Toto v Pasvu [1987] VULawRp 5; [1980-1994] Van LR 300 (6 July 1987)

[1980-1994] Van LR 300

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

Land Appeal Case No. L6 of 85

BETWEEN:

OBED TOTO
Appellant

AND:

PHILIP PASVU
Respondent

Coram: Chief Justice Cooke

JUDGMENT

[LAND CASE - CUSTOM - INDEPENDENCE - Champagne Beach land case]

This is an appeal by Obed Toto supported by Crero Toto, his father, and Noel John against the decision of the Island Court given on the 10th July 1985. Their decision was that the land, Loreneth, belongs to Philip Pasvu.

On reading through the Judgment of the Island Court I regret I am unable to agree with their reasoning particularly their rejection of the sale of the land in question which took place some eighty years ago. They stated in their Judgment:-

"The Court has studied all the papers by both sides during the Court sitting concerning sales of land and records of meetings held some time ago. The Court decides that it will not take note of all these papers because they were from times before Independence and also as it did not take into account what happened during the time of politic. The Court decides that it won't take too much notice of the record of the land sales because the people who sold the land were not the true owners and some of the papers are false".

I fail to appreciate their reasoning that because sales took place before Independence they are not acceptable. How possibly could they seriously consider the problem before them unless they considered who sold the land and who occupied it for the past eighty years. I, therefore consider they failed in their duty and accordingly I quash their decision.

The Appellant's Case

The land in question is Thias land or land in the vicinity of and including Champagne Beach, part of title 632 and Loreneth on Commonwealth land adjoining title 632 and numbered title 553, both registered in the Land Records office, Port Vila. It will be seen from the records of the early dealings with the title 553 and part title 632 that numerous transfers took place from the year 1900 onwards. The Appellant has based his appeal on these transfers and contends that his ancestor owned the land in title 553 and part title 632 and has submitted to the Court an exchange document, Exhibit 1 (a) which shows that his ancestor, Chief Mete, exchanged a piece of land in block 2 on the Survey plan for (the subject) piece of land. The other land in title 553, the Appellant traced as having been originally sold to Burns Philp & Co. He submitted this portion of land was known as Loreneth and belonged to his ancestor, Crero and Andrew and that when Andrew died, the land belonged to his ancestor as in custom, when land belongs to two people and when one dies, it belongs to the other. The custom advisers support this contention. This is similar to joint ownership under the present England Law system. He did concede that if the Respondent established a relationship with Andrew, he would, if asked, give a piece of land to the Respondent.

The Appellant accepted that Loreneth was owned by Crero Toto and Andrew and that when Andrew died the land automatically went to Crero Toto, with a provision that if a relative of Andrew asked for a piece of land, he had to be given land. This position again was confirmed by my custom advisers. An example of this was given by the Appellant when he gave evidence, which I believed, that before Andrew died he sent Shadrack Tavor to see Crero Toto at Kole Village, telling him (Crero Toto) that the land will remain Crero Toto's and that he, Crero Toto, was to give a piece of it to Sande, Shadrack Tavor's son.

I was impressed with two statements of Crero Toto, father of the Appellant, which I repeat in toto:

"I am Crero Toto. I claim the land Loreneth Title No. 553 because my grandfather Novnathken and mother Kuvurvur were both from Loreneth. The land Kaspa and Nevret sold to Mr Witts later known as Commonwealth Land: When people of Loreneth knew that Kaspa and Nevret sold the land they chased them away because they were from Varangen.
My name Crero was given to me by my father, the name belonged to a big chief of Loreneth, the other name Toto was given to me by Mr Thomas 1 and Mr Thomas 2.
A long time ago I was told that all the people of Loreneth were all dead except my grandfather Novnathken, grandmother Kuvurvur and Reser. The chiefs, elders and people of Hog Harbour knew that I am the Chief Custom Owner of Loreneth Land Title No. 553.
There were several meetings, land court cases about Loreneth and found that the land belongs to Luke, Andrew and I, but not Philip Pasvu. He is very far to claim Loreneth. As you look at the family tree, Philip Pasvu cannot claim Loreneth to be his land because his great grandfather Nvatneroc and his great grandmother are not from Loreneth, they are from Lotenar.
On 29th April 1977, the first Loreneth land court case took place at Hog Harbour Nakamal between Obed Toto and Philip Pasvu. The court case was listened and judged by Mr Baker, B.D.A. Northern District.
After Mr Baker hearing Obed Toto and Philip Pasvu family history about Loreneth, Mr Baker told everybody in the Nakamal that Obed Toto is the chief custom owner of Loreneth. If Philip P. claims a piece of land at Loreneth on behalf of Andrew, he must get permission from Obed Toto. This means if Philip P. wants a piece of land at Loreneth he must ask permission from Obed Toto.
In April 1977 Obed Toto wanted to pull a fence for cattle at Loreneth but a French man named Rolland Bois who looked after Mr Peace land, told Obed Toto that he must get a written letter or a note from Mr Baker before he can pull the cattle fence at Loreneth. Following Mr Rolland Bois order, Obed Toto went to Mr Baker. Mr Baker gave him a letter addressed to Mr Rolland Bois authorising Obed Toto to pull a cattle fence at Loreneth, so Obed Toto pulled the fence and put twelve bullocks inside.
On 1st May 1977 Philip Pasvu took some Nagriamel supporters and cut Obed Toto's cattle fence and the bullocks all ran away. No punishment was given to Philip Pasvu because that time Nagriamel supporters almost governed the island Santo so they can do what they like and not get punished.
From my point of view Philip Pasvu was very wrong to take that action disobeying Mr Baker.
First inquiry of custom owner of Loreneth Land Title No. 553 made by sixteen people of Hog Harbour representing North, East, South and West of Hog Harbour. The inquiry took place at Mission house, Hog Harbour. The Chairman was Noel Warily.
After their inquiry, they found that Obed Toto is the chief Custom Owner of Loreneth land Title No. 553.
The second time inquiry made by the same sixteen members plus Chief Sul and Sengon of Kole Village, Musu of Shark bay and Chief Mark of Hog Harbour village. On the 29th April 1981, the inquiry took place in cooperative house at Hog Harbour village. After the inquiry members met they found that Obed Toto is the chief custom owner of Loreneth Land Title No. 553.
The second time, Loreneth land court case took place in Young Peoples house at Hog Harbour village. It was East Santo Area Land Committee who listened and judged to find out who is the custom owner of Loreneth Land Title No. 553. After listening to Obed Toto and Philip Pasvu family history, they found that Obed Toto is the chief custom owner of Loreneth. The Committee said if Philip Pasvu claims the land on behalf of Andrew then both Obed Toto and Philip Pasvu may split the title No. 553 in half from the sea to the top of the hill where Loreneth land ends. Otherwise Philip Pasvu cannot claim the land Loreneth because his great grandfather and mother were not from Loreneth.
Once again Philip Pasvu never agreed with the East Santo Area Land Committee so he went to Santo Rural Land and made his appeal on two pieces of land Title No. 553 and 632."

He further stated:

"I am Crero Toto. I claim Theiyas (Nesegnonmoror) Champagne Beach land Title No. 632 to be mine. The land my grandfather Chief Mede and Warvut sold to Mr Thomas Bros. Witts on 7 Sept, 1907. Mr Thomas Bros Witts wanted this land because he had some land further ahead. He did not want to see Chief Mede, Warvut and family living and working on the land Title No. 632. They were in his way, so Mr Thomas Bros. Witts bought a land Nvatwateluth and persuaded them to exchange with the land Title No. 632. If you look at the sketch map on the land Title No. 632 you can see some navel trees, coconut trees, nut trees and some bread-fruit trees where chief Mede used to live and make his gardens.
My name Toto was given to me by Mr Thomas Bros. Witts who exchanged my grandfather's land Title No. 632 with Nvatwateluth. During that time there were two Thomas, that's why they call me TOTO but my custom name is CRERO.
As you look at the family tree, my grandfather Chief Mede had two wives but Mede's other wives children and grand children have all died as stated on the family tree.
Everybody in Hog Harbour village knows that Champagne Beach belongs to me Toto. Whenever anybody wants to spend a day at Champagne Beach they ask permission from my son Obed Toto."

The Appellant's submission was further supported by Noel John, and Thomas Reuben Seru who agreed with the contentions of the Appellant and Crero Toto.

It has been proved to my satisfaction that the Appellant has claim in title and in custom to the said land. That was his claim and my decision is based on that claim.

The Respondent's Case

I was also impressed in the manner the Respondent presented his case.

His case is that Resar was his ancestor and he owned Loreneth. That he had a wife named N'Warcesus and that she had two children prior to the marriage named Ri Luke and Kubur and through those two children he had a claim to Loreneth. However there was a full son of Resar called Andrew and again the Respondent claims through him.

The Respondent actually claims that Ri Luke gave him his property but the only evidence of any property was a licence to grow vegetables and take fruit from title 553. Even if Ri Luke gave him this document, which is denied by the Appellant, it means nothing as there is no right attached to the licence to pass it to others. I reject this claim. Again, one has to consider that Ri Luke married a woman who had two sons and I am advised by my custom advisers that they would have first claim to Ri Luke's property and I accept such and reject any claim which the Respondent contends he has to land through Ri Luke.

Secondly, the Respondent states he claims through his mother, Meriam, who was the daughter of Kubur, the sister of Ri Luke and step-sister of Andrew. The Respondent has difficulties to overcome as Meriam married three times and the Respondent is the son of the third marriage. He would certainly have a claim to his own father but before he could have any claim to his grandmother, Kubur, the children of the first and second marriages would have prior claim to his claim. This claim to his grandmother is too remote and has not been established to my satisfaction, so accordingly I reject this claim.

Findings

It must be remembered that all the people of that area were living in the hills about 1900 above Champagne Beach because of clan fighting and that they only started to come down closer to the sea with the arrival of the missionaries. I reject the Respondent's submission that the Appellant had no rights to title 553 and part of 632.

I therefore declare that the Appellants are the true custom owners of title 553 and that portion of title 632 to which the Appellant is entitled as custom owner.

I further consider that the Respondent has some rights in the area through his grandfather Andrew and declare that he is the true custom owner of that portion of Champagne Beach west of the Nabanga tree. The remainder to the east is the Appellants.

It is ordered that the present road to the beach shall be a common road to the two parties. All revenue derived from the visits of the M.V. Fairstar to be divided 2/3 to the Appellants and 1/3 to the Respondent. This will only be effective when the claims of the alienator have been satisfied. In the meantime, all revenue must be paid into the Supreme Court pending a further Order as to its disposal by the Court.

It is further ordered that some piece of land be given by the Appellants to Tavor's son, Sande.

Liberty is granted to the parties to refer the matter back to the Court should any clarification of the Judgment be required.

From the revenue of the visits of the Fairstar there shall be deducted 100,000VT Court costs and a further sum to cover survey fees.

Dated at Luganville this 6th day of July, 1987.

FREDERICK G. COOKE
CHIEF JUSTICE