Kalsakau v Lauru [1995] VUMC 8; Case 04 of 1993 (13 March 1995)

IN THE MAGISTRATE'S COURT
OF THE REPUBLIC OF VANUATU
SITTING AS LAND COURT
WITH 3 ASSESSORS
AT PORT VILA

CASE NO.4 of 1993

Sitting on various dates within 4 months.

BETWEEN

NARU KALBEAU KALSAKAU

Original Claimant

AND

JAMES KALAU LAURU
First Claimant

AND

FAMILY BAKOKOTO
Second Claimant

AND

CHIEF MANAREWO & FAMILY
Third Claimant

AND

FAMILY KALPARAM
Fourth Claimant

PETER KALTOLI NAPAKAURANA
Fifth Claimant

AND

PIERRE NIKARAH
Sixth Claimant

CORAM: S. LENALIA

ASSESSORS: Makal KALSONG
Frank KALMAIRE
Esron MANAPANGA

Land Claimed
- TAMAU
- Customary ownership
- Ownership and inheritance of custom land in Efate

Authorities referred to: - Chapter 12 of the Constitution of Vanuatu Articles: 73 & 74

This claim concerns a parcel of land in an acute triangular slope known to the parties to it as TAMAU or DAMAU land comprised and described by Title 57G within a general Title No. 12/06/0633/149 situated at Tagabe. Evidence of all parties confirm it is rural land as opposed to urban land. I propose to deal with the evidence of this case in the manner and order under which the claims were filed.

HISTORY OF LAND CLAIMANTS AND THEIR WITNESSES.

ORIGINAL CLAIMANT

There are 7 Claimants in total with Mr Naru Kalbeau KALSAKAU being the Original Claimant. The evidence of Mr Naru Kalbeau Kalsakau is recorded in his statement dated 19th November, 1993 with the heading "SUMMARY BLONG TOKTOK BLONG MI". This summary is also marked with the letter "A". In this summary the original Claimant gives a historical background of the Reserve at Tagabe area. Mr Kalbeau says that on the 21st day of January, 1885, the Reserve was leased to a French Company known then as Societe Francais des Nouvelles Hebrides abbreviated (S.F.N.H.) and in the English interpretation - The French Company of the New Hebrides.

Mr Kalbeau says that this company used the Ifira Reserve Land for 35 years until 21st
January, 1921. As to what occurred after 1921 is not clear from his evidence but as he can see from the evidence of the other Claimants the land reverted to its reserve status. That in 1908 Tarimata Kalsakau became Chief of Ifira and that he was the one who signed documents on the agreement to ease the farad to the above mentioned company.

He says that by 5th January, 1948, Mr Harry OHLEN requested Chief Tarimata Kalsakau I to lease Tamau for some 30 years which lease commenced in 1930 ending in 1960. Mr. Kalbeau says the six years after expiry of the lease, he (Mr Naru Kalbeau Kalsakau) was the first person to build his house on Damau in 1966. He further says that for another 14 years, Damau land was once more placed under reserve from 1966 to 1980.

Mr Kalbeau says that the reason why Damau land had been reserved was due to consistent opposition by him against colonial authorities otherwise Damau land could have be been declared a public land. All the other Claimants and their witnesses confirm this.

On historical background of Damau land, Mr Kalbeau says that in November 1966, with the assistance of his friends and his family, they cleared the bushes and built a house where he now lives. He says that his father Mr Kaltafa Kalsakau had told him that Chief Tarimata Kalsakau I, the father of Mr Kalbeau that the dispute about Damau had commenced in 1911 and that in April 1967, Mr O'Niel had gone up to Mr Kalbeau with a map for the purpose of removing Mr Kalbeau from where he had built his house. Mr Kalbeau says that he chased him away with an axe telling him that Damau land was the land of his grandfather, Chief Tarimata Kalsakau I. That in 1967 when this conflict was on between him and the Town Planning Authorities, he ( Mr Kalbeau ) went to see Chief Graham Kalsakau II. That the chief told him (Mr Kalbeau) to leave Damau land because the whiteman had taken it. He also says that in 1973, Chief Graham II brought to him a Tribunal book to sign some 13 pages. He says his wife was a witness. He says that having faced all these problems, he formed the Ifira Land Committee after Independence in 1980. Coupled with the original Claimant evidence was a great number of documentation evidence of which the Court shall refer to some of them later. The Court also noted that a great number of these documents are written in French.

CROSS-EXAMINATION NO.1 CLAIMANT

In cross-examination by the first claimant Mr Daniel Kalorib asked the original claimant is it true the land does not belong to Chief Kalsakau I, but belong to Chief Kalsakau 1's wife. Mr Kalbeau says that it belong to both of them and that he has documents dating back to 1882 on which Chief Kalsakau I appear to them. That Kano and Sope were witnesses to this. Mr Kalbeau never identified which documents were he referring to. Mr Kalorib also asked Mr Kalbeau why was it that chief Kalsakau I choose Kano and Scope to be his witnesses. The witness answered by saying that the two persons supported Chief Kalsakau I whenever there was talk about land. Mr Kalbeau also says that the names of Kano and Scope frequently appear on documents regarding land. He was asked if Kano and Scope were also land owners. In answer and without specification Mr Kalbeau says that, Kano was a member of the family of Kalsakau I and Scope was a Pastor Missionary originally from Pango village who get married to a cousin sister of Chief Kalsakau I by the name of Leinomas.

Mr Kalorib further asked if a part from Chief Kalsakau I were there any other custom owners and if not how about Messieurs Bakokoto, Lauru and Kalparam. In answer Mr Kalbeau said that there were no custom owners who sold land to whitemen and Chief Kalsakau I was one of them and that it was Chief Kalsakau I who started to make provision for land to be reserved and that he was the one who shared the land.

Mr Kalbeau further says that, when he was fighting for the land, he fought alone and not even Chief Graham Kalsakau II assisted him in anyway.

Mr Kalbeau says that he never knew about any other custom owners and had he not chased whitemen away, there would not be any claim for Tamau today. Another question put to this witness was, was it true the original claimant has only chased whitemen from his own area where he has built his house but not the whole of the Damau land. Mr Kalbeau says that it included the whole acute triangle and that that is why he is claiming for it.

CROSS-EXAMINATION NO 2 CLAIMANT

The No. 2 claimant Mr Billy Bakokoto for the Bakokoto family asked but a few questions in cross-examination. Mr Bakokoto asked Mr Kalbeau if he knows the history of Chief Kalsakau I. The witness says that he knows and he is further asked if Mr Kalbeau knows if Chief Kalsakau I and his Council stole so much land from various landowners in Vila. Mr Kalbeau answered that that was true. He was asked if Mr Kalbeau was present on the 6/11/91 when all the Chiefs and the people of Ifira gathered together to discuss ownership of Tamau land, the witness says that, he was on tour in Australia.

He was further asked why is it that Mr Kalbeau has claimed alone instead of the whole of Kalsakau family claiming. The only answer Mr Kalbeau gives to this question was that, he does not know because he was in Australia. To the Court this does not answer the question put by Mr. Billy Bakokoto and an explanation is owed since according to the evidence of the other claimants, Mr. Kalbeau has many other family members who are not with him on this claim. Mr. Billy Bakokoto expressed concern that he has a map showing the names of those who are custom owners of Tamau and that Mr. Kalbeau is not the only Claimant. Mr Bakokoto expresses that Tamau land does not belong to any particular custom owners. Mr Bakokoto further elaborates that, Tamau land belongs to Messieurs James Lauru, the Bakokoto family whom the questioner represents, Yowan Kalsakau, the family Kalparam and Mr Naru Kalbeau. Kalsakau's portion is situated near La SMET where the original claimant has built his house and store.

CROSS-EXAMINATION NO. 3 CLAIMANT.

Original Claimant was also cross-examined by the No. 3 Claimant, Mr Patrick Crowby also known as Chief Manarewo. I prefer to refer to Mr Crowby as Chief Manarewo. Chief Manarewo asked Mr. Kalbeau if it is true that Chief Kalsakau I had been made chief in 1908. Mr Kalbeau confirmed this. He was further asked who was the Chief before Kalsakau I. In answer, Mr Kalbeau says Chief Taripakoa was. The next question was who was the Chief before Chief Taripakoa, the answer given was that this witness would not know. It was further asked if he had made a mistake by saying that signing that document in 1882 by Chief Kalsakau I would not have been the case. In answer this witness says that as long as he can recall Chief Kalsakau I had been to school and he could discern between right or wrong. Chief Manarewo disagreed with this answer suggesting that this could be the reason for Chief Kalsakau I not being from Ifira. This suggestion was also raised by other claimants.

Mr Kalbeau says in answer to a series of questions put to him by Chief Manarewo that before 1908, Kalsakau I was a teacher at Erakor village and that his nasara was Wolaulo and Raurau because in those days they moved from place to place. The witness was asked whether within the disputed land does he know if there is a sacred place. Mr Kalbeau says that there was a stream there and that Tamau was swampy before. That the stream starts at Raurau coming through Tamau and goes out at Pango village.

He was further asked if it is possible that Tamau land commences from the other side of the Vila/Mele road. The witness says that, this is not true because the white people took Tamau and used it. This same question was repeated by the No. 3 claimant to the witnesses that that were called by Mr. Kalbeau. What the Court gathers from that fine of questioning is claimant No. 3 is suggesting to the Court that due to the physical features and formation of the disputed land, Vila/Mele and airport road is not a boundary, that as well his forefathers sold the Anglican Mission land and the fact that Kalpuaso planted coconut near and opposite La SMET. This could only mean that Damau was owned by Kalpuaso.

The witness was also asked who allowed Bob Kalphabun to build his house where he is now residing. Mr Kalbeau says that it was Leimako, Levia and others. Chief Manarewo suggested that it was Manusa who sold it in 1882 and that Chief Nareo witnessed this deal. Mr. Kalbeau is further asked if he saw any coconut trees on Tamau planted by Kalpuaso. The witness says there was no coconut trees whatsoever except for one or two on the other side of the road but the whole Tamau area was covered by kases (fossil trees) wood and surrounded by a cow fence. He was asked just because the original claimant was the first one to settle there in 1966, does it mean he can then claim for himself. Mr Kalbeau says, that is not the case. It is because the land was under Kalsakau's name.

Chief Manarewo further asked Mr. Kalbeau if it was true to say it was only Leimo who had right to inherit Tamau land. The witness says in answer that both Leimo and Kalsakau had right to succession but that Chief Kalsakau 1 had his name on all the documents. The witness was asked too if he knows that the Bakokoto family origins had come from Tuktuk near Devil's Point. The witness says it is true that they originated (Bakokoto family) from Tuktuk. The witness was further asked if he saw any gardens on the Tamau land when he moved in, in 1966. The witness says, he saw some taro and a few namambe trees but certainly there were no coconuts.

CROSS-EXAMINATION NO. 4 CLAIMANT.

Mr. Harry Bule for the 4th claimant also cross-examined Mr. Kalbeau by asking if by the time this witness moved into Tamau land in 1966, was there any Ifira islanders around. Kalbeau said there was nobody there. He was further asked if the Kalsakau family where represented on the 6/11/91 when the land was divided up by the current chief. Mr. Kalsakau says that he was away on tour, he could not be represented. Mr. Kalsakau said that when he was chasing the whitemen away in those colonial years, he did not see any Ifira Islanders around there nor did anyone of them stood by his back when he was fighting with colonial authorities to claim Tamau land.

CROSS-EXAMINATION CLAIMANT NO. 5

Claimant No. 5, Mr Peter Kaltoli Napakaurana also cross-examined Mr Kalbeau by asking if it is true there were nobody farming on Tamau land by 1966. Mr Kalbeau says by the time he moved on to Tamau land there was no one farming there, however by 1975 he saw some gardens. Mr Kalbeau does not specify who made those gardens by then but that he saw a few fruit trees around the area and Mr. Kalbeau says he does not even know who planted them. The witness was asked if he saw the crossexaminer's grandfather and knew if Peter Kaltoli's grandfather had land on Tamau. The witness simply says he never saw him there nor did he know that time. Mr Kaltoli raises a good question in relation to the question of customary ownership in Efate. He asked the witness who is entitled to property succession in Efate. The witness says that it is usually the male agnate descendants, but on rare occasions, female could also inherit land from heir fathers. Mr Kalbeau further says that it is only on exceptional cases such as there are no male agnate descendants in a family. The evidence of all other claimants confirm this view but only on exceptional cases.

Another question put to Mr. Kalbeau was, was it true that this witness only protected Tamau
land for the interest of Ifira Islanders who were and are custom owners of Tamau. Mr. Kalbeau says in reply that he was the only one who had shown any interest in protecting Tamau land. He says that in 1978; a person came to his house and damaged his doors, windows and chairs. He says that as the result of this, this witness got cross and shot this intruder. That this incident was the result of the Tamau land dispute. Other claimants raised objections saying the shooting incident did not relate to Tamau land dispute. The witness was asked where did Kalpuaso Bakokoto and Lauru originated from. Mr Kalbeau answered that Kalpuaso's father was a man Epi by the name of Esau. That Bakokoto and Kalparam originated from Tuktuk and Banks respectively. This witness father adds that even Harry Bule himself comes from Ambrym but was only adopted by Thomas.

A notable factor noticed so far is that in Ifira and it could be true to say in Efate, succession of property goes to male agnate descendants first to the first born, the second and so forth. It is also noted that, woman may also have right only where circumstances allow it. The most common example is where there are no males born in a family.

The Court had liberty to ask Mr. Kalbeau why was it that Chief Kalsakau was outspoken, was it because he acted on behalf of the Ifira Islanders. The witness answered that was true and that Chief Kalsakau I acted for the co-operate interest of Ifira Islanders. Mr Kalbeau was asked what comment did he have about No. 5 claimant. The witness says that when he fighting for Tamau land he did it alone and by himself. He was asked if his father was the only person who settled on that land. The witness says, nobody settled on Tamau as it was occupied by fossil trees and was surrounded by a cow fence.

The first witness of the original claimant was his wife Rosa Kalsakau. Her evidence is much similar to evidence adduced by the original claimant. To avoid repetition the Court shall only highlight on questions raised in examination in chief, cross-examination and re-examination. The first witness was asked why was it that the rest of the Kalsakau family have not been engaged in this claim. The first witness says that it is because it was her husband alone who fought for Tamau land. She was further asked why was it that her husband's father never told the Ifira Islanders that Tamau land was his. She answered that since she got married in 1964, she never heard any complaint or any dispute regarding Tamau land. No questions in re-examination.

CROSS-EXAMINATION - CLAIMANT NO.1

Mr Daniel Kalorib asked Mrs Rosa Kalsakau if auntie Ruk specified the boundaries of the Tamau land. Mrs Kalsakau says that it was the area around their house. The witness does not further highlight which particular area. She was asked if was there any dispute at all when her husband came to build the house in Tamau. The witness says there was no dispute whatsoever. However Mr Kalorib says that there was a dispute really between the original claimant and the Bakokoto family. The original claimant confirms there was a dispute really but it was in 1975. The same witness was asked by the No.2 claimant that was it true the Bakokoto family had come to the original claimant and had an argument about the place where Mr. Kalbeau was building his house. Mrs Kalsakau answered by saying that she can recall Granny Bakokoto going up to Mr Kalsakau and advised Mr Kalbeau Kalsakau to build his house where he built his house.

CROSS-EXAMINATION – NO. 2 CLAIMANT

She was further asked if it is true Tamau land is belonging to her husband why settled on the same corner only. The witness says that the fact that her husband had settled on one corner only does not mean her husband does not own Tamau land. She was further asked who gave the potion of land to Yowan Kalsakau where he had settled. The witness through the original claimant says that Dr. John Kalsakau did. Mr Billy Kirikiri Bakokoto expressed concern that, this is completely wrong as it was, Kakau Bakokoto who gave land to Yowan Kalsakau. The first witness was further asked why was it that Dr. John Kalsakau and chief Graham Kalsakau II had built this house. This question was answered through the original claimant who suggested that Dr. Kalsakau never asked him to move, but it was Chief Graham Kalsakau II who did ask him in fear of whitemen in case he was killed. Mr Bakokoto disagreed with this answer and further ask why was it that Mr Kalbeau had offered a gift to the Bakokoto family in late 60's. Mr Bakokoto says in late 60's, family Bakokoto had wanted to do something serious to Mr Kalbeau's house. That due to this the original claimant offered a mat to Edward Bakokoto.

CROSS-EXAMINATION - NO. 3 CLAIMANT.

The No. 3 claimant also cross-examined this witness. Chief Manarewo asked a series of questions similar to the No. 1 and 2 claimants and I do not wish to repeat my here except
for certain questions. Chief Manarewo asked this witness if it was true there was a judgment on Tamau land in 1930 under and in which the land was given back to the Ifira community. This question answered through the original claimant who said it was true the land released to the Ifira community in 1930 to 1960. Another question put was "did the Ifira Community leased it back to Mr Harry Ohlen". In answer the witness says it was true. She was asked what was the contents of the 13 page document which her husband signed or supposed to have signed. The witness says in reply that the document stated that the land should be placed under reserve. The witness was further asked if there was any further reasons why Chief Graham Kalsakau II had urged her and her husband to move out from where they are now. The witness said in answer that, the Chief feared whitemen might hurt them (witness and her husband). She was further asked whom did Chief Kalsakau I get the land from: Rosa Kalsakau says they would not know but they claim under Kalsakau I. This witness also says in answer to another question that Kalsakau I never sold land but he was the one who formed the Native Reserve and he acted on the interest of Ifira Islanders.

Another question put to her was didn't this witness think that Chief Kalsakau I only acted on behalf of Ifira custom owners. The witness replied by saying, it was true Chief Kalsakau I acted for the interest of Ifira Islanders, but that when her husband and her were fighting with colonial authorities over Tamau land nobody from Ifira stood at their backs to resist colonial administration proposal to have Tamau land declared a public land. She was asked if she knew or heard about Chief Nareo Marik Atilangi. The witness says she does not know nor did she ever hear about anyone by that name but she does not know who was Chief before Chief Taripakoa.

The witness is further asked if it was possible that there were customary owners of Tamau at the time when her husband was having problems with the town authorities. She answered once more saying that, it is possible but none of these other possible custom owners assisted her husband.

Chief Manerewo suggested to the witness that the reason why Chief Kalsakau I was ordained Chief was because Kalsakau had been educated to some extent and secondly, he was already a Christian. Chief Manarewo suggested that this was a contradiction of customary practices in Ifira and generally in Efate where either before or after Chief dies, his son is ordained Chief. He further suggested that Chief Kalsakau I was not a custom Chief and it was true Kalsakau was the son of Makaure. The witness says it was true and that Makaure with a chief with 6 wives. Chief Manarewo disagrees with this answer and suggested Makaure was not a chief. She was further asked why was it that Chief Kalsakau I was only a witness to deeds of sales on certain parcels of land in Vila town and why is it that both Chief Kalsakau II and III also confirm that they had no land in particular on Tamau. The witness says in reply that, they had told Chief Mantoi Kalsakau III that they will prove this in Court.

CROSS-EXAMINATION NO. 4 & 5 CLAIMANT

Claimants No. 4 & 5 also cross-examined this witness. Claimant No.5, Mr Kaltoli asked if this witness knows if Chief Kalsakau I was born out of wedlock. The witness replied that this was not true. She was further asked if Chief Napakaurana had a nakamal on Tamau land. The witness simply said in answer that she never saw anyone on Tamau. That her husband chased whitemen from there. Mr Kaltoli suggested to this witness if she knew in 1975, he had tried to stop certain development on Tamau land. The witness once more says that when they fought for Tamau, no one from Ifira fought with them. Mr Kaltoli also suggested that by 1778 his nephew and as far as 1925 to 1936, his parents farmed on Tamau. The witness says she never saw any gardens there by 1966. The witness says further that there was some talk in 1975 that Mr. Kaltoli was also a land owner of Tamau but ever since then nothing definite has been said.

The second witness called by the original claimant was Mr Thomas Kaluat. This witness is from Erakor. This witness confirmed that it was true he assisted the original claimant and his family to build Mr Kalbeau's house. He was asked in examination in chief why is that the original claimant and this witness are so close together in their relationship. The witness says that the reason why is because the original claimant assisted him ( witness) with the building of his house. The second witness said in examination in chief that when they were cleaning the bushes in 1966, there were no gardens around the Tamau land. There were big trees and whitewood was all over Tamau, He says that he was present when Mr. Kalbeau signed the 13 page document.

CROSS-EXAMINATION NO. 1 CLAIMANT

Mr Daniel Kalorib asked this witness why did this witness came to testify for the original claimant. The witness said that because he knows that Mr Kalbeau fought and won the
Tamau land. He was asked if he knows that Mr Kalbeau is a custom owner of Tamau. The witness says in reply that " Yes it is true ". He was further asked if Mr. Kalbeau customarily owns Tamau land, the witness replied by saying he does not know.

CROSS-EXAMINATION NO. 2 CLAIMANT

Claimant No. 2, .Mr Kirikiri Bakokoto asked this witness where was he from. The No. 2
witness far the original claimant says he is from Erakor village. Mr Bakokoto expresses concern that he does not see any relevance in calling- a witness from Erakor village who would not normally be knowledgeable in customary ownership of land in Ifira since he does not know the history of the people of Ifira.

CROSS-EXAMINATION NO.3 CLAIMANT

The No. 3 claimant asked in cross-examination what was the 13 page document all about. The witness says he did not know what were the contents. The witness was asked if he saw on Tamau at the time they were clearing the bushes any fruit trees. Thomas said he saw mangoe trees around there providing good shade for the cows and horses. He also said in answer to another, that there were no banana trees, no coconuts and no gardens. Thomas was asked if it is possible that Tamau forms part of the land on the other side of the Vila/Mele road. The witness said in reply "yes". The Court doubts if this witness could say this really since he is from Erakor village, how could he possibly know a land history of Ifira Islanders. He was asked if he knows what year did Kalsakau I was born. The witness says he does not know. He was asked whom did Chief Kalsakau take over from. Once more the witness says he does not know. He was further asked who sold the land on which the Anglican Mission is now situated. The witness says he does not know.

CROSS-EXAMINATION NO. 4 CLAIMANT .

Claimant No. 4 also cross-examined the 2nd witness for the Original Claimant if this witness knows the boundary for the Ifira reserve land. The witness simply answered he does not know. He was further asked how is it that this witness being from Erakor village knows about custom history of the Ifira Island. The witness says he knows their history. The Court thought this type of questions should only be answered by Ifira Islanders. It could be true that the witness knew something or has knowledge of some history of Ifira because of close Proximity of the geographical locations of the two villages. However the Court does not think he would be qualified to answer all questions unless he gave evidence of specific relationship of himself and the original claimant. He was asked if he knew if there are other custom owners of Tamau land. The witness says he does not know. All he knows is when the original claimant asked him to build his (original claimant) house, this witness engaged members of his family to assist in the initial stages of cleaning the sight for the building.

CROSS-EXAMINATION NO. 5 CLAIMANT

The No. 5 claimant asked an interesting question to this witness by asking what is the witness opinion on outside men who are married to Ifira Islanders and does this change the status of ownership of custom land. The witness answered by saying that he does not agree. The court does not agree with this witness because the reason for asking this question is that where there is a patrilineal system of ownership, male agnate descendants are entitled to property succession and they must claimed land belonging to their fathers. According to the evidence of all parties male descendants are entitled to succession of property unless there was special arrangemet that a female would be entitled to land inheritance. The witness was further asked if he knew about Peter Kaltoli's aunties Leimoko and Lenaru. The witness said in answer he knew them not and he had no reason to know about them. He was asked if he knew about the name Napakaurana. The witness said in answer he heard of the name. No questions were asked in re-examination and the Court asked the witness when he spoke of "reserve land", to whom was the land reserved. The witness answered it was reserved for Ifira chief. The witness further said, it is possible that Tamau is own by a number of other custom owners. He does not identify them.

The 3rd witness called by Mr. Kalbeau was Mr Kalotuk Kalkau from Eratap village. The court does not wish to deal with his evidence in any great detail since his evidence once more is much similar to the second witness. He confirmed that he assisted Mr Kalbeau to build Mr Kalbeau's house and in return Mr Kalbeau built his house. It would seem to the Court that the original claimant is a builder some how or other although this is not clearly stated in their evidence. This witness said he is a good friend of the original claimant. He says that at once stage Mr Kalbeau stopped him and the manager of La SMET from building the building where La SMET is now situated.

All claimants cross-examined his witness and the Court does not see it appropriate to repeat questions and answers given most of which are repetition. An interesting question was raised by the N.3 claimant how and why was it that two Ifira chief claimed from or on the name by a woman. The witness said by way of answer that, it is not proper to claim in the name of women and it is contrary to Efate custom for women to claim land.

The 4th witness called by the original claimant was his son Mr Kaltak Kalsakau and he was also the last witness. The Court wishes to normally deal with certain questions raised in cross-examination. The No. 1 claimant asked this witness why is it that Mr Kalbeau has claimed alone and can this witness specify if there are any living relatives of Mr Kalbeau Kalsakau. The witness said that there are five, three of whom are Dr John Kalsakau, Makau Kalsakau and George Kalsakau. He was asked if he could give a rough estimate of the number of persons in the original claimant's clan. The witness says there are more then 50 or so and says that the reason why his daddy has claimed alone is because he was the only one who chased the colonial authorities away from Tamau land.

The witness was asked if the rest of the Kalsakau family lost interest on this claim. The witness says there are number of factors contributing to why the rest of the family did not wish to claim. The witness does not identify those factors. He is asked if this an indication that, the Kalsakau family does not own Tamau. The witness says that it is not the case. It is one that his father fought hard for Tamau land. He says in answer to another question that the Kalsakau family has no group. The original claimant gave a further answer that the Kalsakau family has many other portions of land in the Vila town which other family members claim. He was further asked if it is possible that Tamau is owned by other custom owners. The witness says he does not know.

He was asked who was the No. 2 chief of Ifira. The witness says there are many chiefs and he would not know. He is further asked whose interest was his father claim from. The original claimant answered himself by saying that Chief Graham Kalsakau II had nothing to say because he was a friend of whitemen. The witness was asked how effective is a chief's decision in customary matters. The witness says that if it was a customary matter nobody would reverse and even question a chiefs ruling, but that today where custom is now mixed with many other considerations, the consideration of fairness justice will prevail.

The original claimant tendered a family tree (genealogy ). Nobody disputed it. I have no reasons to discuss this further. The questions is raised, if it was true that Tarimata Kalsakau I leased Tamau land, was he a custom owner or he did it for the interest of the customary owners since he was their chief that time.

To summarise the Original claimant evidence it is this Court's opinion that he has given overwhelming evidence on the Point of fighting with colonial authorities to retain Tamau land. The Court shall give two examples. The first one is in cross-examination by the No.2 claimant a question is put to this witness, was it true that Chief Kalsakau and his Council of Chief stole much land from Ifira Islanders. Mr Kalsakau's answer was that it is true he knows of his allegations. The second example is, he was asked why is that, that he alone has claimed since he has some brothers who should also claim of Tamau if Tamau was theirs. The answer given by the original claimant was, they have got many other portions of land elsewhere so much so that they do not wish to claim with him. Mr Kalbeau kept saying that when he chase whitemen away, he did not see any Ifira Islanders backing him up. This to the Court would mean that because Mr Kalbeau fought hard to retain Tamau, the disputed land shall be his. This idea is also supported by the evidence of the first and fifth witness for the original claimant. Because of this, the Court does not believe that the original claimant should claim Tamau land.

CLAIMANT NO. 1

Mr James Lauru Malangi is the No. 1 claimant. He gave evidence himself and called 2 other witnesses. In his evidence he says that the land in dispute is called Tamau or Damau as put by the original claimant and that Tamau belongs to Matarau Teniu-Clan Kokonas. That the
Matarau Taniu clansmen are true custom owners. He says his father came out from Matarau Tenie. That his father was Karan. That this is why his family and himself are claiming. He says that that in 1929 there were a lot disputes between Matarau Teniu and those
who came out from Matarau Teniu. He says that Chief Kalsakau I worked hard to solve those
problems but without much success.

He further says that because of the repeated disputes over Tamau, the land was placed under the responsibility of Chief Kalsakau l to look after it for the interest of custom owners. That chief Kalsakau I decided to sell the land to Mr Harry Ohlen, but it was to late because by 1930 the Condominium Government decided to and declared Tamau as a reserve as part of the Malapoa Reserve and that because of the declaration Chief Kalsakau I leased Tamau to Mr Harry Ohlen for a period of 30 years. That some of the older custom owners signed with the chief and a consensus was reached between the chief and these various custom owners that chief Kalsakau I would be responsible for collecting the rents to distribute to those concerned.

The leased expired in 1960 and those who had signed the lease with chief Kalsakau I are still alive today. They are Kaltanak Bakokoto, Lauru and Kalparam. That when the lease expired, George Kaltoi Kalsakau put those Penticost people near the Anglican Mission land. That about the same time, the original claimant built his house where it is now while the father of the original claimant Mr. Kaltawa Kalsakau built his on the corner between La SMET and the Anglican Mission ground. The witness further says that at the time of the building of those houses the Bakokoto family had a dispute with the original claimant and his father. That Chief Kalsakau II and his council of Chief settled this dispute. Mr Lauru says that, the land where the original claimant and his father built their houses on was owned by Leimoko, the wife of Chief Kalsakau I. That during those times the original claimant never wanted to claim.

He further said that in 1961, Chief Graham Kalsakau II convened a meeting and informed all interested parties that the lease had expired and asked the custom owners what they wanted to do with the land. That by then the custom owners did not make any decisions as to what they would do with the land and once more the land was placed on reserve under Chief Graham Kalsakau II.

He further says that Chief Kalsakau I entered an agreement with Messieurs George Milne and Lionel Mitchell for the Condominium Government to discharge rubbish on Tamau land since the area was swampy. He says in 1970, Dr Makau Kalsakau wanted to build his house on a portion of Tamau owned by Thelma Kalsakau and once more there was a dispute between the Bakokoto family and Mr. Makau Kalsakau making it impossible for the Dr. to build his house there. He further says that on 6/11/91 Chief Mantoi Kalsakau III and his council of chiefs of Ifira walked the boundaries of the whole of Tamau and indicated the boundaries between the Bakokoto, the Lauru and the Kalparam families. That having walked the land, the Chief then divided the land between various custom owners. He says that in September 1992, he leased part of their land to Au Bon Marche (see certificate of Negotiation-Title G 57 part- the total area granted -approximately 4000 square yards) and it is already in operation by now.

CROSS-EXAMINATION - ORIGINAL CLAIMANT.

This witness was asked in cross-examination who was his father. He answered his father (witness's) was Karan Lauru and that he was one of those who signed the lease with Mr Harry Ohlen. That his father was foreman in one of Mr Ohlen's plantations. He was asked who was Karan's father. He answered Lauru was but the he does not know Lauru's father. He was further asked does he know if Lauru was from Ifira Island. The witness says it is true he was from Vila Island and that his father was still around when the original claimant chased the whitemen away from Tamau land.

He was asked why was it that this witness did not come to Tamau land between 1966 and
1972. The witness says he was in Ifira Island and too he was away in school. He is asked
what year did Graham Kalsakau II die. He says about 1989. He was asked what year was the current chief ordained chief of Ifira. The witness Says in December 1991. This witness expresses concern that the reason for them coming to the Court because the questioner (original claimant) was not satisfied with the decision made by chief Mantoi Kalsakau III and his council of Chiefs of Ifira. He was asked if this witness knows the original claimant's grandfather received payments as rent for the lease on Tamau. The witness says that custom owners received rents however there had always been rows between custom owners now disputing up until 1921 when Tamau was face placed on Trust then by 1930 the Condominium authorities placed it on reserve as Tamau and Malapoa reserve.

CROSS-EXAMINATION – CLAIMANT NO.2

Claimant No.2 did not ask many questions. He asked this witness if it is true this witness is from Ifira and is it true this witness owns part of the disputed land. The witness simply says that he is happy about the action taken by the current chief and his council of dividing the land since the land had been held in suspense for sometime now.

CROSS-EXAMINATION - CLAIMANT NO.3

Claimant No. 3 had a very lengthy cross-examination. It was suggested to this witness if it is true Naflak (tribe) Naniu owns Tamau. The witness said it is true and that those days he saw a few fruit trees and coconut trees planted by old people. He does not however identify which old people. He was asked if the original claimant is sole owner of Tamau. The witness answered by saying that Mr Kalbeau is a custom owner of where he had built his house up to where Yowan Kalsakau I has built his house. The witness further says that he does not dispute but appreciates the fact that the original claimant Mr Naru Kalbeau Kalsakau had to battle with authorities to retain the whole of Tamau. He says what he disputes is that Tamau does not belong to Mr Kalbeau.

The witness was further asked whom does Mr Kalbeau claims under. The Court supposes that this question was asked to a wrong witness, because the only person to answer this question would have been the Original claimant. However the witness simply says, the original claimant claims under Leimok who came from family Kalobungi and who was married to Chief Kalsakau I. He was further asked where did Kalobungi came out from to which the witness said from Vila Island from Nasara Malpakoa

He was asked if it is true Messieurs Lauru and Kalparam witness the people being signed. Mr Lauru answered that they were not only witness but were signatories to the lease with Mr Harry Ohlen. The witness is further asked how did the Chief divide Tamau land. Chief Manarewo did not specify which Chief however the witness said in answer that there has been a long standing dispute over Tamau and that an attempt was made by custom owners to get Chief Kalsakau 1l to settle the dispute but that no solution eventuated thereby living the disputed land standing idle for a long time. He was asked if it is possible Tamau is part of the land on or opposite Vila/Mele road forming the Malapoa reserve. The witness says it is possible but every custom owner knows where this land begins and ends. The Court agrees with this view that each custom owner should know where his land is and where his boundaries are.

It was suggested to this witness if Lauru had come from Malekula. The witness said, he does
not know this and is further asked if the disputed land belongs to Leimako. The witness says that he does not know. He was asked if they had originated from Queensland. The witness says no. He only knows that Taiou came from Queensland He was asked if Lauru came out from Kokonas, the witness answered yes and added that his tribe was a chiefly one. He is asked who leased land to Au Bon Marche. The witness said his clan and himself did and that the No. 3 claimant has no business to talk about this issue. He was asked if it is possible that Kalpuaso's daughter farmed on Tamau. The witness says he did not see any gardens there and all he can recall is that there were cow fences surrounding Tamau. That these fences were removed in around 1970, The witness adds that it is possible that Kalpuaso was a custom owner, but in the light of all circumstances surrounding the dispute, each owner knows which part of Tamau he owns. The witness says that this idea was reflected by the current Chief of Ifira and his council of Chiefs of Ifira on the 6/11/91 when he divided the land to specific custom owners of which he is one.

He was further asked if this witness believes that the Ifira and Malapoa Reserve including Blacksands, had specific custom owners but not the Ifira community. The witness answered that this is true. He was asked if he could provide a copy of the agreement between Mr Harry Ohlen and the old people who signed the lease agreement. The witness says he does not have one but they have a document signed in 1972, showing all the original land owners. The Court has tried to trace this document but it has not traced it. The witness was asked if it was true Kalsakau 1 sold land on Anabrou. The witness says it was true, it was back in 1885 but he sold land on behalf of custom owner. The witness said that he had been away in Malekula by 1949, and all the land around the Federation area was taken by his brothers so that is why he claims for part of Tamau.

The witness is asked if he heard about Chief Nareo. The witness says he did not know him nor did he hear about him. He is asked what is the situation with a case where there is no boys born in a family but only girls. The witness says that it is possible for a father to arrange for his daughter to inherit land but remembering the fact that she is married, the children particularly, the male children have right to succession of property. The witness further says that even if she was given land, she had a very limited use of land if she had brothers. It was suggested to this witness if it was true Kalpuaso had a portion of land on Tamau land. The witness says he does not know.

The witness was further asked whom does this witness claims from. Mr Lauru says from his grandfather Karen and Karan got it from abu Lauru. He was asked if Karan worked on Tamau by 1930. The witness says on the other side. He was asked if the witness knows of a woman called Leiburu and another or not she was Malpakoa. The witness says yes he recalled her and she was married to Kalpuaso. He was asked who sold the land where the Pakaroa church is situated. The witness says he does not know. He was asked about a hole on the heart of Tamau land if he knows its name. The witness says he does not know. He was asked what does this witness know about the custom boundaries of the disputed land. The witness says in answer that custom boundaries exists the same as before. Normally they would be natural features like hills, mountains, rivers or stones. This witness says that under his request the land was sub-divided by the current Chief in 1991.

He adds that even those who already given land in 1991, they still cannot agree on the boundaries. He was asked if his family also participated on the sale agreement with Au Bon Marche. The witness said he did it alone. He was asked if the witness feels happy about the share of Tamau that he got. The witness says that before the land was sub-divided a meeting was convened in November 1991. The council of Chief agreed to share the land.

CROSS-EXAMINATION NO. 4 CLAIMANT

Mr Harry Bakokoto cross-examined this witness by asking which person does the witness claims from. The witness said from his father. He was asked if the witness father made gardens on Tamau. The witness says that his father made gardens there.

CROSS-EXAMINATION NO. 5 CLAIMANT

Mr Kaltoli asked what customary rules and practices governed succession of property in particular ownership of land in Efate and in particular in Ifira Island. The witness says that it is usually the male descendants who are entitled to ownership of land from their fathers. He was asked about the case of those who say for instance who have migrated from other Islands into Ifira Island. The witness says and answered the same to other claimant who has asked the same question by saying that practically speaking they would not have any land in Ifira particularly those women who are married to men outside Ifira. The witness was asked if this witness ever heard if the questioner's father was also a land owner of the disputed land. The witness says that the chief gave portions of land to those who requested him but it does not mean they are strangers. That the chief action in giving land to the witness and the others was a mere formality since custom already decided who is and who is not a custom owner. That they were given something that is rightfully theirs already. He says that way back in 1946 a declaration was made as to who are the land owners of Tamau. The Court looked through this claimant's file but could not trace this in his file.

He is further asked if it was true that there was a dispute over Tamau land in 1920 and was it true that Napakaura and his family were also involved. The witness says it is true but he does not know those involved. The witness was asked who was his father. The witness says Karan was his father and his mother was Rebecca.

FIRST WITNESS CLAIMANT NO. 1

The first witness of Claimant No. 1 was Mr. Daniel Kalorib, the Assistant Chief of Ifira Island. He is currently working with the Vila Central Hospital. His statement is also similar to that given by Mr Lauru. Mr Kalorib simply says that Tamau belongs to Matarau Teniu ( clan Kokonas ). He says his bubu named Lauru come out from Matarau Teniu and that he was a true custom owner. Apart from what the No. 1 claimant had said, Mr Kalorib says that he came out from the family Lauru. That in 1983, he made a garden near or opposite Dr. Makau's proposed building sight, the land belongs to his abu. He says he was stopped by family Bakokoto and was shown his boundaries.

Mr Kalorib further adds that in 1991, he asked the Chief of Ifira and his council of Chiefs to view the land and its boundaries. That many Ifira Islanders came to view and witness the boundaries after which Tamau land was divided into 3 portions; one for Mr. Kalua Lauru, one for the Kalparam family and a piece for Mr. Daniel Kalorib. He said that the chief also notified them where their boundaries ends. The witness further says that on 23/12/92, the original claimant- wrote a strong worded letter to this witness claiming that the original claimant owns Tamau but that this witness ignored this letter. At the conclusion of his evidence Mr Kalorib says that the No. 1 claimant and himself claim for this land because they know they are custom owners. In examination in Chief, the witness is asked if the statement the clerk, has read to the Court was a true representation of the customary mode of ownership of land in Ifira. The witness says "it is true."

CROSS-EXAMINATION BY THE ORIGINAL CLAIMANT

The original claimant asks this witness if it true and is it a custom of Ifira for a Naflak to own the land. The witness says "true". The original claimant disagreed with this answer but does not specify why. It was put to this witness if it was true that Chief Roy Mata brought peace to the Island of Efate. The witness confirms this. The witness was asked how many generations is it from Lauru to this witness. The witness said in answer 3 and adds, that between 1960 -1970, he was away in school in Fiji and by 1970 he had started working. He is asked where was this witness when the original claimant was chasing the whitemen away from Tamau. In reply the witness says he was in Ifira and he saw the original claimant doing this.

The witness was asked where did the Ifira Islanders originated from. The witness says in answer that they were Efate people. It was put to this witness if it is true this witness only became the owner of Tamau on 6th November 1991. The witness was a little angered by this question and he replies by saying that he has been a custom owners since time immemorial. The Court thinks what he means is that Tamau was owned by his ancestors and passed from generation to generation down to him. He was asked if it is true that Chief Graham Kalsakau II leased. Tamau. The witness says it was true. Once more the original claimant said he does not agree with the answer. He was asked where was his bubu's Nakamal. The witness said it was in Ifira.

The witness was further asked when did he became an assistant chief. In answer Kalorib said in 1991. He is asked when did he build his house in Tagabe. The witness replies in this 1977 and commenced residency in the same year. He was asked if anyone rented the house for him. The witness says it was a person from Pentecost but the witness threw this person out for non payment of rent. He was asked if the witness knows that the witness bubu had come to Court about the disputed land. The witness says that they had always disputed the land with the Bakokoto family.

The witness was asked if the witness's bubu made any gardens on Tamau. The witness says "Yes" before 1929. He was asked if it is true the Lauru family is from Ifira. The witness says in reply that is so. The original claimant disagreed and once more he does not tell the Court why. The witness is asked if the witness knows Lauru's wife. In answer the witness says that she was Sarimanu. He was further asked if any relationship existed between the Naflak and ownership of land. In reply, the witness says that it was a sign of peace and although related mainly to exchange and distribution of food, it also related to distribution of land allocated to each clans. The witness was asked if Chief Mantoi Kalsakau III distributed the disputed land under his authority and capacity as a Chief. The witness says that it was the case otherwise the parties would not have acted. The witness was asked where was Laura's Nasara. The witness said, from Malpakoa and Malpakoa is now in Ifira.

CROSS-EXAMINATION NO. 2 CLAIMANT

The No. 2 Claimant did not ask so many questions. He asked the witness was there any development between 1960 and 1991 and if not why was it. In reply the witness said there was no form of development whatsoever because Tamau is customary land. He was asked who are the custom owners. The witness says that as he knows, real custom owners are Bakokoto, Kalparam Lauru and the Napakaurana families. He was asked when chief Mantoi Kalsakau III shared the land on 6/11/91, how many of these custom owners were given their share. The witness replied that Tamau was given to 3 families. He was asked if the other claimants are right in claiming. The witness says that those he has mentioned have no right whatsoever to claim but that since they have claim, the Court will decided who are custom owners.

The witness is further asked out of all the 6 claimants which of them has business here already. The witness says that, the No.2 claimant with the lease to Asian Paints, and Lauru with Au Bon Marche. Mr Kirikiri Bakokoto made a comment that Tamau land was already divided between Bakokoto, Lauru, Kalparam and Daniel Kalorib. That Yowan Kalsakau was given land by Mr. Kirikiri Bakokoto grandfather too. That even today they still have rows with the original claimant on the land where La Smet is located.

CROSS-EXAMINATION NO. 3 CLAIMANT

The No. 3 claimant once more had a very lengthy cross-examination. Chief Manarewo asked this witness if it is true Lauru come out from Malpakoa and his Chief was Chief Marik Atlangi. He is asked who is currently in Malpakoa in Ifira. The witness says that Leibua and that Leibua's mother and father are Leinasi and Kalpuaso. He was asked who was Kalpuaso's mother. The witness says she is Leitakae. He was asked which family got into Ifira first. The witness replied by saying he does not know.

Mr Kalorib was further ask if the lease on Tamau was administered on behalf of certain custom owners. The witness says it was indeed but that custom owners had always had rows amongst them. The next series of questions relates to the sacredness of Tamau and whether or not Tamau had a sacred water hole. The Court of the opinion that the issue of whether or not Tamau had or has a sacred water hole is not in issue and all claimants seem to say in their evidence that Tamau is in fact a tabu place. Thus the Court does not wish to canvass this issue further.

The witness was asked how many Naflak Naniu are there. The witness said there are 3 but there are different Kokonas. He is asked where was Leitakae from to which the witness says he does not know He was further asked where was Bakokoto from. The witness says he does not know. He is asked if the road Vila/Mele road is the boundary. The witness answered by saying that it is not and that those who claim have been on the other side for ages and they all knew they have portions of land on the disputed land. He is asked if it is true a tribe owns land. The witness replied by saying that is why he claims from his father. He was asked to explain properly succession in Ifira. The witness says that a Naflak or family owns land. He says that the position previously was the reverse of what is being practised today. That before ownership of land was through the mother. That somehow and somewhere in the history of Elate this was changed. That the current position is that male descendants own land and from father to son and so on. He was asked what tribe does this witness represent. The witness says he does not claim alone, he represents the Ifira Community.

He was asked if Chief Taripakoa came out from Kokonas. The witness says he does not know. He is also asked what is the name of Marik Atilangi. Once more the witness says he does not know. He was also asked which Kokonas is Chief Nunu Maprik Mala. Once more the witness says he does not know. The witness was further asked why was it that Tamau was only divided between those whom Chief Kalsakau III gave some land to and is it true that Kalpuaso was also a land owner. Mr Kalorib says in answer that the reason is because the Chief and the people of lfira know that they are the real custom owners. In regard to whether or not Kalpuaso was a custom owner of Tamau or not, the witness says he does not know. He was also asked who sold the land going through from La Smet past the Anglican Mission land to Tagabe. The witness says he does not know and that all he is interested in is Tamau. The witness was once more asked how about Kalpuaso's daughter who owned land on the other side of the road, would the witness say they also have land on Tamau. The witness says he does not know.

The witness was asked if the Original claimant has right to where he has established himself. The witness says just to where his house is but not Tamau reserve. He was asked if Tamau had any custom boundaries. The witness says there was and that each custom owner knows where his or her boundaries are. He is asked why was it that after the lease expired but Tamau was not immediately returned to the custom owners. The witness says that there was a lot of rows between the various custom owners. He was asked if it is a normal practise that a land owner plants coconut on his own land. The witness says it could be true but in reality this should not be accepted as indication of ownership to land. In fact other claimants and their witness are of the view that planting of coconut does not signify or it is not evidence of ownership. In fact the Court accepts the view shared by the various claimants that planting of coconut in a piece of land does not in itself conclusive evidence of ownership of land.

The witness was asked if there was a Nasara in Tamau. The witness replied by saying there was none and that Tamau was only a mosquito infested swampy land. The witness was asked which Kokonas clan does Peter Kaltoli is from. The witness says that Peter Kaltoli is from Tongoa the same as chief Manarewo himself. That a person from Paunagisu village on North Efate can be from the Kokonas does not automatically mean he can claim for Kokonas land in Ifira or in Vila town just because he is a Kokonas. The Court agrees with this witness view in its entirely. The fact that a person comes from Naflak Naniu is from say for example Emae, does not allow him to claim for Naflak Naniu land in Nguna Island. The reason behind this is it would operate to defeat the purpose of customary ownership of land provided for under Articles 73 & 74 of Vanuatu Constitution. Those two provisos are put in the following terms. Article 73:

"All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants".

Article 74:

"The rules of custom shall form the bases of ownership and use of land in the Republic of Vanuatu".

The Court shall explain further on the two above provisions in the summary of the evidence
much later.

The witness was further asked what relationship does the Bakokoto family has with the other claimants and the land in dispute. The witness says Bakokoto farmed there. He is asked if Kalpuaso also farmed on Tamau and the witness says he did but he could not plant coconuts because otherwise he could have stolen land. That Kalpuaso planted coconut on other parcels of land but not on Tamau. The witness is asked why was it that Chief Kalsakau I wanted to sell Tamau away. The witness answered once more by saying there were always rows about Tamau and that the chief got tired of the Bakokoto family having disputes with other people who own portions of land in and around and near the disputed land.

The witness was asked why is it that the original claimant had put the claim up. Mr Kalorip says that it is meet and proper for any persons having any form of interest to claim. He was asked if it is possible for the land Court to over ride the decision made by the Ifira chief and his council. The witness interesting says that it is not so much a question of overriding the council of Chief's decision but it could be in form of affirmation of the Chief's decision only. He adds that, this witness appreciates the action taken by the original claimant and that other claimants should also appreciate this fact.

The witness in answer to a series of questions put to him by Chief Manarewo that was true that sometimes the Chief was sole owner, however this was not true in all cases. That each clan had their own land. That the Chief was only responsible for his people or an overseer. That each clan had their own plots exercising distinct and independent control over their own land. The witness further says that Lauru has land on Tamau. He further says that Kalsakau I got the land from his wife Leimok because all her brothers were all dead. There were many other questions asked by Mr Bob Kalphabun and Chief Nunu Mapirik Mala, all questions were similar to those raised by Chief Manarewo and the Court does not wish to pursue them further.

CROSS-EXAMINATION NO. 4 CLAIMANT.

The No. 4 Claimant asked but a few questions. The witness is asked if the witness is a custom owner of Tamau. The witness confirms this and says that he inherited the land from bubu. He is asked if he is satisfied with the determination made by the Ifira Council of his Chiefs on the 6th November 1991. The witness says that the reason why he came to Court was because the original claimant claims the whole of Tamau. That they have claimed too because they have right to Tamau.

CROSS-EXAMINATION NO. 5 CLAIMANT

Mr Kaltoli asked Mr Kalorib where did the witness grand father farm. The witness says that it is really funny for a person like Mr Kaltoli to question the witness like this since Mr Kaltoli knows well that this witness is from Ifira. Mr Kaltoli commented then asked what was the case of those men who are married to Ifira woman. The witness says that such people do not own anything on Ifira unless given specific rights by a land owner.

On this question, the Court is of the opinion that the witness answered this well according to all the evidence of all parties inheritance of land is only possible by male descendants except there was a special arrangement made for a female to own land. One of the spheres in which the conflict and tension between the claimants is the mode of inheritance. All claimants agree in their evidence that all tribes had a patrilineal system of inheritance with its solidarity stemming from the tire of blood relationship that existed between a group of males who can trace their descendants through male links from a common ancestor and according to all parties in general succession to property at death was traditionally confined to male agnate relatives.

Mr Kaltoli further asked if it was fair for Kalpuaso to sell land in the township of Vila. The witness answered that Kalpuaso had no right whatsoever. That he could sell only if he was a custom owner. He was asked if the Bakokoto family came from Mele. The witness says that he cannot answer for another claimant but what he knows is that the Vanuatu Constitution provides that land belongs to custom owners and their descendants. He adds that, he does not dispute the original claimant claiming, but that this witness should not claim the whole Tamau land.

NO. 2 WITNESS - NO.1 CLAIMANT

Mr Massing Lauru was called as the second witness for the No. 1 claimant. Mr Lauru says that he is from Ifira Island and that he made a joint statement with the No. 1 claimant.

CROSS-EXAMINATION NO. 1 CLAIMANT

The witness was asked if he had told the Court the truth. The witness says that he had not made up any stories. He is asked if it is true Chief Roy Mata instituted the Naflak system for peace but not for ownership of land. The witness says that only men are entitled to own land. He was asked if Lauru was or came out of Malpakoa. The witness said that he does not wish to answer this because he believes his colleagues have answered this sufficiently. He was asked why not settle on the land in 1966. The witness says that even by this time, each of these claimant knew where their plots were. The witness was asked a series of questions to which the witness refused to answer saying they were irrelevant to the issue of ownership of Tamau. It is put to this witness, if this witness and his family have stolen the land. The witness says that he cannot accept the question on the basis that all Ifira Islanders were given notice in 1991 to settle and determine the question of ownership.

CROSS-EXAMINATION NO. 2 CLAIMANT

The witness was asked which families received rents for the period when Tamau was leased. The witness says Chief Kalsakau 1 received rents. He was asked how about the witness's abu and the witness says his abu never received any. On the issue as to who received rents, the witness says, and it is confirmed by other claimants that the reason why Chief Kalsakau I received monies for rents was because he was a Chief and he did it on behalf of custom owners. There is little evidence indeed as to why successive Chiefs received rents for that lease. The original claimant seems to say that the reason was because Chief Kalsakau I was the owner. The rest of the other claimants say that he received rents on behalf of custom owners as custom owners were various and because by this time Chief Kalsakau I had been educated to a certain extent. The witness says in answer to another question put to him that Tamau land belongs to 3 families. Lauru, Bakokoto and Kalparam and that according to Ifira custom and the whole of Efate men only have succession rights to land. That males inherit land from their fathers and that these families he has identified are custom owners.

CROSS-EXAMINATION NO.3 CLAIMANT

Chief Manarewo asked a series of questions relative to the question of ownership and as to who has right to property succession. The Court thinks, this issue has been adequately addressed and it is by now established that ownership of land rests with male agnate descendants. Many more questions asked were repetitions. I do not wish to say anything further on this.

CROSS-EXAMINATION NO. 4 CLAIMANT

Only 3 questions were asked by this claimant to which the witness says are once more confirms that there are 3 families which own Tamau land. They are Lauru, Bakokoto and Kalparam.

CROSS-EXAMINATION NO.5 CLAIMANT

Mr Kaltoli too asked but a few questions. The witness is asked what relationship does the witness has with the No. 5 claimant. The witness says that by custom this witness would call him uncle or father. He was asked where was Lauru from. The witness says from Ifira Island. He was asked if it was right for Chief Graham Kalsakau I and Kalpuaso to sell land. The witness says although the Chief sold blocks of land it is doubtful if the land was his or he could have sold them under his authority as a chief on behalf of various custom owners.

EVIDENCE

NO. 2 CLAIMANT - FAMILY BAKOKOTO

Mr Billy Bakokoto gave short evidence saying that he is from Ifira Island and that he is a custom owner of Tamau land. The statement of this family is read to him. This witness also tendered a number of documents marked "A'', ''B'', & ''C''.

He says in evidence that, he is talking on behalf of Family Bakokoto. He says that in 1991, all the custom owners in Title 57 G asked Chief Mantoi Kalsakau III to get the dispute settled that has existed for a long time so that on 6/11/91 Chief Mantoi Kalsakau III had a meeting with small Chiefs of lfira. They included:

-George Kaltoi Kalsakau - Chief of Naflak Wita.

-George Kano - Chief of Naflak Nawi.

-Tabala Lauru - Chief of Naflak Malu.

-Billy Bakokoto - Chief Kokonas.

That with them were all the whole community Ifira Tenuku. That after a meeting at Farea, they visited the land and they identified boundary marks for those custom owners concern. That within Tamau, there were 3 customs owners identified. They are Family Bakokoto, Family Lauru and Family Kalparam.

This witness further says that it is after this meeting and the identification of custom boundaries, that the family Bakokoto started thinking about developing the land. That they arranged with the department of lands and made their intention known that they wanted to lease some plots of Tamau land to any interested businessmen. That on the 12/12/91 the then Minister of Lands Honourable Daniel Nato issued a Certificate of registered Negotiation to an interested investor and the Minister certified that the custom owners were Edward Bakokoto, Kaltowa Bakokoto, Kaltoli Bakokoto and Billy Bakokoto were custom owners(see exhibits "C").

The witness says there are also other interested developers on the pipeline who have signed lease agreement with the Bakokoto family to develop Tamau and the Bakokoto family to develop Tamau and that the family Bakokoto respect the decision taken by the Paramount Chief of Ifira Chief Mantoi Kalsakau III.

CROSS-EXAMINATION ORIGINAL CLAIMANT

The witness is asked if it was true, Bakokoto came from Tuktuk in Devil s Point. The witness answered by saying that, that is not true. That his grandfather sold land in the Vila town (see exhibit "A''). He is asked if it was Bakokoto was of Polynesian origin. The witness says that the Deed of Sale refers to Bakokoto as a native of Vila (See same doc).

The witness is asked whom does he represent. The witness says that he rightly represent the Bakokoto family. He is asked where was his Nakamal and Nasara. The witness says one day Chief Nunu Maperik Mala took him up to the hills and told him that that was where they originated from. He is further asked if Bakokoto was a custom owner why not dispute since 1930 to 1966. The witness says that the original claimant Mr Naru Kalbeau Kalsakau stood those days as a representative in the Lands Committee who represented the Ifira people. That his questioner represented the interest of custom owners only.

The witness is asked if Mr Bakokoto knows if some people steal land. The witness answered that he knows it has occurred and it still happens. He is asked if the Bakokoto family disputed Tamau land before. The witness says that, the Bakokoto family had much land and one of it is Tamau.

He is asked if the witness knows that Kaltowa & Kalka stole land from other people before. The witness says that, Bakokoto did not come from anywhere. He is a villager of Vila Island and he had a lot of land. He is asked who give his land. The witness says, nobody gave him land. It has been owned by the Bakokoto family since time immemorial.

He is asked if it is true this witness had bribed Chief Mantoi Kalsakau III. Mr Bakokoto says it was not true and that at one stage they gave him a present a sign of recognition of his status as the Paramount Chief of Ifira. He is asked why was it that when his original claimant was chasing the white people away from Tamau why not came to assist him (original claimant). The witness says that, the Chief represented people in Ifira that time. The original claimant was a member of the Lands Committee who represented people of Ifira, he was entrusted with a duty to be for or on behalf of the Tamau custom owners. This witness says that, the original claimant is not a custom owner.

The witness is asked where does he came from. Mr Bakakoto says that Mr Kalbeau is not from Ifira Island but the Bakokoto family are from Ifira Island.

CROSS EXAMINATION No. I CLAIMANT

DANIEL KALORIB

The witness once more asked if he is or the Bakokoto family is the true custom owner. The witness confirms that it is so and to his knowledge his daddy had told him stories that Tamau also had same custom owners. That his daddy had told him that the sight where the new Bon Marche is now, was not his. That it was his abu who gave a piece of land to Yowan Kalsakau. He is asked if there are 4 custom owners or less. The witness says there are 3 not 4.

He is asked if the 3 custom owners know their boundary marks. The witness says that the Bakokoto family know where their boundary line is. He is asked how could he identify this. The witness says that, on the Federation bus stop there was a Nasara tree there leading from there to a little hill across the rubbish dump. That, that was the Bakokoto family boundary.

The witness is asked if it is possible that the road also forms part of the boundary. The witness says, it is not possible. The land commences from either side to the other. The Court agrees with him in this point since the current road is of very recent origin whenever the road was build.

He is further asked if, when Mr Kalpeau was building his house where he is, did the Bakokoto family have any dispute with him. The witness says, Mr Naru Kalpeau should not be where he is but that his abu had advised him (witness) to live the original claimant there. He is asked why not mention Peter Kaltoli Napakaurana. The witness says he did not hear about him.

CROSS EXAMINATION No. 3 CLAIMANT

Mr Patrick Crowby cross examined this witness by saying, was it true that Kalsakau I was a custom owner of Tamau. This witness says that, Kalsakau I was not a custom owner neither was he a man Ifira. That Kalsakau was a son of a woman Eratap called Lale. That Kalsakau I was born from a relationship between Lale and a man from Ambrym.

This witness is asked whether at the time of his inauguration date as Chief was there any custom ceremony involved to show he was then a Chief. The witness says yes there was a big ceremony. He is asked where did the Bakokoto family came out from and where did the Ifira people originated from. The witness says that Bakokoto came out from Woraurua up on the hills and that he does not know where the Ifira people originated from. According to other claimant, original Ifira Islanders originated from Woraurua.

The witness is further asked, who looked after the land before the arrival of the gospel. The witness says that he cannot really tell whether the Chiefs or tribes owned the land. That inspite of this, the Chief was responsible for his people, but tribes had their own land. The witness is asked why did people give customary "sautonga" (gifts or present and in the sense of land was considered to be rents for land used by non customary owners).

He is asked why is it that marriages are arranged with a clan and if it was of any significance. The witness says that, the purpose for arranged marriages with Naflak was to preserve land. That the land is not sold to strangers women were married outside the Naflak. The witness is asked if he knows the Kalpuoso's sons owned land on the other side of the road. The witness says he knew that but it was on the other side and not on that disputed area.

The witness is asked if he knew if Bakokoto sold the land in question in Vila. The witness says that yes he sold land at Kalfu store at the nakamal of the chiefs and that he has document to prove this. He was asked if Napakarum has any right to Lauru. The witness says no they have no right whatsoever.

He is asked who sold land to Asian Paints. The witness says the Bakokoto family did and that when the Bakokoto family inquired at the lands office, they got confirmation that the
Tamau land was reserved for the Bakokoto family and that as only they approached De Previile and stopped him from selling their land. That where the Au Son Marche is now, it is owned by the Lauru family and they are custom owners. He is asked if the Bakokoto family farmed there. The witness says before leasing this land the Bakokoto family made gardens there and they collected the Nagai fruits from their Nagai trees.

He is asked who sold title No. 91, the witness says he does not know. He is asked who was the original owner of Tamau and the witness says that in 1980 and even before that the Bakokoto family was already there. He is asked if it is true that Kalpuaso's house was near Bakokoto's. The witness says that they were together in Bakokoto land. He is asked if does this link have any significance in the family first with Bakokoto and Kalpuaso. The witness says that their relationship was really good but in the case of land claim like this, if the witness says the land is his, that is his land. That ownership of land should not be confounded with family, tires. That his grand father has given some land to some other persons and to date it is their land and as the Bakokoto family respect what their grandfathers had arranged.

The witness is asked if there is any relationship between Naflak and Ownership of land. The witness says that Naflak does not own land. The witness puts an example of a Naflak Wita of Efate, cannot claim land in Tongoa if the land is owned by Wita in Tangoa. On this issue the Court thinks if it is true that a person comes from Naflak kokonas in North, he cannot claim for the Naflak land in say for example Mele.

The witness was asked if Bakokoto was a chief. The witness says he does not know. The questioner makes a comment that Chief Narewo was Malpakoa of the Nasara blong Kokonas. That Bakokoto was a small chief, his chiefly title was Yam. He is further asked if it was true that the Bakokoto alone sold land. The witness says that, that was not true. That according to documents, he sold land with 3 other people of Erakor (see exhibit "A"). The witness further says that the Tamau land was thoroghly discussed by the chiefs in lfira and the decision of the Chief of lfira was made in the village and the chief told the open to the people to dispute his decisions. He further says that the people stood by their custom, they should settle at the Chiefs land. Mr Bakokoto says that unless people are honest.

It is suggested by the cross-examiner that Tari Pakoa was a custom chief of Ifira, that his name was engraved on his tomb stone on Ifira, to today and in the church. The witness is asked if the claimant claims for the area which is also claimed by the Lauru family. The witness says that all the 3 separate claimants claim for what is rightful theirs by custom. The witness is asked if Mr Kalsakau gave the land to Yowan Kalsakau or was it Bakokoto. The witness says Yowan Kalsakau was given land by his father.

The witness is further asked if he knows if there was a lease signed between Yowan Kalsakau and the Kalsakau family ( that is the original claimant) far Yowan to use that land. The witness says that this question is out of the disputed land. That the land belongs to the Bakakota family. That Yowan Kalsakau is still alive to prove who gave the land. The next question was asked did Yowan Kalsakau get the land before Bakokoto got it. The answer is, the reason was because Dr John Kalsakau married to their sister, that was why they were given the land by his grandfather.

He is asked why not claim the other side of the road. The witness says that upon examination of all documents, all claimants are related but apart from these there are other claimants too. That they only claim the land where it is being now developed and that there is no questions about the physical boundaries since all claimants know an identify their boundaries.

The witness is asked if Bakokoto had any relationship with Kalpuaso. The witness says, he cared for the total Population of Ifira. He is asked if the questioner's grand father Kalpuaso was from Epi. The witness says that, that was true. The Court is not so sure what does the witness means when he says "he cared for" all Ifira Islanders. He probably means that Kalpuaso was one Chief too.

CROSS-EXAMINATION NO. 4 CLAIMANT

Claimant No. 4 asked this witness few questions. He asked who were the custom owners of Tamau land and how many families do own it, The witness says that he only knows
that the Bakokoto family own what they claim- not where Lauru & Kalparam family claim. That according to him( witness) there is no other owners. That however Kalparam is at the far end of the triangle, then followed by Lauru and Daniel Kalorib then the Bakokoto family.

CROSS-EXAMINATION NO. 5 CLAIMANT

Peter Kaltoli asked this witness what was this witness to him or what relationship he has with
him. The witness says, the witness would call him uncle because Mr Kaltoli married to the sister of this witness's father. He is asked if the action taken by Chief Mantoi Kalsakau III was unconstitutional. The witness says that the Constitution says land belongs to custom owners and their descendants and that the Constitution stipulates that for all land in Vanuatu belongs to indigenous ni-Vanuatu.

The witness is asked if he ever knew if Napakaurana had any nasara in Tamau land. The witness says he does not know and his abu never told him about any such thing. He is asked if there was an arranged marriage between the Bakokoto and Napakaurana family. The witness says that if Kaltoli's wife came out from the Bakokoto family, the wife has no right whatsoever.

The witness is asked what was the position of a name given to someone outside the family line. The witness says that giving of names do not mean anything at all and for the name Napakaurana came out from the Bakokoto family. The witness is asked if he saw a cousin brother of Tom Kaltutak made garden in 1978 on Tamau. The witness says that the Tamau land had been in dispute even before 1930 then the witness gives brief description of his family genealogy.

He is asked why was it that Chief Mantoi Kalsakau III gave the 3 families land. The witness says that it could be that the chief saw that all the three families were closely related and that according to custom practices, they were the rightful owners so he granted them Tamau. That Kaltoi too has a portion but not within Tamau but outside Tamau.

Then the witness is asked by Court if the Bakokoto family claims the area only, they claim but not the whole Tamau. The witness confirms that it is true and it is the case of all the other two claimants. He says that Kalpuaso was a man Epi and that this is the main cause of land problem in Ifira and Efate that when woman marry they follow their husbands otherwise they cause congestion in question of ownership in a particular clan. That their custom is always that men is entitled to land. He explains to the Court that "Sautonga" in Ifira and Efate means gifts given to a person and in relation to lands the owner of land. He also said for Peter Kaltoli's land is not far from La Smet.

NO. 2 CLAIMANT - NO. 1 WITNESS

KALARIMANU BAKOKOTO

This witness once more gave similar evidence to Mr Billy Bakokoto. Mr Kalarimanu says that
he is from Ifira. He says for his father Kakau had storied to him that his abu (Kakau's father) Manbanga and this witnesses father had worked on the disputed land before it was rented to Mr Harry Ohlen. The witness says his father never went to school to receive formal education that was only his father's (witness) brother used to receive rents. The name of the brother of the father of this witness was Fred Kaltanak. That the rents payable was 10 shillings per year.

He says that when Mr Harry Ohlen's lease expired in 1960, Mr Ohlen gave notice of ceasement of the lease through a letter which was never produced to the Bakokoto family by Chief Graham Kalsakau II. That one day Dr. John Kalsakau came to him (witness) and told him that the land (Tamau) original lease had expired and that Chief Graham Kalsakau was notified however he never informed the Bakokoto family.

This witness says that his father had told him Tamau was belonging to the Bakokoto family.
That this was the reason why when it was found out, this witness and some members of the Bakokoto family went with Dr. John Kalsakau and Yowan Ka1sakau and marked off a piece
of land for Yowan Kalsakau.

CROSS-EXAMINATION

In cross-examination by the original claimant, this witness is asked why not come to occupy
the land then and when did Mr Harry Ohlen started to lease Tamau. In answer the witness says for the land was leased from 1930 to 1960 but the Bakokoto family were not advised until 1968. That he had been an Radio operator going all around Vanuatu and that when he came back, his brother in law (Dr John Kalsakau) told him about this.

He was asked who was the big Chief in Ifira (did not specify for what purposes). The witness said Tari Pakoa then Kalsakau I. He is asked if it was true the Chief shared the land between their people. This witness says that it is not true. Their people and that each individual clansmen had their own land. That Tamau was their land and that they had always had access to it and the Bakokoto family knew it was their land.

The witness is asked if it was true his father was from Tuktuk. The witness says it was not
true. His father was from Ifira and he was Malpakoa. What he would not know is whether Bakokoto was a chief or a small chief. He is asked if he knows anything about Kalsakau l. The witness says that they made a feast at Erakor when the people of Erakor and many people attended heard the history of Kalsakau 1 read out. It was told them at the Feast that Kalsakau 1 was from Erakor.

He is asked what was Bakokoto's Naftak. The witness says he was Naniu or Kokonas. He was asked why was Kalsakau 1 made a chief. The witness says that Kalsakau went to school and was educated-taking the advantage of this he was made a chief by early missionaries. He is asked does he know "Manulap". The witness says he knows them they are 4 different parts with Manulap in the bush. He is asked if the Bakokoto family married with these people from Manulap to Ifira. The witness says that those who married from Manulap were different tribesmen. The witness is once more asked if he knows the Bakokoto family originated from Tuktuk or Devil's point. The witness answered by saying that his father died on 15.7.72 and that his father and grandfather had given him a history of the Bakokoto family origin.

CROSS-EXAMINATION NO.1 CLAIMANT

This witness is asked if his daddy was born in darkness and if it would be about the same time of Lauru. The witness says that it is true. He was asked if he heard Dr. John Kalsakau mentioned that the land belongs to the Bakokoto family. The witness says that he was with Dr. John and he heard it from him. He was asked if by this time the original claimant was already around and the witness says yes. He was asked if Dr. John Kalsakau supported the original claimant. The witness firmly says that Dr Kalsakau knew the Bakokoto family are the custom owners of Tamau.

He is asked if it would be true to say Kalpuaso worked on Tamau too. The witness says that what he knows is that Kalpuaso was working on the other side of the road not on Tamau because Tamau had other custom owners of which the Bakokoto family is one.

He is asked what "matarau" did he come from. The witness says he is "Naniu". He is asked who was the first wife of Kakau. The witness say Toumangararo and he is asked who was her sister. The witness says he does not know. The questioner says her sister was Toumara. He is asked if he knew Kaltanana's father. The witness says Kakau and his brother.

The witness is asked what relationship does Peter Kaltoli has with the Bakokoto family. The witness says that he calls Mr Kaltoli uncle. He is asked how about Lauru; he says he does not know but has close relationship with Leitakae. He is asked if the chief gave land to Kalchichi. The witness says not in Tamau but else where it is true Kalchichi had some land.

He is asked if could Kalchichi claim land on Tamau. The witness says he could claim land but only through Bakokoto because he was brother of Bakokoto,

CROSS-EXAMINATION NO. 3 CLAIMANT

This witness is asked by Chief Manarewo who received rents for Tamau. The witness said his abu Kakau received it and that his brother received it too. He is asked who signed the lease. The witness says Kaltana and the Chief did because the Chief then acted as representative of the people. He was asked if this witness received any documentations to this effect: The witness answers that no he did not.

He is asked if before 1930, there were farms on Tamau land. The witness says it was true and for the development mainly in the form of gardening. He is asked if Lauru was there too. The witness says that yes he was there and he worked on Tamau too. The witness is asked did they do any custom as a sign of their ownership of land. The witness says that practically speaking those who worked on the land could be identified by working together on the land. This witness seems to make a point here. In custom when we talk about customary practices how do we identify evidence of custom. It is the Court's opinion that it is identified by usage and practices of custom. (prevailing in that period of time). This witness is asked if the Vila/Mele airport road forms a boundary and if it is, is it part of 57G. The witness says that he does not think the Vila/Mele airport road forms any boundary but this witness thinks that not any identifications of physical features have relevance to identify of boundaries but that customary plots of land have different names and that is the case with Tamau land with the land where Kalpuaso was working. That men are always owners of land as a custom.

He is asked if there are girls too. The witness says that in these circumstances the father will choose whoever is the first born girl. As far as the evidence of this case is concerned, it is established that man always inherit land but where there is no men child-it is possible for the first born women to inherit her fathers land where there is proof that she is entitled to land.

Once more this witness is asked what Naflak did Bakokoto came from. The witness says that he was Naniu and that he came from the hills up there He was asked if the witness ever saw Kalparam on Tamau and the witness says that he saw them on the first plot near the Au Bon Marche Bus Stop. He is asked if he heard of the name Manusa. The witness says he
heard about the name. He is asked who was chief before Kalsakau and the witness says it was Tari Pakoa and before Tari Pakoa he does not recall. He was asked if Bakokoto ever sell any land in 1880 and if it was true whose land was it. The witness says that he sold his own lands.

The witness is asked who sold the Namburu Reserve land. The witness says he does not know but that Kaalpuaso sold the land where the Anglican Church is now. The witness is asked who formed on the land where La Smet is now. He says family Kalpeau. He was asked what Naflak was Leimok. He answers that she was Nau wita. He is asked if he knew and saw Kalpuaso working on certain land. The witness says he knows where he worked. This witness did not however fell the Court where Kalpuaso worked. He is further asked where was Kalpuaso from. He says he was man Epi.

He is asked why was it that in Efate there was and is still a practice that there are arranged marriages. The witness says that it is a process to preserve the land within a clan so that land does not go to other outside person. This witness is asked where if Paramount Chiefs before
were like Kings who had all the lands under his control and he gave land to his subjects and clansmen. The witness says that, that was not the case. As this witness said earlier in
cross-examination by another claimant that each clan had always had their land. The chief only controlled people and not land. This witness says further that this same practice is still held today.

The witness is asked what was the case with adopted children. Did they have full status of
being sons and daughters of the adoptive parents. This witness seems to argue that children adopted had the same status as male children. This Court had a lengthy discussion on the question of the status of adopted children in the Aneityum land case No. 1/94 Pages 16 at page 19 and the Court said this:

"For purposes of enlightenment on the question of adoption, 1 shall now refers to a U.K legislation, the adoption Act of 1958, (see this one in Halsbury's Statutes of England. Third Edition 17 page 635)

There are two other British legislation on adoption. The adoption Act of 1960 that related to revocation of adoption orders in cases of legitimation that affected Section 26 of the 1958 Act and the Adoption Act of 1968 which provided for extension of the powers of the U. K. Courts and to give effect and determination of adoption orders made overseas. By section 2 subsection (2) of the 1968 Adoption Act many sections of this act now were motified version from the 1958 Act. So that the main components of the 1958 Act do still apply which provisions do apply to effects of adoption orders and which are applicable in Vanuatu by virtue of Article 95 (2) of the Vanuatu Constitution. But section 13 of the 1958 Act provides for Rights and duties of parents and capacity to marry and the effects of adoption. section 13 is in the following terms.

"Upon an adoption order being made, all rights, duties, obligations and liabilities of the parents or guardians of the infant in relation for the future custody, maintenance and education of the infant including all rights to appoint a guardian and( in England) to consent or give notice of dissent to marry, shall be extinguished and all such rights, duties, obligations and liabilities shall vest in and be excisable by and enforceable against the adopter as if the infant were a child born to the adopter in lawful wedlock; and in respect of the matters aforesaid (and in Scotland in respect of the liability of a child to maintain his parents) the infant shall stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock".

And subsection (2) says:

"In any cases where two spouses are the adopters, the spouses shall in respect of the matters aforesaid, and for the purpose of the jurisdiction of any Court to make orders as to the custody and maintenance of and right of access to Children stand to each other and to the infant and the infant shall stand to them in the same relation as to a lawful father and mother".

The Joint Regulations Volumes 1, ll, & 1ll cannot give me any assistance. That being so the legal adoption in Vanuatu would be guided by the above legislation. To me what the above quotations seem to say is that, an adopted child becomes the child of the adopters, and the adopters become the parents of the child, as if the child had been born to the adopters in lawful wedlock and that the adopted child ceases to be a child before the making of the adoption order and that any such person ceases to be a parent of child.

What is the case with customary adoption in Aneityum. Chapter 15 Article 95(3) of the Vanuatu Constitution provides that customary law must continue to have effect as part of the law of the Republic of Vanuatu. What if a custom is say for instance repugnant to the general principles of humanity or for argument shake is inconsistent with the Constitution itself. Most such customs or practices be continued to have effect as part of the law in Vanuatu? I do not agree for the following reasons. First weighing the two concepts of adoption in Vanuatu, the legal and customary. The later concept it provides that a child adopted - particularly a son, does not have the full status of a son in terms of ownership of land and the U. K. concept stated in section 13 of the 1958 British Adoption Act, customary adoption seems to discriminate against those who have been adopted. The legal concepts seems to say one thing while the customary concept say something else. It is my opinion that article 95(3) of the Constitution is not applicable in respect of customs which are inconsistent with the Constitution or Statute or which are repugnant to the general principles of humanity.

Article 7 of the Vanuatu Constitution. Article 7 is put in the following terms.

"Every person had the following fundamental duties to himself and his descendants and to others.

(a) to respect and to act in the spirit of the Constitution.

(b) to recognise that he can fully develop his abilities and advance his true interests only by active participation in the development of the national community.

(c)

(d)

(e) to work according to his talents in socially useful employment and if necessary, to create for himself legitimate opportunities for such employment.

(f) to respect the rights and freedoms of others and to cooperate fully with others in the interests of interindependance and solidarity.

(g) to contribute, as required by law, according to his means, to the revenues required for the advancement of the Republic of Vanuatu and the attainment of the national objectives.

(h) in the case of a parent, to support, assist and educate all his children, legitimate and in particular to give them a true understanding of their fundamental rights and duties and of the national objectives and of the culture and customs of the people of Vanuatu.

(i) in the case of a child, to respect his parents.

It is my opinion therefore that, the customary adoption concept in Aneityum is not in the Spirit of Vanuatu Constitution, because it conflicts with the above provisos of the Vanuatu Constitution. It has been proved in evidence in the Court that Mr Waneig was customarily adopted. So that Francois Waneig has the full right to ownership of land from his adoptive father".

Then this witness is asked an interesting question what is the case of son born to an Efate woman but the father comes from French or else where. This witness says that no way can they be entitled to land if they are born halfcast because they are not descendants as the requirement of the article 75 of the Vanuatu Constitution.

The witness is ask when the Chief makes a decision, does it means his decision is always right. The witness says that in custom and in particular, in matter stating to customary land well and identified the right custom owners without bias, then they are better qualified persons to know who is the owner of this part of land, because they are born in that area, they know the custom better than the Courts and they have lived here for ages.

Another question put to this witness was how was it that, Chief Graham Kalsakau II and
Mantoi Kalsakau III1 seem to have conflict ideas about who is the custom owner of Tamau. The witness says once more that Kalpuaso was a man Epi, that he could not be entitled to land in Efate. Mr Bob Kalphabun commented that, that was wrong. The situation is that Kalpuaso was a man of Ifira but his father was from Epi. To the Court it does not make any difference. According to the evidence in this case, if a woman Efate marries a Tannese man, the male children inherit land of their father, this land would be in Tanna.

This witness is asked if Bakokoto had any land around Tamau and the witness says that
Tamau is for the Bakokoto family. Other families have their land else where. He is asked if he have heard about Marik Atelangi. The witness says he heard of Atelangi. The witness says he heard of him. He is asked if he knows anything about the background of Tari Pakoa and if so, was the name Tari Pakoa a chiefly title. The witness says that he does not know, the witness is asked who would be next custom owner since they are many claimants of Tamau land. The witness says that, the Bakokoto family claim because they know it is their land. That each claimant in the Tamau land had its land elsewhere. Questioner Kalphabun commented that when he was ready to build his house, Chief Kalsakau told him to build his house on the other side where ASIAN PAINTS is now. Claimant No. 2 protested that, Mr Kalphabun is lying because everyone knows that the land where Mr Ka1phabun has built his house is Mr Kalphabun's land and does not extend to Tamau.

The questioner comments that when he was small, he used to see abu Kalamau and abu Kaltana at Ifira. He asked what relationship they have. The witness says that Bakokoto married twice; his first wife was Leimota who is from Ifira that they have a son by the name of Kakau and that Bakokoto was the son of Kakau whose wife was Toumajong. That the first wife died, that Kakau then married a woman from Mele. He is asked where was Chimata from. The witness says she is from Ifira island and that they got married to his abu. He did not clarify who is the abu he was talking about.

The witness is asked if he heard anything about Tari Pakoa gave land to various custom owners. He put some examples as families Kalsal, Kalpuaso, Karen and so on. The witness says that in custom those people were very close relatives however this did not have any bearing on ownership of land. This witness is asked if it was possible for Laura and Kaltoli to put up one clan. The witness says it should be the case, the witness is asked what does he know about "Lakbarubaru". The witness says that it is the place where taro was. He is asked if there were any custom names of Tamau. The witness says, the custom names were Tamau, Tamaso is where the namarai is and the place near the road is Teumutotoi.

The witness further says that, the land was reserved far the Bakokoto first. That the land covers a big portion of land. That the land was owned or administered by De Preville. That the Bakokoto family have just put their boundaries where the cement pegs are located. He is asked if it is true some people have acquired land in Vila are not origin from Ifira. The witness says it is true.

CLAIMANT NO. 4

Claimant No. 4 is always asked fewer questions in this land case. The witness is asked if it was true Tamau had a number of custom owners. The witness says that, that is true and that there are 3 families who are currently regarded as custom owners.

CLAIMANT NO. 5

The witness is asked what is the relationship between Bakakoto and Kaltoli. The witness says that they are brother in law. He is asked if he knows that Kakau adopted his grandfather. The witness says no. He is asked if this witness Fred Kaltana adopted Pakauru. The witness says that what he knows is that Pakauru adopted Fred Kaltana. He is asked if he know anything about Chief Graham Kalsakau signing Deeds of Sale on behalf of the Community. The witness says that it probably occurred in the nakamal with right custom owners and that not just anybody. That Chief Kalsakau signed for custom owners. He did not own the land. The witness is asked what is the Namatara of Bakokoto, the witness says they come from Kokonas.

This witness is asked under what Naniu does the Bakokoto family claim under. The witness answers by saying that Bakokoto was black Naniu and as the requirement of the Ifira custom and the whole of Efate, they follow men or that inheritance is from father to son. The witness says he is no longer black Naniu. That on this basis, they only claim through men through their father.

The witness is further asked what Namatara did the questioner's mother come from. The witness explains that Mr Kaltoli's father was from Tongoa and as such, Peter Kaltoli must claim land in Tongoa. The witness is further asked what is his (witness) relationship to him (Peter K). The witness says that his abu adopted the grandfather of P. Kaltoli Kaltapu and Peter Kaltoli would call him father. He is asked whether due to this kind of relationship did the Bakokoto family and the questioner's family had joint tenancy over the Tamau land. The witness answer that in the Ifira custom, that was not the case and today it cannot be the case because the Bakokoto family and even other people know that the Napakaurana family have land in the PUMASO area but not in Tamau.

The witness is further asked what if it is true that Bakokoto originated from outside of the New Hebrides and only came to New Hebrides in 1832. The witness says that Malpanga's father was Bakokoto and he was born during heathenism and that Bakokoto was born in Efate and he came from Raurau. The witness is asked if Bakokoto came from Malpakoa but not Ifira. The witness says that his abu came from Raurau and Malpakoa.

The witness was asked if the witness knew Kalpuaso. Witness said he knows him. He is asked where did Kalpuaso came from. The witness says he does not know. The questioner puts a suggestion to the witness that Kalpuaso was a man Epi. The witness says no. The witness is asked if he knows that in 1970, there was a dispute over Tamau and the then chief had tried to settle the dispute but he could not so that customary owners were asked to be identified then. The witness says, he never heard of this.

The witness says that but during 1991 when Chief Mantoi Kalsakau III shared the land he was there. Mr Kaltoli asks why was it that the land on ASIAN PAINTS was not shared. The witness says that by then (1991) the only custom owner identified were the Lauru, Kalparam and Bakokoto. That he then gave their land according to their custom boundaries as all the Ifira Islanders were and are all aware of this arrangement. That during that time the land was given them, there was no dispute. The witness is asked why are there many claimants. The witness says that they have right to claim and the Bakokoto family defend the claim because they are custom owners.

It is put to the witness that all other claimants know Napakaurana had land on Tamau, what does this witness say. The witness says that what the chief did in 1991 was just to reaffirm the customary rights that had been existing from time to time. The fact that the Bakokoto family were put near where they are, it was just reaffirmation of ordinary and common knowledge by ordinary Ifira Islanders that Tamau custom owners were three families and it was only right that the Chief reaffirm their ownership.

The witness is asked if Pakauru had land where the new Bon Marche is now situated. The witness says he does not know that & Pakauru did not own land there. That ownership is evidenced by practice. (The witness makes a relevant point about custom & practices and what is law on custom)

The Court asked a few question to this witness. The first question was the Court heard of Tari Pakoa, Marik Atilangi & others which one of them was the Paramount Chief of Ifira. The witness says that Tari Pakoa was the first one. The Court asked when Tari Pakoa was alive did he own land by himself. The witness says that, that is not true. The Paramount Chief had small chiefs who took control of their land. That the Paramount Chief responsibilities were mainly to protect his people in his area and to protect their land. He is asked where was Chief Kalsakau I's mother from. The witness say it is common knowledge that she was from Eratap.

EVIDENCE NO. 3 CLAIMANT

PATRICK CROWBY ON OATH

Mr Patrick Crowby is the No. 3 Claimant. He is also known as Chief Manarewo. He says in evidence that he is a direct descendant of Chief Manarewo Marik Atelangi and Granny Kalpuas. He says he represent the family Kalpuas. He says he claims through his granny Chief Narewo Marik Atelangi. That Chief Narewo started to sell land to early traders since 1827 to 1887. That his son Tamara also sold land in Vila from 1888 to 1908. That when Tavara died his grandson Kalpuas took over from 1888 to 1988. That by 1921 Kalpuas sold land to Mr Marices Goudard who paid him 200 francs and that chief Kalsakau witnessed this sale. That the land sold is where the Anglican Church is now and that this was part of the disputed land Tamau. That this was done before 1920 - 1930.

This witness gives a comprehensive run down of his family tree saying Chief Nareo Marik Atelangi was a heathen chief but he came from Farea of Malpakoa and from Erangororango. That he took the title from Marik Atelangi in 1887, he died in or between 1887 and 1888. That after his death Tavara his son took over from 1888 to 1908 and by which time the first missionaries came around. That during early missionaries time Kalsakau I was taken from Erakor village to be a chief of Ifira because by this time Kalsakau I could read and write.

He says that born to Chief Manarewo and Tourakot was Nareo Marik Atelangi. That Nareo Marik Atelangi and Leioa gave birth to Tarawa, Tom, Nareo and Leitakae. That Leitakae was born in heathen times at Malpakoa but she died in Ifira in 1946. That Leitakae lead a delegation to visit all the farea of Malpakoa in 1944. Nearly all claimants disagreed with this suggestion saying that by 1944 Leitakae was very old and could not have walked up the hills by then. That Leitakae was accompanied by Donald Waimai and Tousourouki.

That Tavara, Tom and Nareo had no children. That Leitakae got married to Alick Akel and was born to them Kalpuaso, Leikafe, Ngise. That they gave birth to Malthurine, Emma, Leioa, Leinasei, Lydia, Alexine, Leitangi, Moses and Shem Manusa Kaltatak Napekaurana. That Emma and Maximo gave birth to Maria Tourakot who got married to John Crowby who then gave birth to Patrick Crowby. That Leitakae and Autete gave birth to Kalowan and Willie Kalmelu had no children. That born to Leitakae and Lai was Kalangisu who had no children.

He says that the disputed land Tamau or Damau has a secret place called TEMASO with its creek or stream of water also sacred. That this sacred river originates at Matakapu in
Erangorango but it is all under ground river coming out at TEMASO and goes down again and comes out at the seashore at MATAWAKA near TABAKORO. That in Temaso there is a woman called Leisemu a red snake, very short with foggy tail and if you see this snake you will certainty die. That Leiseau has a body guard of 10 men with fire on the side of Anabrou and another 5 at Malu. That body guard is called Toarualima.

Mr Crowby says that the disputed land goes past SMET down to the river and includes the land on which the Anglican Church is now situated, he says before. 1920, this was the same land. That the 1800 survey shows this was a the same land and that where Smet is now, Kalpuaso made gardens there and this is evidenced by Coconuts planted by Kalpuas. That before 1915 they had planted coconut and namambe. He says that from the location of the original claimant plot to Au Bon Marche nobody worked there because Harry Ohlen had fenced the area for his cows until 24 January 1930 when the land was handed back the Court to the Ifira Community.

He further says that past Au Bon Marche bus stop, Kalpuas also farmed there toward Manples and also planted coconuts some of which are still here today. That on the side of the road, this is evidenced by the fact that Kalpuas sons & daughters have taken up residence there. That the boundary is only created by the Vila/Mele.

That on the other side of Mr Kalpeau Kalsakau's land, the land where the Anglican Mission
is was sold by Kalpuas to Goudard back in 1921 naming the land Tawara after his uncle who died in 1908. That the disputed land is part of the land Teguree which was sold by Chief Nareo Marik Atelangi & Manusa on the 2nd of March 1882 to Mr John Higginson. He says that even though Chief Mantoi Kalsakau III divided the land in dispute to some of the claimants in 1991. He says that in reality Kalparam's land commences from the other side of the road down to Tamau. That this is the same with Lauru family. He says that Kalpuas family believes that Tamau is theirs too on the basis that Kalpuas sold the Anglican Mission land and Tamau belongs to them too.

That the disputed land is connected and part and parcel of the land in Anabrou or Laknaporo which chief Nareo Marik Atelangi sold to James Row in 1874, and that this same land is connected to grand grand grand son of Nareo Marik Atelangi to built his house on. This witness says and gives many reasons why he thinks the land belongs to their descendants.

He also says amongst other things that Kalpuaso's widow Leikave received compensation for the Vila/ Mele road, damages done to the gardens. She was paid $ 115.00 on 12/12/1961. He further says that in early 1950 Emma Leioa and Mathurine who were Kalpuaso's daughters left Ifira and came to the land where they settled. That today it is evidenced by their grand children living on the same plots of land. That it is the same with Bob Kalphabun and Charley Ayong the grand sons of Kalpuas.

The witness further says that, all that land was owned by Kalpuas. He says that to tell the Court the truth the land now occupied by Kalorib (he did not specify which one) was Kalpuas Cocoa. and coconut plantation, but that the chief of Ifira had wrongly given the land to them. That Vanuatu had attained independence and it was the time for finding out who are real custom owners. He says that in reality the Kalpuaso family own a big portion of land today with evidence of remaining coconut trees.

That the land starting from Farea to Lake Mango to Malulap, all this land was belong to Kalpuas and today this land is occupied by Kalpuas grandsons that were Kalman Kalsal was given to them by Chief Taripakoa. That when Chief Kalsakau 1 became chief of Ifira in 1908, he used his chief's powers to lease the land to strangers but never gave the monies to rightful land owners. He says that this is known by a lot of people in Ifira.

He says that when Chief Kalsakau 1 died in 1950, his son Graham Kalsakau took over and became Chief of Ifira. That chief Graham Kalsakau II did exactly the same as his father did, he withheld lease payments, got this money and built himself a house. That Kalsakau II told this to Kalpuas daughter Alicksen who had approached him about this matter. He says that he is happy about the Constitution that gives rights to men and women and that justice should be restored to such malpractices that has been around in land dealings in Vila.

That when the claim came through in 1923, Chief Graham Kalsakau II told people in Farea that Kalsakau has no land there, he says that Damau land is in a triangle and it is in the centre of Laknaporo which was sold by Chief Nareo to Mr James Row in 1874 and Pakaroa once more sold by the same chief in 1882 and Teguere sold once more by chief Nanu and Manusa the same year and that Damau is the same land that Kalpuas grandfather Chief Nareo Marik Atelangi sold parts of since 1872 to 1887.

CROSS-EXAMINATION - ORIGINAL CLAIMANT

The original claimant had very lengthy cross examination. He was asked who gave the name Chief Nerewo to this witness. The witness says the name was given to him by chief Nunu Maprik Mal. and it belongs to their Naflak Naniu. The question suggested that there is a confusion because in the last claim, four (4) parties claim under the name Narewo and how can this witness explain this. The witness says that he is the real person to be named Narewo. He was asked what was Tari Pakoa to Kalpuas. Witness says Kalpuas was Tari Pakoa's uncle and the brother of a female Leitaka. The original claimant asked why was it that Kalpuaso was not made a chief, the witness says that Kalperoso was still very young that time that there was no possibility for him to succeed Tari Pakoa. The witness was asked who was the witness father and where did he came from. The witness says, he was John Crowby. The questioner disagreed and put to the witness that the witness's father is from New Caledonia. The witness says that if it was true that John Crowby then adopted him. The questioner disputes this witness authority as a chief and says that in order for a person to be made a chief a custom ceremony must be made for ordination of person otherwise recognition is minimise in absence of a public customary procession that such ceremony have to be witnessed by old people in the village. It must be evidence by killing of pigs and so on. He was asked if Leitake came from up the hills somewhere. The witness says he does not know the history of the Original claimant.

He was asked who was Leitakae's father. The witness says Narewo Marik Atelangi. He is asked if it is true that Chief Tari Pakoa was related to Leitakae. Witness says it is not true. He was asked why didn't the Manarewo family settle on Damau land by or between 1930-1966. The witness says there has been disputes since that time and since the land reverted to the Ifira community, they did not wish to move or to interfere by entering the land. He was asked why was not is that they did not talk about the land. The witness says they respected the chief, but they knew it was their land. He was asked who was Kalpuaso's father. The witness says it was Alick Akel and he was from Epi. He was asked why do they claim. The witness says that he does not claim under Alick Akel but Kalpuas. He was asked what is his basis in Ifira. The witness says that Chief Kalsakau III is the overall chief. Apart from him chief Nunu Maprik Mal is their tribal chief and that he does not know who gave the chiefly title to Taripakoa.

The witness further says that Chief Taripakoa had authority to sell land to his subjects and when chief Marik Atelangi gave land, he did it under his authority as chief. The witness was asked where was Leitakae from. The witness says from Tongoa, a chiefs daughter and a Naflak Kokonas that had gone out from Efate to the Sheperds. He was asked in Efate custom who should own land. He further asked who was the sisters and brothers of Leitake. The witness says that Nareo, Tom and Taripakoa. The witness say that male agnate descendants are always entitled where there are no males, women or daughters may be entitled. That special allowance was made to cater for situations where there was no sons at all. That in all their case, Kalpuas had no sons but he had the right to give land to his daughters if he wished.

The witness is asked if it was true Tamau is Narewo's land. The witness says it belongs to Kalpuas a descendants of Narewo. The witness asked under what right and the witness says by authority of Marik Atelangi. He was asked if he had heard of Lauru come from Malekula. He is asked about the Kalparam family, the witness says this family worked on this land and on the other side. He was asked about Peter Kaltoli. The witness says he does not know if Peter Kaltoli has anything to do with this claim. The questioner commented that the Anglican Mission land was sold to the Mission by 1964 by Mr Harry Ohlen. He suggested that documents obtained by this witness would have been falsified and are not real documents. The witness comments that they have taken their lands from the Land Records office and they are well presented. That is open for anyone to have access to them at anytime. He was asked if it was OK for man Epi to have ownership right to Ifira land. The witness says that it would be OK if he has been around for sometimes.

In reality, this witness and due respect to what he says, seem to contradict the system of ownership in Efate. The evidence so far establishes that male agnate descendent are entitled to ownership of land. It is established that they have a patrilineal and patriarchal with its solidarity stemming from the tire of blood relationship that existed between a group of males who can trace their decent through male links from a common ancestor and that succession to property at death was and is still today traditionally confined to male agnate relatives.

In cross-examination the original claimant asked which Kokonas does Mr Crowby came
from. The witness says the tribe of Leitakae. The questioners commented that Mr Patrick Crowby's origin would be from Wallis Futuna. That if that was the case why accepting the
appointment of chief for that claim. The questioner seems to say that both this witness and Chief Maprik Mal are not from Ifira. The witness was asked to elaborate on a statement that where a person planted coconut on any land, does that mean he is automatically the owner. The witness says that he is of the opinion that if a person planted coconut that is his land. This Proposition is opposed by various claimants on the basis that planting of cropping did not always, signify ownership and often arrangements was made with landowners to plant coconut even though he was not the owner.

The witness was asked who was Manarewo. He says he is the father of Nareo Marik Atelangi that the meaning of Nareo is Nabanga (a banian tree). He was asked what does Marik Atilangi means. The witness says it means a light shining in the darkness. He is asked what languages is the name in. The witness says it is Efate. The original claimant says that the name is not in the Efate language. Thewitness further asked where did Marik Atilangi came from. He says that he does not wish to answer the original claimant. He is further asked who is the mother of Nareo and who was his wife. The witness says Nareo's mother was Tourakot and his wife was Leovia. The original claimant even suggested to the witness that the name Narewo Atelangi was invented by this witness and Chief Maprik Mal. The witness says that it is not true.

The witness was asked who was the husband of Leitake. He answered that Alick Akel was.
The original claimant says that it is not a legal marriage as they lived in a de facto relationship.

CROSS-EXAMINATION NO. 1 CLAIMANT.

The witness is asked if he knew that Kalpuaso was an adopted son. The witness says that it is true he heard that Manrea adopted Kalpuas. He was asked why was it that Manrea was not at all mentioned in the evidence of this witness. The witness says that it was because Manrea was not part of Kalpuas family. That if there was no actual adoption who was the step sister of Kalpuas. The witness says he does not know. He is asked if he can tell the Court how many pieces of land did Kalpauas sold. The witness says only one. That if so did Kalpuas had any Deed of Sale to that effect. The witness says yes. The questioner puts to this witness that was it true that his cousin had worked in the Ministry of lands records office in Vila. The witness says it was true. He says his sister finished in 1988 but he does not know when his cousin finished. He was asked if Kalpuas planted coconuts on Tamau. The witness says not on Tamau but on the side where la Smet is now situated. This to the Court is fully outside Tamau.

CROSS-EXAMINATION NO.2 CLAIMANT

BAKOKOTO FAMILY

The witness was asked which particular portion of Tamau land is this witness claiming. The witness says that since the original claimant has claimed for the whole area, he claims the whole of the triangle 57G. The family Bakokoto further asked where is Kalphabun from. The witness says he was a man Efate but his father was from Epi and that he does not know the name of Kalpuas father and that even so, they claim because the Constitution says that land belongs to the custom owners and their descendants.

CROSS-EXAMINATION. NO-4 CLAIMANT

The question raised by this claimant seem to be similar to the question put by the Bakokoto family. I do not wish to say anything further.

CROSS-EXAMINATION NO. 5 CLAIMANT

PETER KALTOLI

Mr Kaltoli asked this witness why is that this witness father is not from Efate and under what right in consideration of customary practices does he claim land, this witness might not be from Efate. The witness says he claims under Kalpuas name and not his father. Peter Kaltoli seems to indicate that to have some close relationship with Laitake. Peter Kaltoli suggest that if this witness is allowed to pursue his claim it is total contradiction of the spirit of the Constitution and the customary practice of Efate which practice provides that male descendants are entitled to inheritance of land. The witness says that it is possible for some one to claim the whole Tamau but that the No. 5 claimant has no claim whatsoever to Tamau. The Court also asked question much similar to questions already addressed. I do not wish to deal with this further.

NO. 1 WITNESS.: NO. 3 CLAIMANT

The first witness for chief Manarewo was chief Nunu Napriki Mala. He made a vary short statement saying the reasons why he is called as a witness for chief Manarewo is because he knows that chief Manarewo's grandfather Kalpuas sold a piece of land next to the disputed land. That it is logical to say that because of the fact that on the other side of the road is occupied by members of Kalpuaso's family and because of the fact that he sold the Anglican Church land, it would be logical therefore to say that Tamau was part of Kalpuas land. He says the father of Leitakae was Nareo Marik Atelangi. That he came from Rangorango.

In cross-examination by the original claimant the witness says his mother was Leises and her father was Edward and Edward's mother was Tousuruk and that Tousuruk's father was Malkovi. The original claimant commented that in fact this witness and himself do come from the same blood line. The witness further says that his father was Samson from Erakor village that he himself have his land in Erakor. The witness says in answer to a question put to him that he is a descendant of Nareo. On another question put to him by the original claimant to the current position of Kalorib's house and if that witness thought this was Kalbun's land. Kalbun is said to have bigget Leivia & Leimok. The witness says he was small however he saw Kalpuas working there (not the disputed land) but that he does not know if it was Kalbun's land. The witness says for what he knows is that Kalpuas sold the Anglican mission land. That Leitakae is the sister of Sawyer and Tom. The witness was also asked about his name, if he just made the name up. The witness says that it is a big and tribe name. That Nunu Manaperik Mal is a strong name that he (witness) did not wrongly take the name for himself. The witness also says that according to custom male descendants are always entitled to the inheritance of land.

Another interesting point this witness touches in cross-examination is that to himself, his sons are entitled to his land in Erakor village but under certain circumstances this can be changed and woman may at times claim inheritance of land. He was asked if it is true Nereo is a Polynesian name. The witness says that is not because their custom is passed from generation to generation and their Nereo means Nambanga (banian) tree that all he knows is that Kalpuas sold the land.

CROSS-EXAMINATION: FIRST CLAIMANT

The witness is asked where is he from. He says he is from Erakor village. He was asked what relationship does he have with the Kalpuas family. He says that the relationship was through Toumarana was the sister of Manareo. He says that he saw coffee trees growing on the disputed land however he does not know whose was it. He further says when he was small he never heard about Lauru. The reason is probably that the name was not used often. He was then asked how did he know if Lauru was from Malekula. The witness says it was because he heard it from an history that as read by Mr Barak about Ifira & Erakor villages. He says in answer to another question that Kalpuaso was working on the other side of the Vila/ Mele airport road but not on the disputed land.

He also says that it is not true that when you plant coconut, you automatically became a land owner. He was asked if what is the case with Kalpuaso. The witness says that it was true but because the real land owners never chased him away at the first place. The witness was further asked what does he understand about customary adoptions. The witness says that it is a relationship whereby when a son is adopted he relinquishes his rights to his natural parents and he may have right to ownership of land. That in some instances, reservations are made depending so much on arrangement between natural and adoptive parents.

CROSS EXAMINATION NO. 2 CLAIMANT.

This claimant also asked how many custom owners were there to the disputed land when
chief Mantoi Kalsakau III shared the Tamau land. The witness says that there are four of them. The Lauru, Bakokoto, Kalorib and Kalparam families and that they claim the whole Tamau area. The witness was asked if he accepts the decision of their current chief. The witness says that he is aware of this however the Constitutional rights claim land as they (witness & No.3 claimant) are descendants of those whom they claim under the witness goes on to say that the original claimant is making a personal claim and it is not a representive claim as the No. 3 claimant has.

The witness also said in answer to another question that when he was a works foreman for a building construction they ( witness & his men) started to built a house for Naru Kalpeau when the Bakokoto family came and stopped him and the carpenters from proceeding with any further construction. That he also knows that Bakokoto came from Rango rango. He was asked if anything was grown on Tamau. The witness says that there were grass and swampy land and that it was occupied by cows. That besides he only saw coffee but no coconuts. He was further asked if he could confirm if there were any coconuts on Tamau. The witness says there were no coconuts at all.

CROSS-EXAMINATION KALPARAM FAMILY

The witness was asked if he knows how many custom owner are there to the disputed land. The witness simply says that these are, Bakokoto, Kalpeo, Yowan Kalsakau, Lauru and Kalparam are real custom owners of Tamau. He was asked if he knows if Kalparam was from Ifira or not. The witness says that he was a man Ifira and of the big Naflak Naniu.

CROSS-EXAMINATION NO. 5 CLAIMANT

This witness was asked where was his father and grandfather from, The witness says that they are from Erakor village. He was asked why is it that he has to claim for the woman side. The witness says that, according to the Efate custom male agnate descendants only have succession right but that he has come to support this claim from the woman side. He was further asked if his grandfather was from Samoa. The witness says interestingly that, Leitonga was married to a woman from Samoa then she was married to the Chief of Erakor village and born to them was a girl Serah, whom Kalkot got married to and born to them was Sualo.

The witness also admits that, when he was in Samoa, the Sualo family in Samoa made a
very long customary ceremony as a sign of origin of the Sualo family now in Vanuatu. The questioner says that why was it that this witness knowing fully well that he is from another country why must he claim. The witness says that he does not claim for himself alone but for his clansmen and that his clan is right and women cannot be completely ignored.

The witness was asked to confirm if Tusuruk was the son of an illegitimate father and the witness agrees. He was asked if this witness have seen or known any Napakaurana family
working on Tamau. The witness says that the place or land ware the claimant No. 5 is now
is his land but that the disputed land belongs to other custom owners. He was asked if
Kalpuas planted coconut on Tamau. The witness answered twice confirm what he did said
earlier to the first and the 4th claimants that Kalpuas did not plant any coconut on Tamau.
That it was truth he planted it on the other side of the road. He says that the fact that they have claim is their Constitutional right and the Court will only the one to give a decision on the question of ownership. That it is not up to him to decide this question.

NO.3 CLAIMANT/NO.2 WITNESS

KALTAU AYONG ON OATH:

The second witness for the No. 3 claimant also gave a lot of evidence. He was cross-examined later after his statement as read by the Island Court Clerk. This witness says that he is the witness of the family Kalpuaso. That the family Kalpuaso is a direct descendant of the Paramount Chief of Ifira, Nareo Marik Atelangi was the true custom owner of Tamau land. That the people who are currently working on Tamau are not land owners. But his grandfather Kalpuaso was a native of Ifira and he farmed on Tamau. He says that when he was a small boy, he used to go to gardens made by his mother Emma and Maturine on Tamau. He says he is a grand son of Kalpuaso and that he has his family working on the other side of the road near where ASIAN PAINTS is. That Kalpuaso had land surrounding the Tamau land so he should be entitled to it.

There were many questions asked in examination in chief - I do not wish to canvass that since there has been a lot of repetition on those questions asked.

ORIGINAL CLAIMANT EXAMINATION

This witness was in the same manner cross-examined by the original claimant and that the witness says that Lakbarubaru was not owned by Tarimata Kalsakau. That this is completely false and that Kalsakau sold land belonging to many people in Ifira and sold them to the whiteman. The original claimant says that why is it that as many as 6 claimants claim under Nareo. The witness says in their case they claim under Nareo Marik Atelangi. That Tamau land was belonging to Nareo Marik Atilangi but chief Kalsakau I signed on behalf of Nareo Marik Atelangi and chief Kalsakau stole monies of lease of Tamau: Once more many questions asked were once more repetition of what either others have asked to in all cross-examination or previous claimant's evidence.

CROSS-EXAMINATION/NO. 1 CLAIMANT

No questions asked.

CROSS-EXAMINATION N0.2 CLAIMANT

The cross-examiner commented that this witness does not know what he is saying and he has not told the Court the truth. He had no further questions.

CROSS-EXAMINATION NO. 4 CLAIMANT

The cross-examiner says that he does not have any questions.

CROSS-EXAMINATION NO. 5 CLAIMANT

Mr Kaltoli asked this witness what if the father of this witness was a Chinese can he customary claim on land in Ifira. The witness says he claims under the name of his mother's father. The Court can't accept this concept since it is established that the method of land holding were patrilineal and patriarchal. The witness also says in answer to other question that monies or custom monies were given to this witness clan for the land commencing from La Smet to the old bridge right beyond Tamau. In answer to another question, the witness says that it is true that woman can own land. The Court asked this witness question after the re-examination why was it that Chief Kalsakau I had no land. The witness says because chief Kalsakau III told the Ifira people in the nakamal that Kalsakau III had no land whatsoever. He was also asked if Alick Akel or Kalpuaso had any land in Epi. The witness answers that no. There is non even today. He was asked also who was his father. The witness says Charley Ayong.

NO. 3 CLAIMANT - NO.3 WITNESS

MARIA TOURAKOT CROWBY

The No. 3 witness identifies herself as Maria Tourakot Crowby and she is the daughter of Emma Kalpuaso. That she was born on Ifira Tenuku on 23/10/1940. She says her mother Emma was the daughter of Kalpuas. She says Kalpuaso was the son of Leitakae and that Leitakae then was the daughter of Nareo Marik Atelangi. That because of this family bloodline they came to support Chief Patrick Manarewo.

That when she was small she lived with her grand parents in Ifira chief Kalpuaso and his wife Leikave Ngise. She says that Leitakae was the daughter of chief Nareo Marik Atelangi who sold the land under dispute. She says that Kalpuaso had 3 brothers, Willy Kalmelu, Kalwamo and Kalangis. That these gentlemen were not married and had no children. That they were these people who assisted in her up bringing and that Leitakae named her with her name Toukarot because the name belonged to Leitakae's female granny who was the mother of chief Nareo Marik Atelangi.

She says that she knows the history of land belonging to Kalpuaso since she was with Kalpuaso they went together with her to Kalpuaso drying copra on the disputed land. That she was with her grand parents for some 10 years in Ifira before she started her education in Port-Vila. That even attending school in Port Vila she used to go back to Ifira to see Kalpuaso and Leitakae over weekends and holidays. She says Kalpuaso and Leitakae died in 1955 while Leitakae in 1961.

She claims that all the land where Kalpuaso used to use in were around nakafika, the frontage of Manples. That that was where they used to cut copra and cocoa at. That coconut was planted by Kalpuaso but cocoa was planted by her uncle Sham Napakaurana Manusa. That on this land Mathurine's banana trees can still be seen today. That Kalpuaso planted coconut on Nakafika area to where Bob Kalphabun is today. That the area also covers the portion of land where Daniel Kalorib has built his house. That this land stretches out over to where La Smet is.

She further says that the existing Mele road from La Smet down to the bridge was owned by Kalpuaso and Kalparam who agreed to the Condominium Government to build the road there. That near the Anglican Church granny Kalpuaso farmed there. She concluded by saying this according to her grandparents history, the disputed land belongs to them too as it was the same land stretching down towards the tabu place Tamau.

CROSS-EXAMINATION ORIGINAL CLAIMANT

In cross-examination by the original claimant, she was asked when did chief Manarewo sell Tamau. The witness says he sold it in 1800. That she only went with her granny to farm where La Smet is and beyond. She was asked if Kalpuaso ever farmed on Tamau. She says that by this time the land was already sold to the whitemen but she says it is the same land stretching from the other side of the disputed land. She was asked what year did Kalpuaso was born. She answered somewhere in the 1800. She was asked if she knows that Kalsakau farmed on Lakbarubaru. She answered he worked on the other side near Manples. She is asked if she ever heard of Manrea. She says that Manrea went to Queensland, he came back with Alick Akel the father of Kalpuas. That upon arrival, they stayed with Chief Nareo Marik Atilangi.

The witness is asked who is entitled to land according to Efate custom. The witness says woman are since their sons form a Naflak. This answer raised bitter opposition from both Peter Kaltoli and the original claimant who both said that strictly speaking in Efate land belongs to men. The witness said that really the law must not neglect women. That custom is defined by the behaviour of the people. That there were no boys, woman got land. She was asked if Kalpuaso father was from Epi and she says yes. The witness is asked why not claim for land in Tongoa. The witness says she can and when at times they go to Tongoa, they are well respected.
,

CROSS-EXAMINATION/NO.2 CLAIMANT

The family Laura had no questions to ask.

CROSS-EXAMINATION/NO.2 CLAIMANT FAMILY BAKOKOTO

Billy Bakokoto asked the witness in cross-examination if all the claimants are somehow or other related. The witness says that is true. That if it is true why came to Court on this land. Bill Bakokoto commented that if Kalpuaso's father was a man Epi it was wrong for him to own land in Efate. The witness commented that Kalpuas mother was still from Ifira and Kalpuas had right. She was further asked if she knows if Bakokoto was the rightful owner of Tamau. The witness says she does not know. Mr Bakokoto commented how could it be that even this witness cannot tell who is the rightful owner of Tamau. The witness says she only knows that the road is not a boundary. That she also admits that Kalpuaso was a son of man Epi.

The witness is further asked who was her father. She says that her father was Maximio
Fakatika from Wallis and Futuna but that she was also born of a woman and a women and man are equal human beings. She was asked why not claim for land in Wallis and Futuna. The witness says she claims under the Constitution. It was suggested to her that, she has wrongly claim as Leitakae's father was Lovilovi. The witness says no that it is not true and there are different Narewos and their claim is based on Nareo Marik Atilangi whose son is Kalpuaso whom they now claim under. The questioner commented the claim by No. 3 claimant is a mixture of claimants who may have their own rights and claims. That these group of people merely claim under their grandparents without special claim and their claim is too general. He put an example of Chief Nunu Maprik Mal who is also known as Alick Sualo, Bob Kalphabun, Kaltau Ayong and Patrick Crowby all come from different background with different origins. The witness commented that although they have different names they claim under descendants Nareo Marik Atelangi.

CROSS-EXAMINATION/FAMILY KALPARAM

The witness was asked what right did she have to claim under Nareo Marik Atelangi. The witness says because those persons were their grandparents, so they claim under them. The questioner disagreed on the basis that this is nothing less than a contradiction of their Ifira custom providing for ownership of custom land. The questioner says that Kalpuaso must not claim for land in Ifira and on Vila since he was the son of a man Epi. The witness protested saying Kalpuaso had full right too. According to the Court she must justify and qualify her statement.

CROSS-EXAMINATION/NO.5 CLAIMANT

The witness was asked who was his father and where was he from. The witness simply say his father is from Futuna and his name was Maximio Fakatika. She was further asked how many times did her mother get married. She said once. However the questioner commented that this is a complete lie since he knows that the mother of this witness got married twice, the second time was to Harry Harold from Tongoa. The witness is asked why not claim for land in Tongoa. The witness gave in answer to this question that she claims under Nareo Marik Atelangi. She also says that she knows that the father of his apu Kalpuaso was from Epi by the name of Alick Akel.

NO. 3 CLAIMANT/N0.4 WITNESS

BOB KALPHABUN ON OATH

This witness sets a basis for his evidence by giving a short history of their basis in Erangorango village. He simply says that in 1944 Leitakae took two of his sons Kalmelu & Kalwamo and some members of their clan to Erangorango their old village to see their Marae of Malpakoa. That there they were able to see a namele tree, a stone wall and so forth as evidence of their origin. That round this place too Edward Crowby built his house there. That in the Malpakoa in Ifira this is where their family make gardens and Leipunu a grand daughter for Kalpuaso still lives there today. That it was at this Malpakoa in Ifira that his auntie Laikave the widow of Kalpuaso accidentally set fire to all the Tam tam, back in the 1940s. That Leitagi Kalpuaso's daughter is still alive today for confirmation of their history.

He says that the disputed land is 57 G and is part of the land that Manusa and Nareo sold to Mr Higginson in 1883. That this land was sold by chief Atelangi and his son who was also a chief and chief Taripakoa shared the land to their people in Ifira. That the Bakokoto family had a parcel of land in Tebakor area going through Better Price Store, that family Kalsal have theirs near the disputed land. Families Kalsawi and Kalparam have theirs near Hong Shell and Federation which is now occupied by the Lauru family because of their relationship with Kaltutak and Kalsawi.

He goes on to say that as it was a custom that a Paramount chief had all land a special area for him, the disputed land is for the family Kalpuaso. That the parcel of land that commences at the back of Malulap hill was occupied by Alick Kalmelu, Kalpuaso's grand son. That Kalwayo also had a pineapple garden around there. That this was the place sold to Rev. J. W. Mackenzie to build a church. The foundation of this church is still being seen today.

He further says that the Vila/Mele road is not a boundary and Kalpuaso family land extends right to Tamaso, the boundary of Laknaporo is Tekere that in title 57 G. That the disputed land is an acute triangle. That it was Kalpuaso who sold part of title 91 to M. Goundard witnessed by chief Kalsakau 1 in 1921. He says that the disputed land today is owned by family Kalpuaso's mother Leitakae. That only daughter of paramount chief Atelangi whose Marae was Malpakoa both in Erangorango and Ifira.

He says Chief Tarawa Tom later became Chief Taripakoa, Nareo Junior and Leitakae all came out from Masai from Erangorango. That they got established in Ifira Islands a new Massai was formed the 2^nd Marae Malpakoa of Ifira. That within that Malpakoa in Ifira there is no Bakokoto, Lauru, Kalorib, Peter Kaltoli, Kalsakau and Kano. He further says that Chief Tari Pakoa died on December 8^th 1908 and that because there was elements of whitemen control and the missionary influence, that a leader should be a person knowing how to read and write. Rev. Mackenzie appointed Kalsakau 1 a teacher from Erakor was made a chief of Ifira. He says this was not custom as a custom chief hereditary all along until that time. This witness says the judgment of 1930 gave the disputed land back to the people of Ifira as a community and that it was probably during that time that Chief Kalsakau 1 arranged with Mr. Harry Ohlen to lease Tmau to Chief Kalsakau II. That it was only in the region of Kalsakau 1 that family Kalphabun, Kalorib Daniel came through to where they are now and as recent as 1966 and 1972 because Kalpuaso's offspring where daughters and that when one of Kalpuaso's daughter Leinasei died in 1972, she spoke out strongly to chief Graham Kalsakau that the disputed land was belonging to chief Atilangi.

He further says that in 1921, Kalpuaso sold to Mr Goudard, Toura title no. 95 part of Tamau. That in 1903 chief Tvara also known as Taripakoa exchanged with Mr. Boyer the land near the old bridge and gave land to Boyer the land known as Tankaroa near the airport and the other side of the river. That that land belongs to chief Taripakoa (Tawara). That in 1905 Chief Taripakoa sold land to Mr Norama Mackenzie on the other side of the river near Kalpuaso's coconut plantation, That Tore is their custom land and does not belong to Naflak Nawi. He further submitted that the disputed land belongs to chief Atelangi because chief Atilangi, chief Taripakoa (Tavara), Tom (Nareo) Junior and Kalpuaso came out from the same family tree.

There were a lot of question asked in examination in chief. I don't wish to cover it.

CROSS-EXAMINATION ORIGINAL CLAIMANT

This witness was asked in cross-examination how old is this witness when Kalpuaso and Leitakae were around. The witness says he was born in 1941 and by that time he was a big boy already. He was asked who plants coconut in land. The witness says in answer that it would appear that land owners do and if a person owned much land he would lease it. The questioner protested that these coconuts was by then newly imported into Vanuatu and it was not a customary cash crop. He was asked what was his opinion on 4 parties claim in the 1993 Marobe case. The witness says that he claims under Nareo Marik Atilangi of Malpakoa in Erangorango.

The witness was asked who told him that Lauru originally came from Malekula. The witness
says his mother and aunties did. He was asked what was the real name of Taripakoa. The witness says Tawara. That Kalsakau l came from Eratap village. That questioner further commented that this witness was from Mele village. The questioner asked many questions to the witness, but the witness refused to answer saying they were all repeated questions and he did not wish to answer.

CROSS-EXAMINATION/NO. 2 CLAIMANT

No questions asked.

CROSS-EXAMINATION/NO. 4 CLAIMANT

This claimant asked questions almost repetition of previous questions already asked.

CROSS-EXAMINATION/NO. 5 CLAIMANT

The witness was asked what was his fathers name and what relationship did he have with the questioner Peter Kaltoli. The witness says, his father was Charlie Kalphabun and to him (witness) Peter Kaltoli was an uncle and that according to custom, Leipakoa and Leikau
were sisters from Tongoa island, He was further asked if it is a mistake not to claim under the father. The witness says that he answered to that question already.

CLAIMANT NO. 4

Claimant No. 4 is the Kalparam family. This claimant also presented the shortest evidence in this case course, the family only had one witness Mr Harry Bakokoto. The evidence of this claimant is that according to the history of Tamau land, this family claims part 57 G near Pakaroa. The witness says that his family is the custom owners. That his Naflak (clan) is called Black Naniu and his history reaffirms what is and has been known to every land owner in Ifira. The statement says that, the disputed land namely Tamau has been disputed land namely Tamau has been known to have fewer families or clansmen. They are family Bakokoto, Kalparam, Lauru and Kalorib.

This statement says that these four clansmen come out from the same Naflak out from their
grandfathers. That the land which the Kalparam family claims is situated on the South of Manples and the east side of Saratokara and on the North side of the land leased by Kalua James Lauru to Au Bon Marche and that the West side of the main Vila/Mele road (see here map on 57G on the commencement of 57G from Vila to airport).

The witness says that on the 6/11/91 Chief Mantoi Kalsakau III and his council of chiefs of Ifira and the Ifira Community went to the disputed land and the aforementioned chief subdivided the land to the families aforementioned. That it was during this date that Chief Kalsakau III also told the people that, family Kalsakau have no right whatsoever to claim over the disputed land. The statement also says that since the original claimant has claimed as an original claimant, the original, claimant should meet the costs of all deposits paid by them and any administrative costs should also be met by Mr Kalbeau Kalsakau.

In cross-examination the original claimant asked Mr Harry Bakokoto what part of the land do the Kalparam family claim and whether the Kalparam family ever worked there. Mr Harry Bakokoto says that, he saw the Kalparam family worked here and in reality, they worked on the shaded portion of the map. That it was chief Graham Kalsakau who even told this witness that the portion now the Kalparam family claim has always been for the Kalparam family. The witness is asked if he knows that Kalsakau was from Ambrym so as Harry Bakokoto. The witness says that he heard of this but is not so sure if that is true or not. He is asked who was the father of Kalparam. The witness says that his father was Lueni. He is asked who was Lueni's father. The witness says he does not know. He was asked whom does he represent. The witness says that he claims on behalf of his wife, because there were no boys or brothers from his wife. He is asked who is entitled to land, and the witness says that always men are entitled but under circumstances where there are no male agnates then women are entitled. He is asked if he heard of Narewo and Marik Atelangi. The witness says he has heard of them.

CROSS-EXAMINATION/NO.1 CLAIMANT

There were no questions asked but Mr James Lauru raised a point saying that the Lauru family have no questions accept to say that the Lauru family accepted the Kalparam family and that they are custom owners of Tamau.

CROSS-EXAMINATION/NO. 2 CLAIMANT

Mr Billy Bakokoto puts to this witness in cross-examination how is it that there are people
already on Tamau. That La Smet is on the corner, that the original claimant, Yowan Kalsakau, then the next part is what the Bakokoto family claims which part is it really that they claim and wether or not the current chief of Ifira had decided this issue. The witness says that the matter was already decided by the Ifira chief. He is asked if he claims for his wife's portion and the witness says yes, that is why he is in Court. He is asked if they have title to their parcel and the witness says that is true. The No. 2 claimant submit that he has no further questions but says he accepts the Kalparam family and they are recognised custom owners of Tamau.

No. 3 CLAIMANT

The witness was critically cross-examined by chief Manarewo. The witness is asked what is his name. In answer he says he is Harry Bakokoto. He is asked what was his father's name and where was he from. The witness says his father and mother are from Ambrym. He is asked what relationship did the witness father have with Bakokoto. The witness explains that he was born in 1943, and soon after he was born, he was given to a sister by the name of Racheal, an expatriate and that after 3 years of her contract she asked the sister of Kalorimanu Bakokoto if she wanted an adopted son. The sister of Kalorimanu accepted this arrangement then that the parents of this witness were consulted and when told about this arrangement the sister of Kalorimanu took him (witness) to Ifira and that a customary adoption was then agreed to. That customarily, chief Kalsakau 1 and II gave recognition of this customary adoption and accepted this witness as a man Ifira and that he was given land by the sister of Kalorimanu.

This witness was further asked where was Luen from (Kalparam father). The witness says he does not know. He is asked was Luen Naflak Naniu. The witness says he was Naflak Kokonas. He is asked what is the custom name of Tamau. The witness says he doesn't even know it but there is a tabu place. He is asked if there are no male descendents to inherits land. The witness once more confirms what has been said and over and over again that the inheritance was straight to a daughter & daughters depending on the arrangements made. That in any other case males are entitled.

The witness is asked of wether the parties should be bound by the chief decision made on 6/11/91. The witness says that if a chief says something the parties should respect his decision. He is asked how come this witness is claiming. The witness says that he claims on behalf on his wife. The court thinks there is more to this. The fact that a chief who knows custom better than a Court says something makes an order, people must respect it. He was grown up in that island and he knows the history of customary ownership of land better than anybody else.

The witness was asked if he is lying and does not know what he is talking about. The witness says that, all Ifira Islanders know Tamau belongs to the 4 clansmen family Bakokoto, family Lauru, family Kalparam and family Kalorib. He is asked how could this witness prove the boundary. The witness says that people know their boundaries even where there are physical features. This witness once more makes a point. Where there are no physical boundaries, customary land owners know by memories where their boundaries are and is taught to them from generation to generation.

The questioner asked the witness what does he understand about the term descendents. The witness says that descendents could mean close families and it could also evidence of those who are not from Ifira. For the purposes of highlighting the meaning of descendants, the Court must look at the definition of the word. I will canvass this in the summary of the evidence.

He is asked who gave the land to the Kalparam family. The witness says that, nobody gave it to him, he owned it by himself. He is asked if Kalparam only had possessory rights or not. The witness once more says, Kalparam owned the land by himself.

CROSS-EXAMINATION/CLAIMANT NO.5

The witness is asked who was his father and where did he come from. The witness says that he answered the question in the morning, referring to the No. 3 claimant to which the witness gave an history of how he become customary adopted by the Bakokoto family. The questioner commented that Kalparam came out from the Napakaurana family from Ifira. The witness was asked why is it that the witness's father coming from Ambrym and how is it that this witness claimed for Ifira land. The witness says that, he does not claim for himself but claims on behalf of his wife. The witness is asked if he cared and looked after Kalparam when he was sick in 1966-1967. The witness says that by that time he had not married and he had no obligations whatsoever to care for him that time.

He is asked if he knows that Kalparam had a strong relationship with Napakaurana. The witness says that he does not know this. He is asked whose land did this witness built his house on. The witness says that, the land belong to the Bakokoto family and does not belong to Napakaurana. The pigs were fed there, but the land does not belong to Napakaurana. He is asked if the witness father Thomas (the questioner must be referring to his adoptive father) was a comment that, because this witness does not know the history well, the witness is misleading Ifira Islanders. The witness once more said he claims for his wife. He further says that if a person comes into Ifira and is given land by the chief or anybody from Ifira, it is always important that people are made aware of that. The Court asked this witness is it true that chiefs must be knowledgeable in the customary rights and boundaries. The witness answers yes. He is asked what right does he has if he was adopted. The witness says that he thinks he has right to own land for discussion of adoption see my judgment on the Aneityum case, pages 16 to 19). The Court further asked this witness who adopted Kakau. The person Kakau refer to must be the same person referred to in the family Bakokoto claim.

The witness says something quite rightly when he answered a Courts question what right does he has on as an adopted son. The witness says that customary adoption must be evidenced by all people. If he was given land, the natural brothers or sisters of the adoptive father must respect him on his capacity as an adopted son. He says that in his case, the natural brothers fully support him and even their children call him papa. The Courts thinks that what he is saying here is that, there must be evidenced of an adoption and it must be known to all. That a son has been so adopted. Once more the witness makes a point here. Customary adoption should be evidenced by say for example, a custom ceremony or where there was no ceremony the chief must know and all his subjects, that, that person has been adopted. In the case of this witness, there is evidence that he was customarily adopted.

EVIDENCE NO. 5 CLAIMANT

PETER KALTOLI NAPAKAURANA.

Mr Peter Kaltoli Napakaurana says in his statement that his father and his father's descendants had absolute ownership of the land Tamau and Lakbarubaru. He says Napakaurana and his family were original and true custom owners of the disputed land. He says Pita Kaltoli Napakaurana was the father of his grandfather. That the name of this witness grandfather was Tari Kaltutaki Napakaurana represents one big customary chief of the hill of Rangorango in old times and that this history has been told to them from mouth to mouth until today.

CROSS-EXAMINATION ORIGINAL CLAIMANT

Peter Kaltoli is asked in cross-examination who was the person by the name of Napakaurana and who was the last person with that name. The witness says that Napakaurana was a title name given to Namatara Black Naniu and that the name originated in the Naflak Naniu and that name was given to him by his abu Kalsak and Kalpuaso. He says that because he was the first born he was given this name. They were Naflak Naniu and Napakaurana was previously a chief of Kokonas.

He is asked what was his father name. The witness says he was Tom Nawemai Kaltuki Karan. He is asked what was his daddy's name. The witness says he was Nawai or Nalwae. This is a little confusing now since the witness does not name a particular person to be his father. From what this witness says he may probably have several fathers. The witness was asked who has right to the land. He says always men.

He was asked who was Leitakae's father. The witness says they lived about the same generation and the father was Lovilovi. He is asked if Tari Pakoa came before Chief Kalsakau I. The witness confirms this. He is asked if the witness could give an indication of the date or time of the reign of Tari Pakoa. The witness says about the time of arrival of the first missionaries. He is asked if before Tari Pakoa was there any other big chief. The witness says there was none but the Naflak had small chiefs that each Namatara had one.

He is asked what was Tari Pakoa Naflak. The witness says Nawita. He is asked if it is true that in 1944, abu Leitakae walked the hill of Erangorango. The witness said it was not true that by this time Leitakae was vey old and she could not even walk. He says that this must be false. The witness is asked to define Tamau. He says that Tamau has a long meaning in custom. That it means liberation or the ocean vapour raising or the sun rays. That it means the two meeting of two rivers. That it means ocean. He is asked what does the witness know about his (witness's) Namatara. The witness says it is not static but it moves following marriages.

He is asked if he knows that the original claimant was on the land in 1966 upwards and does the witness know if the original claimant chased the whitemen from the land during colonial days. The witness says that he was fully aware of this situation until independence 30th July 1980. That by or after independence, people started to have talks over the land already. The witness says that, all these times, they knew they were custom owners. But that the father of the original claimant defended the land so as the original claimant vigorously on behalf of the custom owners. Otherwise it would have been declared a public land.

He is asked what relationship did Kalpuaso and Narewo had. He says in answer that they had a kind relationship but not by blood. He is asked who is a last direct blood line. He answers that George Kal is and in addition there are some in Ifira Island. He does not highlight who these others are. The witness was asked where was Kalpuaso from. The witness simply says he was a man Epi. The witness is asked was Narewo and Manerewo Marik Atilangi the same person. The witness says that he is not really sure of wether he was the same person with several names or not and this he cannot give a firm answer. He is also asked where were Lauru and Bakokoto from. This witness says Lauru probably came from Malekula as some people say and Bakokoto was from Mele but they are from Ifira Island now.

The witness is asked about talk that Kalpuaso is said to have shipped a quantity of coconut seedlings from the Sheperds to Vila and planted them on Tamau. He is asked what is the witness's opinion on this. The witness says that, it was true he got coconut from Emae and two wives from Tongoa but that Kalpuaso never planted coconut on Tamau. It was true that he planted them near the agriculture area. The witness is asked what happens if one person plants coconut on the land of another person. The witness answered this rightly by saying that planting of coconut tress, does not signify ownership of land. It could be a sign of other customary practice. He put an example as for identification.

He was asked if Tari Pakoa was a brother of Kalbun. The witness says they might have been cousins but they had a strong relationship. He also said it could be possible they were two brothers. He is asked was Tari Pakoa a title name. He says he was a high ranking chief but he would not say wether the name was chiefly title or not. He is asked who is Rebecca. The witness says she is the sister of his father. He is asked who was his uncle. The witness says Makaure. He is asked who was Chief Pakauru. The witness says he was a custom owner of land too and that he owned land up the hills. He was in the Bakokoto family tree, the name of Pakauru appears that what does this witness say about this. The witness expresses concern that he does not agree with them because Pakauru adopted Kaltana. He is asked were they brothers and once more the witness says they were brothers but not by blood. The Court understand that they would be cousin brothers only. That Pakauru was a small chief and he was from Raurau village up the hills. He was asked where is Raurau village situated. The witness says near Rangorango.

The witness is further asked what connection does Pakauru had with the Tamau land. The witness says his relationship started here with Napakaurana and that Pakauru worked on the land known as Tamas. He is asked what were the relationship of Kalsavi, Kalpram and Kalpuaso. The witness simply says that from the woman they had a close relationship. The custom owner was Napakaurana.

CROSS-EXAMINATION NO.1 CLAIMANT

The No.1 claimant asked the witness when did he changed his name into Napakaurana. The witness says that he had been known by this name since he was in school and that when he got married in 1952, he had the name already. He was asked if does the name Napakaurana appear on the Marriage Certificate and the witness says that the name appear on the Marriage Certificate are Peter Kaltoli. The witness was asked what is the witness Naflak. He says he is Naniu. He is asked if he knows and remember Karan. The witness says he was his uncle (witness). He is further asked who was Karan's father. The witness says that he only knows Lauru.

The witness is asked did he start the claim for Tamau. The witness says since Chief Graham Kalsakau II started talking about the land in 1972. He is asked if it was true the witness father planted coconuts on this land. The witness says it was not his father but his abu. The questioner makes a comment at the end of his cross-examination that Peter Kaltoli is also a custom owner. As to this comment he does not clarify what was that Peter Kaltoli was not given land by the Chief when the land was divided up in 1991. According to the other claimants, Peter Kaltoli owns land near Tamau, but not on Tamau.

CROSS-EXAMINATION/CLAIMANT NO.2

The No.2 claimant asked the No.5 claimant if this witness has any land in Vila town. The witness says he has some land. He is asked if Kalpuaso would have had any land in Vila town. He says in answer that no. Hi is asked if he knows Bakokoto. The witness says he knows him. He is asked if Bakokoto was a male. The witness says he was a man of the tribe of Bakokoto. The witness is asked how old is he. He answered he was born in 1920.

It is put to him why are there 3 families claiming under Napakaurana's name. The witness says that they all come out from the same relationship. This is in history. If there are 3 different persons claiming under the same name then there must be a mistake somewhere and someone should not claim unless they really prove their relationship with Napakaurana. The questioner commented that he is so suprised to see that chief Napakaurana, Rassel Napakaurana and chief Peter Kaltoli Napakaurana can claim under the same person. The witness commented that there were many Napakaurana's that chief Napakaurana was the one that he now claims under was a high chief.

The witness is asked where is this witness land in Vila. He says that this land was in Black sands and some plots in Vila. He is asked if it is true on the side of the bridge (an old bridge and the old Mele road) Peter Kaltoli has land there. The witness says it is true he has. The questioner answered that the witness is lying and this witness's family has been given their land already. That the land in dispute does now belong to the Napakaurana family. That the manner under which the land was allowed to the 3 or 4 claimants was proper as all parties were given sufficient notice and that they respect the chief's decision.

CROSS-EXAMINATION NO.3 CLAIMANT

The witness was asked what as the meaning of Napakaurana. The witness says it is a title of one Matarau. That it means nabanga wood (banian tree) and that "Napekau" means a person who looks after his tribe and Rana means an area. He was asked where was Napakaurana's nasara. The witness says it was at Rangorango. He is asked if Tamau is this witness nasara. The witness says yes. He is asked where did Napakaurana originated from. The witness says that he originated from Malpakoa in Rangorango. He is asked what is the meaning of Tamau. The witness says it means the misty appearance or a meeting place of rivers. He is asked when did early missionaries came to New Hebrides. The witness says it would have been in 1870 and it was the most recent ones but the earliest ones would have been around early 1700.

The witness was asked who was Taripakoa. The witness says he was a high chief. He was asked whether Tari Pakoa was a little name and who was his wife and sister. The witness says he does not know. He was asked if Tari Pakoa had any sister and brothers. The witness says they were Kalobun and Laivia or Levia. He was asked if it was true Leitakae's father was Lovilovi and the witness says it was true. He was asked if Napakaurana sold any land in town. The witness says it is not on record. He asked again if Napakaurana had sold any land. The witness says no he did not. He was asked if Tari Pakoa sold any land. The witness says he would not know. He is asked if Narewo also sold land. The witness says he does not know. He was further asked if the witness knows that Kalpuaso sold the Anglican Church in 1921. The witness says yes he knows. This statement is far from the truth since the witness says he was born in 1920. Being a baby by 1921 how could he have possibly have known this. He could have probably meant that when he grew up he learnt about the sale of the Anglican Church land. The witness says that all he knows was that Pita Kaltoli planted coconuts on Tamau in about 1800.

It is put to this witness if Kalpuaso planted coconut on Tamau. It is also put to him that Napakaurana is a Shepherd name. To these questions the witness says that he disagrees with both suggestions and to that to accept such suggestion would be misleading. The witness was asked if Nareo and Marik Atelangi were different persons. The witness says he was one and the same person. He was asked if there was only one Nareo and the witness confirms this. The witness was asked if Lauru was from Malekula. The witness said that it is true. He was asked where was the original claimant from. The witness say he is from Erakor village.

CROSS-EXAMINATION NO. 4 CLAIMANT

The witness was asked who was Kalsavi and what was he to this witness. The witness says he was the brothers of Peter Kaltoli and Kalsuvi was the witness grandfather. He is asked if he knows Kalparam. The witness answers yes and that he calls him uncle or (papa). He was asked why does he follow Pakauru rather than his father. The witness says because he was an uncle of this witness's father. He was asked again what relationship did this witness has with Pakauru and the witness says that he was the uncle of his daddy.

1ST WITNESS / NO.1 CLAIMANT

NATO TAIWIA

The above witness is the first witness for the No. 5 claimant. This witness says that he believes that his uncle Peter Kaltoli is a real custom owner of the disputed land. He says that when he was a small boy, he used to go around with his mother around Tamau land and his mother use to tell him that, they are custom owners of Tamau. That his mother is the sister of Mr. Pita Kaltoli. He also says that Napakaurana was a straight man Efate who came down from the hills of Woroula in Efate. He says that according to his own researches, he finds that Bakokoto was a man Mele but he is surprised to see why they have to claim in the land belonging to the Ifira Islanders. He further adds that the reason why they have claimed is because they believe that the Vanuatu Constitution provides that the land belongs to the custom owners and their descendants.

CROSS-EXMAINATION ORIGINAL CLAIMANT

The witness is asked if he could be more specific in what particular part of Mele Bakokoto came from. The witness says in Tuktuk (as from evidence of earlier witness, court understands that Tuktuk is somewhere near Devil's point). He is asked who told him about this history. The witness says it has been handed down from generation to generation. He was asked if it was true that his mother told him all the history he has given to the Court. The witness says it is true. He says that his smaller brother Pakoa Taiwia made gardens there. He was asked where did Pakoa Taiwia made gardens. The witness said near where Yowan Kalsakau is now. He was asked what does he know about Makauru and Pakauru. He answers that he adopted Kaltanak Charlie Kaltabau.

He was asked if he heard of Tari Pakoa and the witness says yes he was a chief. He is asked if he knows that by 1966 the original claimant started to talk and chase the whiteman and the witness replies that he knows of all the actions and that he also knows that Naru Kalpeau Kalsakau was in the Ifira Land Committee. He is asked if there was coconut trees on Tamau. The witness says that he was born in 1956 and he would not have seen them by the time he had grown up.

CROSS-EXAMINATION NO.1 CLAIMANT

No questions asked.

CROSS-EXMAINATION NO.2 CLAIMANT

Mr Billy Bakokoto asked this witness what is the witness relationship with him. The witness says that from the witness's father's side, Billy is an uncle to him. He was asked where was this witness when Chief Mantoi Kalsakau III made the decision to divide the Tamau Land to the 4 claimants. No answer is given to this question. He is asked where or which particular side does Mr Kaltoli claims. The witness says they defend the whole of Tamau because they believe that Pita Kaltoli is also an owner.

The witness is asked if Bakokoto came from Tuktuk. The witness says that that is the way he understands it. He was asked if does the witness know anyone from Tuktuk who would confirm to the Court if Bakokoto has land in Tuktuk. The witness simply says that it is not his business. He was asked if the Ifira community has any land. Committee. The witness says they have but it is good they have come to the Court. The witness tenders to the Court a letter (M. F. I "A") from Chief Mantoi Kalsakau which contents shows there were disagreements between these claimants that was why they chose to come to the Court.

The questioner comments that according to Pita Kaltoli, the name Napakaurana was given to him by Bakokoto. This witness says that the name was given to the No.5 claimant by his father. It is established in the evidence of the No.5 claimant that, the name Napakaurana was given to him by Bakokoto. That according to their custom, they have the Karan or Laura family, Kalparam & those others who have claimed.

CROSS-EXAMINATION NO.3 CLAIMANT

No.3 claimant also cross-examined the witness does it make any sense if a person gives an history to his genealogy some 5 generation back right down to the 1700 or 1800. The witness says he does not wish to answer this question. He was asked if Langi was a true son of Kalsavi. Once more the witness says he does not know so the questioner says that Leasi was the wife of Pakauru and they adopted Kaltanak. He was asked if Pita Kaltoli Napakaurana was a true brother of Kalsavi. The witness once more says he does not know. The questioner suggested to this witness that Langi was a true or real blood of Kalsavi but he was a 3rd generation of Kalsavi. The witness says he disagrees with this suggestion.

The witness was asked who was the father of the No.5 claimant and whether he had land in Malpakoa in Ifira. The witness says the No.5 claimant's father was Pita Kaltoli. That he did not have land in Ifira but his brother had. He was asked if Napakaurana sold any land in Vila. The witness says he does not know. He was asked if he had heard of Marik Atelangi. He is asked how about Tari Pakoa. The witness says him too. He was a chief but he does not know whether the name was a chiefly title.

It was put to the witness he can't plant coconut on land if he was only given to plant vegetables. The witness says it would depend so much on arrangements between the land owner and the settlers. It is suggested to this witness that what Pita Kaltoli had said in evidence was false about the Napakaurana and the land does belong to Kalpuaso. The witness says it is not logic to conclude this way.

NO. 4 CLAIMANT

No questions asked.

CLAIMANT NO. 6

Claimant no. 6 was Pierre Nikara of Mele Village. The Court outright rejected and refused to accept this claimant into this claim since he did not lodge his claim within the time requirement under the Island Court Rules (see order 9). The court wish not to says anything further on this claimant.

SUMMARY

In summary of all the evidence of all claimants, it is very interesting that all parties claim that Tamau land belongs to them. Each claimant has produced evidence of each own and called witnesses. In fact this is a representative claim. The Court believes that it has thoroughly canvassed all evidence concern in the matter before it. You will all note that, the Court has not touched your family trees due to two reasons. First and foremost is that there was no dispute amongst all claimants on or about family trees or genealogies that were tendered.

Secondly, in a Court of law where an issue is not disputed it is generally accepted that parties have no contentions over that particular issue.

Many of you have referred to Chapter 12 of the Vanuatu Constitution Article 73 is put in the following terms:

"All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants".

Article 74 provides and I quote,

"The rules of custom shall form the basis of ownership and use of land in the Republic of Vanuatu".

First of all the Court wish to define the term "descendants". This term is not defined in the Interpretation Act CAP 132 which means that then Court must look somewhere else for its literal meaning. The Collins Concise Dictionary gives the following meanings:

"a person, animal or plant when described as descended from an individual, race, species or something that derives from an earlier form".

In another dictionary Shorter Oxford English dictionary, Volume 1, descendant is defined this way:

"descending or originating from an ancestor or one who is descended from an ancestor"

The Collins Concise Dictionary gives the meaning of ancestor as:

"a person from whom another is directly descended or a forefather".

What do these definitions mean in the context of Articles 73 and 74 of the Vanuatu Constitution. To the Court Article 73 of the Constitution cannot be read alone and interpreted by itself. In fact Article 74 simply says that the rules of custom must then form the basis of ownership and use of all land in Vanuatu. It is the court's opinion that Article 74 is practical in the sense that it enhances the rules and customary practices in Vanuatu to be applied consideration of custom land. Articles 74 makes allowance for custom to be used as a means to guide customary ownership. Article 95 sub article (3) throws further light on this concept. This proviso is in the following term:

"Customary law shall continue to have effect as part of the law of the Republic of Vanuatu".

Customary law is the opinion of this Court mentioned here is a custom of practise that is not inconsistent first with the Constitution of Vanuatu or a statute then that custom must not be repugnant to the general principles of humanity and as such, such a custom must be in harmony with the current and prevailing practices in a particular island or region.

In the case before this Court, all parties have given evidence touching ownership of land on Ifira and Efate as a whole. It is established by your evidence that property succession rests with male agnate descendants. That is a son inherits land from his father. Your evidence has also established that in very rare cases a female may inherit land but it is also established that the later be evidenced by custom. I have thoroughly examined the evidence of all claimants in this claim. It took the Court a lot of time to study the evidence of the Original and the No. 3 claimant because the volume of evidence they gave was so immense so much so that reading through once would not make sense to the Court. This was one of the delays in handing over the decision in this case.

The evidence of the original claimant, No. 1, 2, 4 and 5 say the claim from their forefathers. The evidence of the No. 3 claimant is they claim from women descendants. To this Court there is a possibility that all the claimants on this disputed land are owners of Tamau land. To take this view requires cogent evidence of practice. The strength of the evidence in this claim is that you have a patrilineal system of property succession. As I have mentioned, the Court was at pain when weighing your evidence since this case relates to the application of your custom.

As you all know custom is unwritten law as compared to the English concept of Common law system readily available in principles so easily identified since it is in Volumes of books and it is written eg, in law reports. One of the difficulties that the Courts face in determination of custom is where and how to find custom. Interestingly custom law may be traced by producing evidence to how a particular custom has been practiced in the past or where a practice is prevailing in a particular area. To this Court, how do we find custom is to look at a particular practice prevailing in a particular community and where everyone in a community have practised or experienced that particular behaviour it is generally accepted as custom.

Let the Court tell you this, that the better person to judge your custom would be you yourselves. You each know who should not be entitled to Tamau. I must say now with gratitude that we have in this Nation a Constitution and the laws that provide for checks and balances in your country. So that at the end of the day, if you are not happy with the determination of this tribunal, you have the right to appeal to a Court of higher jurisdiction. In a land claim like this, your custom determines who is and who is not a custom owner. Such custom also determines who inherits land from his father. Your evidence also establishes that in very rare cases a female may inherit land but that the latter be evidenced by custom. The strength of the evidence in this claim is that you have a patrilineal system of property succession. The Court has properly weighed all the evidence in this case. Let the Court tell you this that the better person to judge your customary practise and to interpret it would be yourselves. You all know who must and who is not entitled to inherit the disputed land. Because of what I have said, the Court is of the opinion that it should not disturb the determination made by the current chief of Ifira, Chief Mantoi Kalsakau III and his council of chiefs on the 6^th of November 1991.

This Court therefore declares the following declarations by way of affirming the chief's decision:

1) The Court declares that Claimants No. 1, 2 and 4 are owners of their already identified parcels of land within Tamau. This declaration is not made in the sense of co-owners but each of the aforementioned claimants in this declaration knows where his plot of land is.

2) That land development already started be now continued.

3) That the winning parties shall meet all costs of these proceedings. The total cost involve is VT 165, 000 due and payable within 3 months. 30 days to appeal.

DATED AT PORT-VILA, this 13^th DAY of March, 1995.

S. LENALIA
Senior Magistrate