference categories of land, one of which shall be urban land.
• Island Court Cap. 167,
  • Section 2A-Magistrate to preside in certain land matters-"The Chief Justice shall nominate a magistrate who shall subject to the provision of this act have such powers, Functions and duties in respect of all Island Courts, as the Chief Justices may prescribes; (2) The Magistrate nominated under subject to (1) shall preside at every sitting of and Island Court, in all matters concerning disputes as to ownership of land;
  • Section 10- application of customary law-"Subject to the provision of this Act and 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 good order".
• Tanna custom laws established in court after a voir dire before the trial, as below:
  • Customary land is inherited through Patrilinial system, from father to son;
  • The exception to the above principle rule:
• KAMEP or Last surviving bloodline, (Woman can also inherit land where she is the only survivor);
• ADOPTION (adopted child in custom can inherit land)
• COMPENSATION (Land can be acquired through any kinds of compensation)
  
• Land tenure in Tanna:
  

The Customary boundaries of lands in Tanna began and supported by the well known custom story of "SEMUSEMU":

"SEMUSEMU" was a most feared devil who devoured every native on the island of Tanna. However a woman survived and mothered twin boys "KASASAW" and "KANIAPNIN" who were brave heroes that killed "SEMUSEMU" the devil.

They then cut "SEMUSEMU"'s body into pieces and drew them into various spaces within Tanna while called out the names of the main tribes. Main tribes would then exist where the piece of flesh felt. From there ALL the tribes' land boundary would principally run from one creek to another from North to South and down ward from the mountain to the sea.

The tribes were called in pairs to facilitate trade between themselves. Indeed tribes trade between themselves internally (internal trade between brother tribes) as well as externally (external trade) from a main tribe to another tribe across the creek. Those trades were established through custom network, the main of which were:

- " KOTAREN" down by the coastal area running from SOUTH to NORTH;
- "KOLOSAS"& MALKOMAS" leading from the sea cost to the mountains;
- 'MANULMERA" used by TUPUNIS;
- "KATAIKAS" up in land.

By "trade" this Judgment means swapping of women for inter-marriages; and exchange of goods (for example the people from the sea-coast would exchange sea food (turtle, fish, sea shell, salt water...etc) against other food such as banana, taro, yam, namabe..etc) from people in land.

Customary ownership of Land depends on Custom hierarchy.

Custom hierarchy is recognized by the well known "Toka" dance; (the highest ceremony in custom). Each Tribe is guided and controlled by a sense of respect to that "Toka" which is considered as superior seal over all their cultural activities. A nakamal would gain superiority if its people would successfully host "TOKA" dance. In each Superior Nakamal there must be:

• One IEREMERA (paramount Chief);
• Assisted by an IENEE (a public relation officer & advisor to the paramount chief);
• The IEREMERA must possess a KWERIA (A crown made of Eagle's feathers). The preparation of KWERIA and TOKA DANCE is highly sacred from the initial stage up to its completion. The participation of the members of the surrounding tribes reinforces the existing and creates new custom relationships. It also maintains the cooperation and unity between its participants); and
• "TUPUNIS" (Supernatural powers vested in certain custom priests who would pray to their different custom spirits for certain things to happen or for abundance in foods. Such things included: SUN, RAIN, YAM, BANANA, COCONUTS, ALL KINDS OF EATABLE FRUITS, FISH AND SEA SHELLS ...ETC.
  

Lands are controlled by IENEES on the advice of the respective IEREMERA. People are attached to lands by their many cultural activities; in such a way wherever sub-tribes are created new customary land boundaries are placed and the powers to control and manage the people within such newly created sub-tribes are delegated to the new IEREMERA and his IENEE by the principal IEREMERA and respective IENEE.

The IEREMERA and IENEE of the Sub-tribes' functions and responsibilities would include managing and controlling of the new Nakamal's land boundaries and daily life of its people. Minor decisions could be taken over social activities. However important issues are usually brought to the Superior Nakamal for consideration and approval.

The Sub-tribes should loyally serve and give allegiance to the principle tribe, whose duty is to allocate pieces of lands to them for farming, hunting or fishing and provide protection to the tribe's members. In custom this sub-tribe is called "TUPUNIS" or "KITCHEN".

The innovative history over lands is told through "SIP" translated in English as a period of time. The different "sips" were:

1. NEPROW = A PERIOD OF IGNORANCE WHERE PEACE REIGNED FOR MORE THAN 100 YEARS.
   
2. KAPOKOR = KNOWLEDGE INCREASE, PEOPLE NOW MOVE AROUND
   
3. NEMRUKWEN & KOWEMETA = A PERIOD OF TROUBLE, AND TRIBAL WAR; (they are two group of enemies in battle during tribal war).
   

As knowledge increase people started to set their own boundaries and protected it by all means. A dare trespasser would be instantly kill and ate. Alliance with either the NUMRUKWEN or KOWEMETA is important disputes over customary land matters, because it could guide the court to understand the origin of the particular dispute between the parties.

In Tanna, natives would primarily identify themselves as being a member of one or the other of these two main groupings. This identification might assist the court in showing whether in the ancient custom practices a particular group of people could have taken part in the TOKA DANCE or associated with or occupied the disputed land.

4. CHRISTIANITY = GOSPEL ARRIVED; and
   
5. INDEPENDENCE = From 1980 onward
   

When Gospel arrived, the members of Numrukwen and Kowiemeta socialized with each other and progressively moved to each other's camps and land; formed inter-marriages and lived peacefully together on a same motherland.

But it would seem that after independence, the social and economical life of the people changed and the application of Article 73 and 74 of the Constitution of Vanuatu, 1980 prompted the memories of the members of ancient "sip" (NUMRUKWEN & KOWIEMETA) causing a kind of "cold war" between the parties in this case over the motherland IRU.

INTRODUCTION:

Three applications during Pre-trial conference on 9 May 2012 were rejected.

1. Firstly, the objection to Justice JIPALO on the ground of implied bias. It was alleged that he was involved in this same dispute in custom meetings. This was proved to be wrong.
   
2. Secondly the objection to the Senior Magistrate on the ground that in custom women do not deal with land dispute and further that she is in carriage of civil cases over the Tafea Coop disputes. This allegation was discriminatory and ill-founded. The Senior Magistrate has not dealt with the dispute over Tafea Coop per se, but she has attempted to hear an application for setting aside of an interlocutory order made by the resident Magistrate. However the lawyers were absent and that particular application and the substantive case are still pending before the resident other Magistrate.
   
3. And thirdly an application to have this matter adjourned on the grounds that the year 2012 is the year of election so there would be a number of Political parties' congresses in Tanna in which some of the parties would be involved and in addition that the parties were not given enough time to file their respective pleadings.
   

The issues in this dispute are:

1. Whether the boundaries to a land runs from a creek to another Creek?
2. Whether each Nakamal has its own boundaries within the motherland?
3. What would be the different rules of inheritance in custom over customary ownership of lands? and
4. Whether the parties are custom owners?
   

Section 10 calls this court to 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 good order.

ORIGINAL CLAIMANT- NISIKO TRIBE

NISIKO TRIBE through family NALAU is claiming IMASU LAND under:

- The last surviving bloodline of TUPUSI through his daughter NASUAIU MERIAN (1);

- JACK YAVILU the son of IERU KAMSAMSA who was the old PUTUSI's brother; and

- IATA NOANOA father of JACK YAVILU

He is claiming the land IMASU on the basis that it belongs to his tribe "NISIKONE". His sketch map of IMASU is the boundaries of the land and the rights are attached to his direct ancestor TUPUSI 's Nakamal. Those rights flow from TUPUSI through TUPUSI RAISEN, the son of JACK YAVILU and NASUAIU MERIAN.

IMASU's mother land is ERU. ERU is a "TAN-YATU" (meaning it runs from the mountain down to the sea) without any creek crossing it down by the coastal area).

The disputed land belongs to the 2 NISIKO tribes:

• FIRST NISIKO led by TUPUSI; and
• SECOND NISIKO led by IERU KAMSAMSA, whose son (JACK IAVILU), fathered TUPUSI RAISEN in an incest relationship with NASUAIU MERIAN (1) (TUPUSI's twin daughter) then died in exile without another child. The said JACK IAVILU was residing at LOWKILKIL.
  

His generations sprout out of:

• One TUPUSI who fathered twin daughters NAUMERA 1 and NASUAIU MERIAN. TUPUSI's brother was IERU whose only son was JEK IAVILU. JEK IAVILU committed incest with his first cousin sister NASUAIU MERIAN (1) and fathered TUPUSI RAISEN.
  
  • TUPUSI RAISEN wedded WAP (daughter of IATA NOANOA) and fathered NALAU NALE and NIPIO NAUSIEN.
    
    • NALAU NALE wedded NUPOPO and fathered CHARLEY IARAPIA AFIL who married LOUHMAN and fathered
      
      • The current generation
        

NISIKO's brother tribe is NOHALNIPINA. They had both occupied the land IRU. Nisiko's Supreme Nakamal was LOCKURWER where a Toka dance was performed. LOCKURWER's IEREMERA was YEWAKITA and its IENEE was NALAU son of TUPUSI RAISEN.

The Original claimant is of the "NUMRUKWEN SIP".

The old Tupusi was placed on the disputed land on the approval of all the surrounding tribes in the middle of 1800s to protect and oppose any land dealings by traders.

COUNTERCLAIMANT ONE: FAMILY KWANMANE TRIBE

KWANMANE TRIBE is claiming a part of IMASU LAND under the custom law of patrilineal inheritance of IALIS husband of IARAPIA NIPIN.

He claims that the "KWANMANE" was the original tribe in this area and it owned the Supreme Nakamal called LOUNANIN. His ancestor IALIS started and reigned over the Supreme nakamal "LOUNANIN".

LOUNANIN oversaw 2 sub-tribes: KWANMAN TWAN & KWANMAN APEN. Their lands are situated one after the other from the mountains to the coastal areas.

He agrees with the Original claimant that the disputed land is situated within IRU land and that it is a TAN YATU but yet it overlaps on KWANMAN-APEN'S land.

Although "LOUNANIN"s land is situated on a "TAN-IP" (meaning a land that is separated by a creek from IRU); nonetheless it is not a "TAN-NPIS" (meaning his right over the land goes beyond the creek down to the sea) for a creek is not a custom boundary. His ancestors have used the salt water to craft many useful items and compose custom songs and dances to be presented during "Toka" dance.

This claimant's tribe originated from:

• IALIS MITA husband of IARAPIA NIPIN in 1712
  • IASU KOEI NAURA and KUME (1762) down to
    • IATI IAUETO and KUME (1862) down to
      • KOUT MITA and TUMAN MITA, (1912) further down to
        • NAKOU IASILTONIKO & NALMETA (1962)finally to
          • KOUT MITA and IELO (1962) TOM KOUT's father (2012).

There is a gap of 100 years missing from IATI IAUETO and KOUT MITA where the claimant mentioned a KIEL APHAM and a BOITA in his family tree alleging that KIEL has sold a land in the disputed area for a saucepan and shilling. He then produces the saucepan and shilling as evidences by a witness who is not related to him.

It was alleged that BOITA (KIEL's wife) has kept the mentioned items as evidence if ever any dispute arises in this area. But he had difficulty proving his relationship with the purported vendor KIEL APHAM. It would rather appear that KIEL APHAM husband of BOITA come from a different family within the KWANMANE TRIBE.

His Supreme Nakamal is LOUNANIN where a TOKA DANCE was performed. The IEREMERA was NAKOUT IASULTONIKO.

KWANMANE's brother tribe is IEMSINE. IEMSINE TRIBE's land is a "TAN-IP" a TAN-NPIS". Geographically these two lands were separated by a creek from the IRU land. Despite the fact that the main boundaries were set by KASASAU and KANIAPNIN; the IENEES may also set boundaries to facilitate custom trades. He traded with NOHALNIPINA TRIBE.

COURT FINDS THAT THIS PARTY COMES FROM LOUNANEN SUPREME NAKAMAL AND THE LAST SURVIVOR OF KWANMANE MIGHT BE IN AUSTRALIA.

COUNTERCLAIMANT TWO: NAMIP NASAIKMAE

NAMIP NASAIKMAE is claiming a part of IMASU LAND under the custom law of patrilineal inheritance of TAWAI WILIK.

He claims that NAMIP NASAIKMAE is the name of a tribe whose members settled and built a Nakamal on the disputed land. The name NASAIKMAE means "lamenting for good things that were missing in life such as tupunis (genies) for custom songs, rain, sun, yam, banana and fish. In custom those good things are acquired through "TUPUNIS". The TUPUNIS ' nakamals were situated at:

- LENPAKEL; (occupied by people who compose custom songs for the supreme nakamal)

• - LAPKIT; (occupied by people who deal with convicted people as to imprisoned them)
• - LOWMANUMAN,
• - LETAUS,
• - IMASU; and
• - ISUISUI.
  

This counterclaimant is claiming under TAWAI WILIK who is alleged to have reigned over the supreme Nakamal LENAMEUR with authority over the above 6 Tupunis.

TAWAI WILIK was of NASAIKMAE tribe and is believed to be the great IEREMERA of the Supreme Nakamal Lenameur. TAWAI WILIK's son, one KALWAS and his grandson one IARUEL SOKMAI would have sold a part of the disputed land in around 1894.

His family tree started with IARUEL NIMAU IASUL (1762)

• IARUEL NIMAU IASUL fathered
  • TAWAI WILIK the later fathered(1862)
    • JIMMY IARAPIA(1) (LATE 1800s) down to;
      • JIMMY IARAPIA (2)(1962) down (2) down to
        • TUMAN,
          • Down to the current generation

NASAIKMAE tribe is alone he has neither brother tribe nor sub-tribes. The Nasakmae's Supreme Nakamal is LENAMIR where a Toka dance was successfully hosted; but this claimant comes from a smaller nakamal.

He confirms that one of his ancestors was living with old TUPUSI (the Original Claimant) and that the relative of that ancestors placed TUPUSI on IMASU to safeguard the land from traders. His ancestors did not return to IMASU because they were scared of fierce violent warriors who had killed their people.

He confirms that TUPUSI was of NISIKO tribe on IMASU and that he had not intended to override the NISIKO's right over the land.
He further confirms that his ancestors were been compensated for their developments on a part of the disputed land of IMASU before they returned to their own land in 1956. The custom name of IMASU was LOUNATIMTWAN. IMASU is on KOWIEMETA's land.

NASAKMAE tribe is the second main tribe within IRU; some of its customary land boundary might not reach the sea-coast so it has the right to use the sea and the land down by the coastal area to practice their TUPUNIS.

COUNTERCLAIMANT 3 – ORIGINAL NOHALNIPINA TRIBE

ORIGINAL NOHALNIPINA TRIBE is claiming a part of IMASU LAND under the custom law of patrilineal inheritance of NAIU.

He claims his ancestors first discovered and settled on IRU and that his family are direct descendants of the First tribe of in IRU as he puts it "ORIGINAL NOHALNIPINA" and that they are the true custom owners of the land in dispute.

NOHALNIPINA'S brother tribe is NISIKO. These two tribes own lands within IRU. IRU is the mother land of IMASU and LETAUS. Many other tribes are currently occupying parts of the land within IRU. But the real owners would be NOHALNIPINA and NISIKO. Each tribe would have been allocated its own specific boundaries. The boundaries of IRU start from LOUNANIMRAPANG creek to LOUAWIA creek and runs from the sea coast into the mountains.

He continues to state that the inhabitants of IRU identify themselves as the people who ate a fish "Iru" that is found in the devil's stomach; so there should be no tribes in between them.

He traced his family back to:

• RANGI TIRU LE NIKO, ( 1712) down to
• NOUKOUT NALKINIKO (1762), down to
  • PIDHA IAPIN (1812), to
    • RANGI TIRU LE NIKO (2) ( 1862), to
      • NOUKOUT NALKINIKO (2) and PIDHA IAPIN (1912), to
        • WILLIE NARIPO and SANGO, NOUKOUT NALKINIKO and PIDHA IAPIN (1962) down to
          • this present generation

NAIU and his children were living at LENPAKEL which is the head or Supreme Nakamal of IRU. This claimants and their family members are living on the disputed land.

He explains that he is still practicing a very sacred custom prayer for special or "taboo drink" that would boost the erection in male during the TOKA DANCE period. This special drink is obtained from a stone called "LENUS" (VAGINA) found down by the sea, naturally shaped in the stone in the form of a vagina where water would flow out of it whenever he would perform the appropriate custom rituals. The water that flew out of the vagina would be sprinkle on 2 stones that are naturally shaped in form of penis, which were said to be the penis of the twin boys KASASAU and KANIAPNIN; then the mixture would be collected, mixed with coconut milk and rub on the body of the male dancers during a TOKA dance to attract young girls to them for sex. The sacred rituals, songs and prayers are jealously kept by the current spokesperson MANU IAIOFA

This ORIGINAL NOHALNIPINA tribe is in fact IRU TRIBE whose Surpreme Nakamal is LENPAKEL. This tribe was vested with the highest customary powers to oversee the Nakamals from the mountains to the sea on the south side of the motherland Iru. It is the original tribe that was divided into two sub-tribes: NISIKO and NOHALNIPINA.
However it may not, in custom override the rights of any of its subjects, because its ancestors have already agreed to the boundaries of the descending nakamals. It owes custom respect to its TUPUNIS' Nakamals such as LETAUS and IMASU.

COUNTERCLAIM 4 - FAMILY KAPALU LEIVANGA

KAPALU LEIVANGA is claiming a part of IMASU LAND under the custom law of patrilineal inheritance of his family's ancestor KAPALU LEVIANGA.

His story is that in the 1700s there were 3 young men called KAPALU, NIMAO and KALWAS were living at IMASU nakamal. They use to go on fishing trips. KAPALU decided to make a bow and arrow as fishing gears, for that reason his two friends called him LEVIANGA meaning "BOW and HARROW".

During most of their fishing trips they would notice a girl on the reef as well. KAPALU decided to meet the girl. As the girl had no name his two friends called her PARAIRE meaning "WOMAN OF THE SEA". She became KAPALU's wife.

The three men first settled at IMASU, they then moved in land to LENAMIR where NIMAO and KALWAS settled but KAPALU LEVIANGA moved further to LAPKIT where he made home. He then took PARAIRE to LAPKIT and fathered NIOUPO ITAUAR LAUKARIMIS, YAMACK ASUL, KAPALU NUL IANAIWAIU, KAHUA MARIK MERICK, NERU and KAWAS in the late 1700s.

• YAMAK ASUL wedded NAKO LASUATU and fathered
  • YAMAK APAM who married WASIKUM PEKI and fathered
    • LOHMAN TIUTIU TA LALEINE who married KAOUPA and fathered
      • KAPALU NUL and his brothers and sisters. KAPALU NUL fathered
        • KAPALU YOLOU and his brothers. KAPALU wedded TANGAP and fathered;
          • The parents of the current generation

KAPALU LEVIANGA's three sons (YAMAK ASUL, KAPALU NUL IAWAIU and KAHUA MERIK MERIK) participated in tribal war to defend NISIKO tribe. That fight involved all the main tribes in Tanna. YAMAK ASUL fought to the direction of white-grass while his two brothers fought to the opposite direction. Yamak Asul's brothers took their 2 sisters with them and left them at a village called LAUTAPUNGA at white sand.

After the war YAMAK ASUL was given the name YAMAK APAM because he fought for a long distance. On his way back he took NAKO LA SUATU (meaning woman of road).

After that war many different tribes settled at LAPTIK and other part of IRU land.

Then people started to take the lives of others through "NATIK" (witchcraft), causing division within KAPALU's nakamal. In the mean time the members of NUMRUKWEN remembered of the great warrioe YAMACK ASAUL APAM (1); for in their revenge they killed him, took his body to their village at IPINIAN and ate it there. His son YAMAK APAM(2) wedded WASIKEM PEKI and fathered LOHMAN TIUTIU.
His Nakamal is LAPKIT. The YEREMERA is KAPALU whose IENEE is KALWAS and TAKAM as Tupunis.

This family is of NISIKO tribe.

COUNTERCLAIMANT 5 - FAMILY IAPIT

This counterclaimant has written a letter to the clerk withdrawing his claim on personal reason on 9 May 2012 as the trial commenced. However the court has maintained the case and his chair in court remained empty. Three days later one of the relatives occupied the chair and progressively shows the party's involvement in the trial.

In his opening statement he informs the court that the withdrawal letter was filed by their spokesperson whose application for leave to attend to this matter was refused and they cannot find another spokesperson to assist. Had it not for the flexibility in which this trial has been conducted, his party would not have maintain their claim.

FAMILY IAPIT is claiming a part of IMASU LAND under the exception to the principal law of custom inheritance of last surviving bloodline of the family's ancestor one MAHOK. It is alleged that the KWANMANE TRIBE has been wiped out from this area. Still a woman named MAHOK carried the bloodline of KWANMAN down to the current generation. He is now relating his bloodline in the generation below:

MATIKTIK would have lived in this area in around 1700s. .

• MATIKTIK (1612) would have fathered NATIK IARAI
  • NATIK IARAI married IESIAU and fathered IAPUT IANKIR
    • IAPUT IANKIR and MAHOK (around 1662) and fathered MATIKTIK
      • MATIKTIK (2) wedded KOUPA and NATUMAN (1712).
        • IAPATI ANKIR (2) (1762) and KUME PARANPISIN. IAPUT IANKIR died childless. KUME PARANISIN married KIEL PAPAOK . KIEL PAPAOK died childless, KUME PARANPISIN was impregnated by one IAPUT TWAN and mothered
          • YAPUT TWAN (1812) who mothered

• NATIK (2) (1862) who married YAMEI and fathered

▪ IAPUT IANKIR (3) (1961) father of

▪ The current generation (1962)

The second Matiktik would have lived in this area in around 1712 and the latest NATIK in around 1862. There is mention of one NATIK taking part in a custom imposition of name "WHEIA" of KWANMANE tribe for the purpose of transferring right over this same piece of land by counterclaimant NAMIP IERAPIA in around 1961.

He claims that MATIKTIK's descendants would be the gateway for bush people to get to the coastal areas. Furthermore MATIKTIK would have been highly respected by the composer of custom songs and that without his consent composers would have difficulty memorizing new custom songs.

This family might be OF KWANMAN TRIBE on woman side.

COUNTERCLAIMANT 6 - FAMILY MUSU (NAMIP TAFAN)

The court has granted leave for this claimant to change the name of his party from NAMIP TAFAN (meaning "ancestors TAFAN") to FAMILY MUSU.

FAMILY MUSU is claiming a part of IMASU LAND under the exception to the custom law of inheritance of the last surviving bloodline of the family's ancestor KAWIA TUAN.

Like the above claimant, it is alleged that KWANMANE TRIBE bloodline of male has disappeared from this area but for KAWIA TUAN a woman of the KWANMAN TRIBE who was married to MUSU's family. That woman (KAWIA TUAN) would belong to a small nakamal called LOUMAC.

While it is true that KWANMANE TRIBE are living on a "TAN-IP" / "TAN-PIS"; the right of the people of KWANMANE TRIBE extends to the sea coast. The kwanmane tribe claim the right to the coastal area through a stone called "NAMTATIN" as well the names "KHOMANIKFAIKEN" and "MANIKRUATIKEN" which are places on area within the disputed land by the tribe's ancestors.

It is agreed that the disputed land is within the "TAN IRU" or land IRU and that the old people of IRU have always respected the KWANMANE tribe's right over lands from the bush to the coastal area.

In custom of Tanna creeks, mountains and rivers do not constitute land mark or land boundaries. Only IENEES (CUSTOM PUBLIC RELATION OFFICERS AND ADIVSORS TO A GREAT CHIEF "IEREMERA") would decided and placed land boundaries over custom lands. So in the past people of IRU were well aware that the land that runs from LOUAKPARAWAL to KWANMANE TRIBE's land in the bush belong to the KWANMANE TRIBE and the current claimant is descendant of KAWIA TUAN who survived.

This claimant's generation focuses on KAWIA TUAN down to this generation:

• MUSU and NIMA KOTEA in around 1812, to
  • KAWIA TUAN who wedded LAVA DARICK and mothered
    • IARAPIA LOUIAN, MOUK and DES. IARAPIA wedded KAPALU and mothered
      • KUME PRAIMALIM and NALMATA. NALMATA wedded NIMISA KILAPLAPEN and mothered
        • KATUAN who wedded TAFAN NAING and mothered
          • the current JOHNNY TAO and others

THIS FAMILY MIGHT BE OF KWANMAN TRIBE on woman side.

COUNTERCLAIMANT 7 - WHEIA IHOKUMAS (NAMIP IERAPIA)

WEHIA IHOKUMAS is claiming a part of IMASU LAND under the concept of "giving of a name that is attached to a land" . This concept may be referred to as a custom appointment to inherit the land.

He claims that in custom a name or a title is attached to a specific custom land and that the holder of that name would be the custom owner of the land. In this case the name would be WHEIA IHOKUMAS.

WHEIA IHOKUMAS is an important name attached to a land in KWANMANE TRIBE. He was the son of WHEIA LOUIAPATU of KWANMANE TRIBE and POITA of NAVILIANGE LESUATU TRIBE. WHEIA LOUIAPATU had a brother named NIMISA IHAUPAT. They were still very young when they lost their father. After the death of their father, their mother brought them back to her village at LOUAIHAU in IMANAVILIANG LESUATU where they were circumcised.

They then returned to KWANMANE where the village elders (NAKOU MUL ASUL, KASIKEN IARAPIA OUIFANGA and IENEE NAPUK IAKLEIAPEN) of KWANMANE placed WHEIA LOUIAPATU into LEKENGAVILING. The current coconut plantation at LEKENGAVILING were planted by the relatives of WHEIA LOUIAPTA on his mother's request during that time.

WHEIA LOUIAPATU's fornication with a prostitute residing in this area in that time would have changed the real name of the area of LOUTIKIVALE to LOUTONINTONING. WEHIA would have given his appointment to the prostitute every second day; thus the meaning of LOUTONINTONING meaning the day after tomorrow. This claimant is the current holder of the title WHEIA IHOKUMAS of KWANMANE TRIBE whose land is within LOUMAC village; and extended to the disputed area reaching the coastal line.

The current WHEIA IHOKUMAS' father was Chief Sam TUKAMA (1) IENEE of IARAPIA tribe from NARIAKENE, his mother was of IRU tribe from LAMLA . Her family was also was of a tribe of IENEE line.

He was born on 15 January 1951. At his birth his family intended to call him SAM NAKOU or SAM KUKI; they settled on SAM which name he continued to use today. when he was 11- 12 years old TAVO SARAUPET (NAMIP TAFAN), LAVA KARETFA II (Namip IARAPIA), NAPUK NASAK (Namip NAKET); SAM TUKAMA (the father), KIEL KANGA (Namip TAFAN), CHARLE IARAPIA (Namip IARAPIA), NATIK (KWANMANE), POITA MATUA (KWANMANE), PITA NUMAULUL ASUL (IRU), WILLIE IAU (NUHALNIPINA) and KAPALU IARUMANIP (NUHALNIPINA) held a big custom ceremony at LENMOUT nakamal and imposed the current name on him.

TAVO SARAUPET of Namip Tafan called out the name and stated that the land attached to this name runs from LEKENGAVILING down to the coastal area. However this party cannot manage or control the land because in 1987 one SAMAN IAPEN opposed to this claimant being officially registered as custom owner.

The name "WHEIA IHOKUMAS" might be attached to KWANMANE's tribal land.

COUNTERCLAIMANT 8 - NESIKO TRIBE

NISIKO tribe led by IATA KILIMAN is claiming a part of IMASU LAND under the custom law of patrilineal inheritance of his ancestor TUPUSI.

This claim challenges the Original Claimants on the boundaries of IMASU and TUPUSI's bloodline. This NISIKO TRIBE is claiming under a different TUPUSI.

This party says this TUPUSI is of the 'HIGH BLOOD" or direct male bloodline of NISIKO tribe, and that the Original claimant's boundaries have greatly overlap that of the NOHALNIPINA. While he agrees that IMASU's motherland is IRU on TAN-YATU; he submits that the NISIKO TRIBE's boundaries should only be one third of the sketch map produced by the Original claimant.

Both this claimant and the Original Claimant comes from the same tribe (NISIKO); growing up together in the same Nakamals. The spokesperson IATA KILMAN has assisted and actively supported the Original Claimant's family in many custom meetings over this same issue until lately on 4 May 2012, when he decided to file his own claim.

He traces his generation from IAMAK APAHM and his wife MOUK LIPIN in 1762 to

• IAMAK APHAM down to
  • NAKOU APEN who wedded TESS and fathered IARUEL NOUANATUA
    • AIRUEL NOUANATUA wedded NALINGHA and fathered IAMAK APHAM (2)
      • IAMAK APHAM (2) wedded TOILY KAUWA and fathered SELWYN IARUEL ISUA;
        • IARUEL ISUA wedded JENNY and fathered IARUEL ISUA (2), IAMAK APHAM (3) and IATA KILMA.
          

It is apparent from this claimant's attitude that his sole intention in filing this claim was to injure the Original Claimant's case. He would from time to time contradict himself on issues regarding his relationship with the Original Claimant.

For example: he said that he had filed his statement of claim on 4 May 2012 because he found out that the original claimant was claiming on bloodline of woman whereas he is "High Blood"; yet on other occasion he would reply that he change because "Hemi no includim family blong me lo family tree blong hem" meaning he did not include my family tree in his family tree.

He presented a family tree of "RIGHT TUPUSI" as follows:

• TUPUSI and TELUA bore IAWAKIHTA MTAL, TUPUSI, EIPIA, IAMARK, IATA NAHWIA;
  • TUPUSI wedded LOUGHMAN WIKAS and fathered NASUAEIU, IAUNAM, MATAL and NOUMIRA;
    • IAUMAN wedded NASUAEIU BECKY and fathered IATA KAWIA, SONG and NAKOU TELUA;
      • SONG wedded NAMIAKIS and fathered NASUAIU MERIAN KAWIEL, IERAPIA, HIWA and IAWILU;
        • KAWIEL wedded RACHEAL and fathered the current generation.
          

The ground for filing this claim was to show that it had the "HIGH BLOOD" of Nisiko and he should be declared the customary owner of the sketch mapped land within the disputed land on the ground that the original claimant's bloodline line falls short of "HIGH BLOOD" meaning "Male's bloodline"

However he says that this TUPUSI is not the same as the Original Claimant's; Yet both TUPUSI were part of the same tribe and acquainted with the same IATA KILMAN.

It transpired from the evidence adduced that this TUPUSI was named after the Original Claimant's TUPUSI to inherit the same land. Because there were not any male bloodline left.

Not only was the party unable to link the bloodline either of male or female of current claimants to the "TUPUSI" of the original claimant, but his evidences was also tainted by the fact that:

1. IATA KILMAN's father was brought up by the Original claimant's ancestor TUPUSI who had treated him like his own son;
   
2. The spokesperson IATA KILMAN has always been with the original claimant's family and has been serving as "secretary" and stood by the original claimant's father to many custom meetings over this issue.
   
3. The claim was filed when the original claimant advised IATA KILMAN that the best way to proceed with their claim is to claim on his ancestor TUPUSI's family tree;
   
4. One of his witnesses was declared incompetent, because he refuses to answer crucial questions posed by the brothers/cousins of his late father on cross examination. The witness was 21 years and lost his father when he was very young. In custom such attitude is condemned as it brings disrespect and disgrace to the elders and the Chiefs.
   
5. The claimant TUPUSI KAWIA, in his closing remarks, informs the court that he hesitantly flew over on request from Vila and that he was scared of being injured over this land issue, because he is the only right person to own this land;
   
6. The attitude of the spokesperson was improper and his comments to the witness for the ninth counterclaimant (KAPALU MITA) after his last cross examination question was a mockery to everyone, when he said: "me movum mark ikam ia finis...Yu wandem me movum igo over here bakeken"? This means I have already reduced my boundaries do you want me to increase it again..?. While the courtroom loudly laughs at his comment, he walked out of the court satisfied.
   
7. His introduction was of the same copy of the introduction filed by the counterclaimant three "ORIGINAL NOHALNIPINA".
   

NISIKO's brother tribe is NOHALNIPINA. Its Supreme Nakamal was LOUKULIWAR managed by IEREMERA IAWAK KITA whose IENEE was KAIOTUAN of Loutahlkamulal village.

The court is not convinces that he is the "HIGH" bloodline of NISIKO tribe.

COUNTERCLAIMANT 9 – KAPALU MITA
KAPALU MITA is claiming a part of IMASU LAND under both exception to the custom law of inheritance and the adoption of IAU NIVEN to head the LETAUS Nakamal and surviving bloodline of LOUMAN HUKAS.

He claims that KAPALU MITA is the great chief (IEREMERA) of LETAUS NAKAMAL. LETAUS NAKAMAL is the principal Nakamal of all the TUPUNIS of the Superior Nakamal. LETAUS is where tribe of NOHALNIPINA are living and their Nakamal is called "LOWMANUMAN". It is under LENPAKEL supreme Nakamal of the land IRU.

He recounts the famous legend of the lands drinking kava:

"Long long time ago, before men populated the lands, the lands in this area were having a party of "KAVA DRINKING" and they all decided that after the Kava, they would all go down by the sea. The lands concerned in the area of dispute were TAN LAVINU, TAN IEPA, TAN IRU, TAN IMAEMSINE, TAN IP, TAN IMNARIAKINE, TAN LOUIA, TAN LETAKREN and TAN LOUINIO. As they were still drinking kava, TAN IRU pretended to be drunk of Kava and left without informing the others. When the other land finally noticed TAN IRU's absence, they started to look for it. They saw it waking in zigzag down by the hill down to the coastal area. Being drunk with Kava, they decided to let it go. They said: Let it go empty, it will not have all the good things that we are enjoying now. We will keep them all" . And it was so. The moral of the story is that all land which stayed behind became "TAN PIS" meaning it does not extend to the coastal area".

He agreed that ERU is the motherland of IMASU and LETAUS and that there is no natural mark or feature that separated them from each another. The disputed land is geographically situated under LETAUS LAND down by the coastal area. LETAUS LAND belongs to old KAPALU MITA who adopted IAU NIVEN or WILLY IAU.

He traces his family tree back to one KAPALU MITA (1) the son of IESUL KALIP and LOUMAN HUKAS. LOUMAN HUKAS is said to be the fourth generation and the last bloodline of the original KAPALU MITA:

• LOUMAS HUKAS wedded IESUL KALIPA and mothered KALAPU (1);
• KAPALU MITA (1) wedded TAKUM but they were childless so they adopted IAU NIVEN from LAPKIT which is KAPALU's "NIMATAN" (neighbor). KAPALU MITA chief of LETAUS requested to adopt a child from the chief of LAPKIT for the purpose of inheriting and maintaining KAPALU MITA's powers to continue carrying out his custom duties and functions. The chief of LAPKIT approached IATA TEPI NAWANWAN and his wife TOUATA for a child; then IAU NIVEN was considered and approved for adoption by KAPALU MITA.
• IAU NIVEN wedded WASIKAM and fathered KAPALU MITA (2)
  

KAPALU MITA is of NOHALNIPINA'S TRIBE is brother tribe of NISIKO of the original claimant.

FINDINGS:

After hearing all the evidences the court finds that:

1. The area around TAFEA COOP is heavily disputed. Nine of the claimants' sketch map overlapped the area running East to West from the LOUANIMRAPANG CREEK at "KENGAVILING" and running down south to the reef at either: LAWAKPARAWAL, LAPLA or LOUAISUAREHWITIKIN."
   
2. The court has identified members of three main tribes amongst the disputing parties. tribe IRU; NASAKMAE TRIBE and KWANMANE TRIBE;
   
3. NASAKMAE TRIBE AND IRU TRIBE are sharing the TAN IRU. Their Supreme Nakamals were LENAMIR for the NASAKMAE tribe situated on North side of the disputed area and LENPAKEL for the IRU tribe at the South side.
   
4. TRIBE IRU has two SUB-TRIBES: there are NISIKO and NOHALNIPINA. Both sub-tribes are TUPUNIS of IRU TRIBE at LENPAKEL.
   
5. The claim affects a very small part at the coastal area which is jointly owned by IRU TRIBE and its two sub-tribes NISIKO and NOHALNIPINA. The boundaries of LENAMIR is slightly affected by this dispute.(see Map)
   
6. In accordance with custom practices the lands would be naturally positioned in such a way that facilitates custom trade. For this custom wisdom is materialized by the geographical features of the lands in this area where evidence shows that IRU TRIBE, NISIKO TRIBE and NOHALNIPINA TRIBE were managing, controlling and residing on IRU. TAN IRU is TAN-IATU. Likewise KWANMANE and his brother tribe IEMSINE are locate in land separated by another creek from the IRU land as such they are called in custom TAN-PIS.
   
7. The KWANMANE and the NASAKMAE TRIBE need access to the coastal area for their many needs. For that access they have to have an easement. In custom that easement might not be a narrow road as it is commonly known; but a narrow plot of land where TAN-PIS people may build themselves huts to be used for hiding certain custom materials for Toka Dance, a women taboo houses during menstruation period, a simple nakamal for men to meet or just a resting place. Those practices may lead to mis-understanding and be a ground for a custom land claim.
   
8. Custom laws and rules dictate that people are attached to their Supreme Nakamals where reigns their Paramount chief called IEREMERA assisted by IENEE and receives allegiance in form of foods from his TUPUNIS who are in most cases their own subjects. IENEE assist IEREMERA to allocated lands to his TUPUNIS and/or subjects.
   
9. The court is also guided by the NIKO LE TEN KASTOM LAW BLONG TANNA article 1.G provides: "Taniatu mo Tanpis tufalla tuketa ikat rait long solwara long rili mo stret history blong line Kastom. Every man long bush oli gat rait long solwora...
   
10. The court places below the claimants in their respective tribes and sub-tribes:
    

1. IRU TRIBE: ORIGINAL NOHALNIPINA (DESCENDANTS OF NAIU-counterclaimant 3)
   
   1. NOHALNIPINA TRIBE: FAMILY KAPALU MITA (Counterclaimant 9);
   2. NISIKO TRIBE: NISIKO TRIBE (DESCENDANTS OF TUPUSI- Original claimant), and KAPALU LEVIANGA (counterclaimant 4)
      
2. NASAKMAE: NASAKMAE TRIBE (counterclaimant 2)
   

100. KWANMANE TRIBE: KWANMANE TRIBE (Counterclaimant 1)

FAMILY IAPIT (Counterclaimant 5) on woman side

FAMILY MUSU (Counterclaimant 6) on woman side, and

FAMILY WHIEA IHOKUMAS (Counterclaimant 7) on woman side.

The answers to the issues raised are:

1. Whether the boundaries to a land runs from a creek to another Creek? YES!
2. Whether each Nakamal has its own boundaries within the motherland? YES!
3. What would be the different rules of inheritance in custom over customary ownership of lands:
   1. PATRILINEAL INHERITANCE (FATHER TO SON)
   2. SURVIVING BLOODLINE THROUGH WOMEN, and
   100. ADOPTION.
4. Whether the parties are custom owners
   

ORIGINAL CLAIMANT:

The members of NISIKO TRIBE under the original claimant are Custom owners of the land in PURPLE color from the "hidden treasure" to ISUA NAPITAN CREEK.

COUNTERCLAIMANT 1 KWANMANE TRIBE:

KWANMANE TRIBE under TOM KAUT retains it people's right of access to the coastal areas. They have to re-negotiate their occupation if any, on any plots of land should they wish to remain. That negotiation must be made with the IRU TRIBE (Original Nohalnipina), NOHALPNIPINA TRIBE (Kapalu Mita) and NISIKO TRIBE (led by Original claimant).

COUNTERCLAIMANT: 2 NASAKMAE:

The members of NASAKMAE under the counterclaimant 2 are owners of lands in RED from the "hidden treasure to the end of the disputed boundary at KAPIANL APAM. They have to re-negotiate their occupation, if any over any plot of lands within the declared boundaries of the Original Claimant. This negotiation must be made with NISIKO TRIBE led by the Original Claimant.

COUNTERCLAIMANT 3 ORIGINAL NOHALNIPINA

The TRIBE IRU is the head tribe or Principal tribe over NOHALNIPINA and NISIKO tribes. The members of IRU TRIBE are joint owners of the land within the land in ORANGE with its sub-tribes NOHALNIPINA (KAPALU MITA).

COUNTERCLAIMANT 4- KAPALU LEVIANGA

The Descendants of KAPALU LEVIANGA are s owners of the land in yellow a IWAK's house up over the old Lenakel Aiport to the disputed boundary mark.

COUNTERCLAIMANT 5 – FAMILY IAPIT

FAMILY IAPIT'S rights are attached to KWANMAN TRIBE through MAHOK (WOMAN). Must negotiate their right with the IENEE of KWANMEE TRIBE led by TOM KAUT.

COUNTERCLAIMANT 6 – FAMILY MUSU

FAMILY MUSU's rights are attached to KWANMAN TRIBE through KAWIA TUAN (woman). Must negotiate their rights with the IENEE of KWANMAN TRIBE led by TOM KAUT.

COUNTERCLAIMANT 7 FAMILY WHIA IHOKUMAS

FAMILY WEHIA IHOKUMAS' right are attached to KWANMAN TRIBE through WIHIA's name. Must negotiate their rights with the IENEE of KWANMANE TRIBE led by TOM KAUT.

COUNTERCLAIMANT 8 – NISIKO TRIBE

The members of the NISIKO TRIBE led by IATA KILMAN and TUPUSI must negotiate their right over lands with the IRU TRIBE (ORIGINAL NOHALNIPINA) and/or NOHALNIPINA TRIBE (KAPALU MITA) and/or NISIKO TRIBE (ORIGINAL CLAIMANT).

COUNTERCLAIMANT 9 – KAPALU MITA

KAPALU MITA is ornwer of the land in ORANGE with the IRU TRIBE (ORIGINAL NOHALNIPINA)

ORDERS:

1. ANY DEVELOPMENT OVER THE DECLARED LANDS must be discussed between the IENEES of the 2 tribes;
   
2. ACCESS TO THE COASTAL AREA CANNOT BE RESTRICTED AS to deprive the tribes of NASAIKAME and KWANMANE or any other tribes within the disputed area from coastal area;
   
3. THE MEMBERS OF THE DECLARED TRIBES must not evict any persons or families from their respective declared land boundaries in IMASU unless compensation is paid for the development made over the land.
   

The parties have 30 days from the date of the Judgment to file any appeal.

Tanna, this 4 June 2012

.......................... JUSTICE SAMSON SAM		............................. JUSTICE JIPALO	............................... JUSTICE TAMANU SAM
	.............................. SENIOR MAGISTRATES RITA BILL NAVITI

Editors Note: the attached PDF, contains a copy of a map attached to this page