Japeth v Frazer [2013] VUMC 1; Civil Appeal Case 03 of 2013 (10 July 2013)

IN THE MAGISTRATE'S COURT
OF THE REPUBLIC OF VANUATU
(Appellant Jurisdiction)

Civil Appeal Case No. 03 of 2013

In the matter of Potun Nasara on Uripiv Island

BETWEEN:

LEKUM JAPETH
First Appellant

AND:

MAKLIN MALBURY
Second Appellant

AND:

JOHNSON FRAZER
Respondent

Coram: Magistrate A. M. Laloyer B.
Justice Kalman Hapsai (Assessor)
Justice Maxwell Arnamu (Assessor)

Counsels: Mr. Yosef for First Appellant
Mr. Tevi for Second Appellant
Mr John. Frazer - Representative of the Respondent

JUDGMENT

1. This is an appeal against a decision of the Malekula Island Court issued on 28 March 2013.

2. The Appellant Court heard the matter on 23 July 2013 and referred the matter back to the Island Court for determination of the following issues before a different set of Justices:

a. Whether or not the first appellant had been adopted from Potun nasara?

b. Whether or not the letter issued by the institution of Malvatumauri to declare the first appellant as the paramount chief of Uripiv Island was properly made?

c. Whether or not the first appellant's alleged pig task should be considered by the Court?

d. Whether or not each party can establish the circumstances, events and authority of each person named in their family tree?

e. Whether or not the second appellant is the right person to claim paramount bloodline and not the first appellant?

f Whether or not under customary law a paramount chief can move back and forth from a settlement to a nasara or is it required that a paramount chief shall only remain in his nasara?

g. Whether or not under customary law a paramount chief can claim a paramount right without performing a namangi?

3. The Island Court having considered the issues, delivered its decision on 28 March 2013 and ruled as follows:

a. Johson Frazer is the Chief of Potun nasara.

b. Family Lekum is the Small Fire (small Chief) of Family Frazer inside Potun nasara.

c. Maklin Malbury was struck out as a party.

4. The Supreme and the Island Court established numerous precedents in respect of the general customary law that control how a chief or a supreme chief are able to be establish on Malekula.

5. In Manie v Kilman [1988] VUSC 9, Chief Justice Cooke set out the right of a chief and its customary land:

"It is clear to me that the custom of Malekula is that the persons who first arrived on the land and built a Nasara there, even though they moved later, for some reason or somewhere else, they are true customary owners of the land".

6. The principle was further expanded Magistrate Macreveth in Awop v Lapenmal [2007] VUIC 2, where the Island Court stated at page 3 and 4 that:

"It is common trend that the first person to explore, live and control a land boundary would eventually become the original chief of the territory. This chief on behalf of his tribe or family would normally be referred or regarded by the public as the original custom owner of the land. The tribe which forms the land owning unit is normally based on blood relationship, meaning, they are all related by blood, having descended from an original ancestor. This family unit would be regarded as the big faea having a single bloodline. In practice, the first person and his family to arrive at the disputed land and build a nasara they are the custom owners of the land. It makes no difference whether they left again for some reasons, they would be designated as the custom owners.

The Paramount Chief has control and authority over his land boundary. It is a political monarchy type of organization whereby the supreme chief normally exercises authority over his subordinate chiefs residing within his land territory. Any incoming tribes accepted into the area would remain under the control and authority of the principal chief. After exchange of custom processes, such a clan may be allocated a parcel of land specifically for subsistence use only. He would be allowed to take part in namangi ceremonies and other custom processes in the land. But, such event cannot entitle such individual chief to claim ownership over the place of performance. All subordinate chiefs also referred to as smol faea are accountable to the head chief in respect of every social affair.

Chiefs (small chiefs) are usually nominated on the basis of custom values, wealth, bravery and other common characteristics. The land owning chief and his subordinates would all have nakamal and nasara. A man earns his chiefly title or name by way of performing a namangi (magi) or pig killing ceremony. The common chiefly name is Mal, Mel, or Mulon a naming word that would procedurally be received by a man at an ordination during a magi feast. There are different stages of status in hierarchy for a chief to acquire. Pig killing ceremonies would normally occur at nasara. The first ever built nasara of a trine becomes the original nasara.

A nasara is usually identified by man made features such as erected stones, natural plants such as namele palms and other identical phenomena."

7. In Ourinmal v Ourinmal [2008] VUICB 1, the Island Court established the common practice of transfer of chiefly rights, where the Island stated at page 7 rights are transferred to another person where it stated that:

"Common practice mo custom insaed long nasra ya, long bifo ikam kasem tudei hemi oltaem fes bon son nao hemi stap inheritem title ia blong Jif. Ino eni fes born but fes bon follem bladline."

{Translation: The common practice and custom inside a nasara, in the past and until this day was that the eldest son, but the eldest son according to bloodline, if a mother has already being pregnant with a sone and move in with her child to live with a chiefly father, that son must be submissive to the chiefly authority of the real eldest son of the chief}

8. In Joselito v Niovenmal [2008] VUICB 2, the Island Court extended the precedent further at page 7 and said that:

"Nara kastom practice tu se man wei kam long nara ples or Island bae ino save karem taetol ia blong ikam wan Jif blong ol pipol, hem oltaem hemi mas kam stap andanit long stret man ples long area ia. We spos big faea inomo gat then bae smol faea inext person we isave tekem rank ia."

{Translation: Another custom practice is that, a person that has moved in from antoher place or island, shall not remove the title to become chief of the people. He shall always be submissive towards the original people of that area. If ever, the bloodline of the paramount chief is no longer in existence, and then the small faea or small chief shall be the next person in line to be bestowed with such title.}

9. It is also common practice that a paramount chief usually have numerous small chiefs who are specialized in traditional medicine, a magic, and give speech upon the request of a supreme chief. A supreme chief is not allowed to actually prepare traditional medicine, magic, give speeches etc. This tradition had been practiced-by all supreme chief on Malekula Island.

10. The Appellants seek to bring their appeal as of right alleging that the learned Justices' decision is erroneous in fact and/or law.

11. The First Appellant alleged nine general grounds of appeal that:

a. The Malekula Island Court did not thoroughly scrutinize the letter that was being issued by the Malvatumauri National Council of Chiefs to declare the Respondent as the Paramount Chief of Uripiv island;

b. The Malvatumauri National Council of Chiefs decision to declare the Respondent as Paramount Chief of Uripiv island is ultra vires and is null and void;

c. The Respondent was not a descendant of a Paramount Chief and never has any permanent Nasara on Malekula mainland to connect himself between Potun nasara and his ancestor's nasara on the mainland. The Respondent's claim of bloodline lacks substance to secure his foundation 'as a descendant of a Paramount Chief. The First Appellant submitted that in Regenvanu Family v Ross [1987] VUSC 5, Manie v Kilman [1988] VUSC 9, Republic of Vanuatu v Family Jia Julun Civil Case 36 of 2010, David Abia v Gaspard Tommy & ors Land Case No 02 of 1985, Awop v Lapenmal [2007] VUIC 2, the Island Court and the Supreme Court dealt various issues over the Amelinges land. The Respondent is not a party in neither authorities mentioned above. The Appellant Court should infer that the Respondent's history is fabricated. The Respondent cannot be of a paramount bloodline. The Respondent is only a person who comes from the area Amelinges land or from another territory. The First Appellant is of paramount bloodline and his history has indicated that the First Appellant is the supreme chief of Potun nasara.

d. On 28 March 2013 after the Island Court had delivered its decision, the Respondent had an argument with a justice of the Island Court in respect of the decision as to why he was declared a Chief and not Paramount Chief as he had claimed. This ground was withdrawn by counsel for First Appellant;

e. The Respondent provided a pig's tusk as evidence during the trial and the pig's tusk lacks weight to support the Respondent's claim that the pig's tusk belonged to one of the Respondent's ancestor named as Maltete. The Respondent provided insufficient evidence in trial to establish that he is a descendant of Maltete. There is no DNA test to satisfy the Court that the pig tusk is ancient and without a DNA test, the Island Court cannot use such evidence to make their findings. The findings in respect of the pig's tusk is doubtful;

f. The Respondent did not provide proof or copies of competent court judgments that firmly establish himself as the rue descendant of Maltarimb and owner of Amelinges Nasara on Malekula mainland which could warrant him to be of chiefly bloodline to establish Potun Nasara;

g. The Island Court made wrong findings in respect of the location of burial sites of all parties. The First Appellant's ancestors are buried within Potun nasara and not the Respondent. The findings of the Court in respect of burial site lacks substances and the Court did not visit the nasara to conclude its findings. Some of the Respondent's ancestors are buried outside Potun nasara. First Appellant live near Potun nasara and not the Respondent;

h. The Respondent's claim of performing ceremonies inside Potun nasara lacks weight when he failed to name the individual names of the chief who had participated in the customary processes he alleged in his claim. Without the chiefs name it is improper to place weight on such allegation. The Respondent in failing to name the individual name of chiefs who had participated in his alleged customary processes infer that he do not know his history and customary processes had never taken place as the Respondent assumes before the Island Court. The Island Court justices failed to properly make their finding on balance of probabilities.

i. The justices failed to consider and properly analysis the facts presented by the First Appellant during trial. The Respondent made his claim where in customary law such claim do not have a merit. The person can only claim chiefly right through patrilineal system. The Respondent claim by way of matrilineal system. Traditionally, a descendant of a female person is prohibited to claim a chiefly title but, will be subject to a descendant of a male person. The First Appellant is the Paramount Chief of Potun nasara.

12. The Second Appellant submitted four general grounds of appeal that:

a. The Second Appellant had a single and material witness that Malekula Island Court Justices had strike out after the witness had given oath and provided evidence in trial. The procedure is in breach of s. 25 of the Island Court Act [CAP. 167]. The Second Appellant was unable to make his case against the Respondent on the issue of adoption. The Justices erred in law to strike out the Second Appellant's material witness;

b. The Second Appellant must be treated equally under law as stated in Article 5 (1) (k) of the Constitution. The Justices failed to properly determine the issue of adoption when the material witness was unable to corroborate the Second Appellant's claim. The Court determines the issue of adoption solely on the Respondent's evidence. Such approach is in breach of Article 5 (1) (k) of the Constitution;

c. The Justices had no legal standing to strike out Maklyn Malbury as a party in the matter. The Justices were provided incorrect information and had insufficient grounds to strike out the Second Appellant's material witness and to strike him out of the matter;

d. The Island Court clerk had failed to consider the Second Appellant's objection in regard to one of the Justices who had a relation with the Respondent. Justice Wesley Tawi is related to the Respondent's wife. The Island Court clerk ignored the Second Appellant's objection and allowed the Justices to sit in this matter. There is a likelihood of conflict of interest.

13. The First Appellant submitted in submission that:

a. Throughout the proceedings of the Island Court, the Respondent used a letter from Malvatumauri to make his case. The letter of Malvatumauri dated 7 November 2008, named the Respondent as paramount chief of Uripiv Island. First Appellant submitted that Malvatumauri is in no position to nominate the Respondent without a recognition from the Lakatoro office of Malmetenvanu.

b. Article 95 (3) of the Constitution stated:

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

c. Article 95 (3) of the Constitution had recognized customary law as part of Vanuatu laws. The source of law available to the Island Court is the customary law.

d. Moreover Article 47 (1) of the Constitution also stated:

"The administration of justice is vested in the Judiciary, who are subject only to the Constitution and the law. The function of the Judiciary is to resolve proceedings according to law. If there is no rule of law applicable to a matter before it, a court shall determine the matter according to substantial justices and whenever possible in conformity with custom."

e. Taking account of the Constitutional and Legislative provision, the Island Court should bear in mind that chiefly disputes vary between the islands of Vanuatu due to cultural diversity. Malekula chiefly system is connected to land tenure system. In Manie v Kilman, the Supreme Court made it clear that a person who arrived on a land and built a nasara and moved to somewhere else, is the true custom owner of the land. The First Appellant arrived on the area where Potun nasara is located and moved somewhere else. The First Appellant is the paramount chief of Potun nasara.

f Counsel for First Appellant said that the First Appellant live and control Potun nasara. He is the paramount chief of Potun nasara. The First Appellant claims his paramount right through bloodline. In Awop v Lapenmal the Island Court established the concept at page 3 and 4. The Respondent had been allowed to take part in magi feast but, the Respondent has no right to claim a right over the nasara.

g. In Ourinmal v Ourinmal, the Island Court indicated page 7 how the right of a supreme chief is transferred to his descendants. The First Appellant had established how his ancestors had transferred their rights to their descendants. The Respondent had not established how his ancestors had transferred their right to the Respondent. The First Appellant claim is by way of bloodline compared to the Respondent who is not of paramount bloodline.

h. In Joselito v Niovenmal at page 7, the Island Court again extended the precedent held in Ourinmal v Ourinmal that a person who comes from a different place must be submissive to the supreme chiefs. The first Appellant had a supreme right over Potun nasara and the Respondent from a different place. The Respondent must be submissive to the First Appellant.

i. The National Council of Chiefs Act No. 23 of 2006 (the Act) provided the establishment of National Council of Chiefs and its powers. The Act provides for the hierarchical procedure for recognizing custom chiefs from area council of chiefs to national council of chiefs. The Malekula Malmetenvanu Council of Chiefs had not certified the Respondent's position as a supreme chief. It is totally wrong in custom and law for the Respondent to by pass area council of chiefs and island council of chiefs and seek such claim from National Malvatumauri Council of Chiefs. The letter is null and ultra vires because the Respondent's status was never confirmed by Malekula Malmetenvanu Council of Chiefs.

j. The Respondent claims Mal Tarimb bloodline whom is the supreme chief of Amelinges. The Respondent also claims the Lakatoro customary land where the Supreme Court in Manie v Kilman awarded to three parties excluding the Respondent. The Respondent relied on a Deed of Sale of Bushman Bay to make his case. Customary land are reverted back to a customary land owners in accordance with Article 73 and 81 of the Constitution. This means that the Deed of Sale of Bushman Bay has no legal effect. The Deed of Sale should not be considered by the Island Court. The Respondent has no right to claim Metavin 1 & 2 customary land because the Supreme Court had decided as such. The letter of the Supreme Court Registry dated 24 September 1997 concerning Land Appeal Case L8/85 — Metavin 1 & 2 had made it clear the Respondent has no right to claim Metavin land. The letter specifically stated that the Court shall not give customary ownership to individuals as stated at page 13 of the judgment. Metavin land shall only be granted to a chief of Uripiv and the chief of Uri Island. The Respondent's father claim Metavin land where the Supreme Court dismissed his claim. The Respondent upon his claim before the Island Court seeks to have the right to claim Metavin land. The Court restrained the Respondent's father from interfering with Metavin land. The Respondent's claim lacks standing in custom, it's vexatious and frivolous.

k. The Respondent's evidence of a pig tusks lack DNA to satisfy the Court that it belonged to Maltete. It's unlikely that the pig's tusk belongs to Maltete. There are no carbon dating records that could verify the date of the pig's tusk to corroborate the Respondent's evidence. Without a DNA test, the Court should not consider the pig tusk.

l. The First Appellant had a nasara on the mainland whereas the Respondent had no nasara on the mainland. In Johnson Frasher v Jessel Reganvanu & ors, Civil Case No. 35 of 2009, the Court had established that the Respondent had no nasara on the mainland. The Respondent should not be declared a supreme chief without a nasara on the main land. The First Appellant must be found as supreme chief of Potun nasara.

m. The Island Court had made a wrong finding in respect of the burial sites. The Justices were wrong to find that the Respondent's ancestors are the only person buried within Potun nasara when the Island Court failed to visit the nasara.

n. The Respondent's claim of performing ceremonies with Potun nasara lacks weight, as he did not mentioned as to who are the chiefs from other nasara that participated in his ancestors' ceremonies. The Respondent did not provide the names of the chiefs and in doing so has insufficient evidence to show that his family performed custom ceremonies. There is no independent evidence to confirm that pig killings were performed by the Respondent's ancestors. There is doubt that the Respondent's ancestors had performed pig killing within Potun nasara.

o. The Respondent entry into Potun nasara was through his great grandmother's marriage as a second wife to Wulosets, one of the First Appellant's ancestor. The Respondent's claim in not in accordance with custom. The First Appellant's ancestor had been a party to PRV Land case pending before the Supreme Court. The First Respondent had no blood of a supreme chief from the mainland. The Respondent was not recognized by a tribunal or a Court to be of a paramount bloodline. The Respondent's claim is inconsistent with customary land.

14. In applying all the statutory laws and precedents before the Court, the First Appellant seeks that the First Appellant be declared as supreme chief of Potun nasara.

15. The Second Appellant submitted in his submission that:

(i) The Island Court prohibited his material witness to establish that the Respondent had been adopted out of Potun nasara. It is not recorded in the written record the reason of prohibiting the Second Appellant's material witness but, the Second Appellant is submitting to the Court that this is what happened during trial. The material witness is essential to make the Second Appellant's case. The trial Justices had failed to use proper process by prohibiting the Second Appellant's material witness to make his case. The approach taken by the learned Justices are in breach of trial procedure.

(ii) The Court procedure to dismiss the Second Appellant's material witness
caused prejudice to the Second Appellant. The Second Appellant cannot make his case without his material witness. The approach is in breach of Article 5 (1) (k) of the Constitution which stated that:

"The Republic of Vanautu recognizes, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health –

(a)...

(b)...

(c)...

(d)...

(e)...

(f)...

(g)...

(h)...

(i)...

(j)...

(k) equal treatment under the law or administrative action, except that no law shall be inconsistent with this sub paragraph insofar as it makes provision for the special benefit, welfare, protection or advancement of females, children and young persons, members of under-privileged groups or inhabitants or less developed areas."

The Second Appellant was not treated equal in the procedure undertaken by the Justices of the trial Court. The Second Appellant's material witness must be heard by the Supreme Court.

(iii) The Island Court Justices had no legal standing to strike out the Second Appellant in the matter and make a decision without allowing the Second Appellant's evidence in Court. The Second Appellant's material witness was to corroborate the Second Appellant's evidence. The Justices relied basically on the Respondent's evidence to make their decision which not the proper procedure to be followed The Court should not make its findings based on the Respondent's evidence alone.

(iv) The Second Appellant raised his objection during a conference with the Island
Court Clerk, Mr. Joel Jacob, in respect of Justice Lezly Tawi. The ground of objection is that the Justice Tawi is related to the Respondent's wife. The objection raised by the Second Appellant was ignored even though after much assurance that that particular Justice would be excluded from the team of Justices. There is likelihood that Justice Tawi had a conflict of interest. The decision of the Island Court was not properly made.

16. The Respondent in response to the First Appellant's grounds of appeal submitted that:

(a) The Malekula Island Court decision at page 22 had established that the letter of Malvatumauri National Council of Chiefs had not been properly made and had not considered the letter which is proper because the letter is in regard to a right of paramount of Uripiv Island and that is not the issue before the trial Court and is irrelevant to the dispute of Potun Nasara. The argument is in response to ground 1 and 2 of the First Appellant;

(b) The issue before the Court is of Chiefly dispute. The authority provided by the First Appellant had submitted are in regard to land issue. The Appellant Court has no jurisdiction to determine land issue. The Respondent submitted he is related to a party in the PRV Land case pending before the Supreme Court, he had been a party to a proceeding in the Supreme Court in respect of land on the mainland. The Respondent submitted that he moved from his original nasara from the mainland to Potun Nasara on Uripiv. The trial Court had established its finding based on the precedent of this Appellant Court made 23 July 2012 and the findings of the evidence during hearing of 28 March 2013. The Respondent may not be a party to Regenvanu Family v Ross, Manic v Kilman, Republic of Vanuatu v Family Jia Julun, David Abia v Gaspard Tommy & ors or Awop v Lapenmal but that does not mean that the Respondent had no nasara on mainland. The Respondent had been a party to other proceedings before the Supreme Court in regard to Amelinges land. The issue before the Court is not in regard to customary land but to chiefly dispute. The authorities provided by the First Appellant concerns land dispute and have nothing to do with chiefly right or chiefly dispute. The Court should not consider the argument of customary land. The First Appellant's third ground of appeal and the authorities in support is to challenge a right of customary land which the Court has no jurisdiction. The Court should dismiss the third ground of appeal;

(c) The Respondent choose not to respond to the fourth ground of appeal after It was withdrawn by the First Appellant;

(d) The Respondent's evidence of the pig tusk may lack weight of a DNA but it has weight of customary identity. The Island Court made its findings based on customary identity and findings based on customary or traditional identity DNA test to suggest or verify the age of the pig tusk submitted by the Respondent made by the First Appellant is to say that our tradition or customary identity shall be brought into conflict with westernized idea such as DNA. The Island Court has jurisdictions to deal with customary law applicable in the trial Court and that findings should be findings of customary identity of each party in the trial Court. DNA is an excuse to modernize our traditional or customary identity. The pig tusk should have the same consideration as all namangi stones where customary law is applicable and not DNA test. The trial Court had properly considered the weight placed on the pig tusk. The pig tusk had been twisted twice. Nowadays, it is impossible or rate to fund such pig tusk. Such pig tusk establishes the highest rank a chief in a nasara. The pig tusk and other evidence had established the Respondent's right to claim Potun Nasara. The customary identity should be dealt by custom and not DNA test as alleged by First Respondent. The fifth ground of appeal is in conflict with customary or traditional law and should be dismissed.

(e) The Respondent submitted he claim a right of his ancestor to be the rightful chief of Potun nasara. The First Appellant claim after Mal Tarimb who was a Paramount Chief from Amelinges. Custom teaching had been transmitted orally from generation to generation and this is what had been told to the Respondent's grandfather and this had been told throughout his generation. It is his right to claim in accordance with customary law and customary teaching from his ancestors to him orally. On 23 July 2012, the Appellant Court referred the parties back to the Island Court not for re-hearing of the matter but to deal with specific issues. The First Appellant failed to mention the number of pigs killed by his ancestor namely 'Rerear in his claim and during trial the First Appellant was unable to state how many pigs were killed by 'Rereal'. When the matter was sent back to the Island Court for determination of specific issues, the First Appellant submitted another claim where he mentioned the number of pigs that he was unable to state during trial and his original claim. The First Appellant clearly has no merit in his case. Changing of claim and history illustrate that that First Appellant is usable to remember his history or he is fabricating his history as he goes. The First Appellant is the one with unclean hand before the trial Court and not the Respondent. The sixth ground of appeal must be dismissed.

(f) In respondent to the seventh ground of appeal, the Respondent submitted that only his ancestors are buried within Potun nasara. The Island Court may incorrectly made its findings as to the burial sites of each party but the decision of Appellant Court dated 23 July 2012 had made it clear at page 12 stated that all the First, Second Appellant and the Respondent's ancestors are all buried within Potun nasara. This clearly shows that the parties' ancestors may have lived together at Potun nasara. The findings of the burial site made by the Island Court may be incorrect but the findings of the Appellant Court of 23 July 2012 after its visitation of the nasara are correct and should put to rest the issue of who is buried within Potun nasara. The seventh ground of appeal had been dealt by the Appellant Court's visitation of Potun nasara and the Island Court decision of 28 March 2013 in respect of burial sites shall be dismissed and the findings of the Court of 23 July 2013 is the proper finding of the Court. However, the Respondent claims that only his ancestors are buried within Potun nasara.

(g) The Respondent had not mentioned who are the chiefs who had participated in the alleged ceremonies is in accordance with the traditional ways to speak of customary ceremonies. The Respondent had established that the chiefs who had participated in his ancestors traditional ceremonies are from the seven nasara at Uripiv and the chiefs of Rano at mainland. It is not necessary to state out the name of individual chief because traditionally this is not done by a chief. A chief shall only establish that a chief of a certain area had performed or participated in a namangi not the name of the individual chief. This is the approach that the Respondent had made in the trial Court. This procedure is in compliance with customary law and traditions of Malekula. The Respondent had established his allegations in respect of ceremonies performed within Potun nasara. The findings of the Island Court are in line with customary law when dealing with ancestral customary identity of each party during visitation and collecting of evidence. The Island Court justices had dealt with the issue of individual chief who had participated in the alleged customary ceremonies. The way of accepting an evidence of a participation of customary ceremonies of chief in mentioning a chief and that is corroborated with a witness's evidence as a chief of a tribe or an area and not stating the chief's individual name is correct and in accordance with the customary law and traditional ways of respect.

(h) The Respondent's ancestors were killed by the First Appellant's ancestors so that they may claim the right of a paramount chief. One of the Respondent's ancestors by the name of Nialmen was killed by the First Appellant's ancestors. The Respondent and the First Appellant are not of the same bloodline. The Respondent claims a different bloodline from the First Appellant. This clearly indicated in their claim. The ancestors of the First Respondent come from a nasara from Ameligen towards the South of Malekula whereas the Respondent claims that his ancestors came from Amelinges land near Uripiv. The First Appellant attempted to bring new history at the last Island Court trial without any leave of the Appellant Court. The First Appellant and the Respondent are not of same bloodline. The ninth ground of appeal is an attempt to cause obstruction of justice and prejudice to the Respondent.

17. The Respondent submitted in response to the Second Appellant's grounds of appeal that:

(i) The Malekula Island Court struck out the Second Respondent's material witness and the witness' brother because the witness and his brother had been exchanging words with the First and Second Appellant. The Respondent made it clear to the Island Court that the witness had unclean hand. The Island Court Justices decision to dismiss the Second Appellant's material witness is within the Court's jurisdiction. The Court used the process to make sure that parties are on equal footing. The Island Court upholds the cause of justice and the procedure is proper. Article 5 (1) (k) was applied in the Island Court. The Court should dismiss the Second Appellant's first and second ground of appeal.

(ii) The Malekula Island Court struck out the Second Appellant as a party to Potun nasara after the Court is satisfied that the Respondent as first born son has a right to claim and not the Second Appellant who is a descendant of the second born male. The Respondent had proven on onus of probabilities that he was not adopted away from Potun nasara. The Island Court decision is correct. The third ground of appeal should be dismissed.

(iii) Lastly, the Second Appellant had raised no objection to the Island Court clerk. This allegation is a new before the Court and the Second Respondent is trying to mislead the Appellant Court. The material witness had not provided evidence before the trial Court after he had taken his oath. It is not fair or correct for counsel for Second Appellant to make allegation when the record of the Court made any reference to suggest such allegation. The Second Appellant had raised numerous grounds of appeal that is not contained in the Court records. The fourth ground is without merit and should be dismissed.

18. The First Appellant submitted in reply that the Respondent's history is questionable because in Regenvanu Family v Ross, Manie v Kilman, Republic of Vanuatu v Family Jia Julun, David Abia v Gaspard Tommy & ors, Awop v Lapenmal he was never a party to Amelinges customary land. The Respondent fabricated his history without foundation. The Respondent had no original nasara on Amelinges land. The Court must take into consideration that the authorities provided are of Amelinges land and the Respondent was not a party. Thus, he has no paramount right of such within Amelinges land. The Respondent is not of a paramount bloodline and is not the paramount chief of Potun nasara. The First Appellant is the proper person to be elected as paramount chief of Potun nasara.

19. The Second Appellant submitted in reply that the matter must be referred back to the Island Court before different Island Court justices.

20. Now, the Appellant Court after considering all the parties submissions, the Court make its findings on the First Appellant's grounds of appeal as follows:

21. This Court is satisfied that the learned justices had properly considered the Malvatumauri letter. There is no need to thoroughly scrutinize the Malvatumauri letter when it is in regard to paramount chief of Uripiv Island. The issue of Paramount Chief had been dealt by the Appellant Court on 25 October 2011 by dismissing the claim. The justice of the Island Court had made proper findings in respect of the Malvatumauri. The Appellant Court shall respect the findings of the Island Court in respect of the Malvatumauri's letter. The learned justices had erred in law and the first ground of appeal is hereby dismissed.

22. The letter provided by the Malvatumauri Council of Chiefs is not null and ultra vires. The institution had all the powers to make its administrative decision to provide assistance in all matter of custom and tradition. The National Council of Chiefs Act 2006 gives the power to the institution to make decision. The Court hereby dismisses the second ground of appeal. The Malvatumauri by producing the letter did simply provide assistance to state its opinion concerning custom and tradition. The Second Appellant should seek remedies before the Supreme Court if he wants to challenge the principle of null and ultra vires. The second ground of appeal is hereby dismissed.

23. The Malekula Island Court as a trial Court had properly made its findings based on the evidence before it. The Island Court made its findings upon hearing all parties. It may be correct that the Respondent is not a party to Regenvanu Family v Ross, Manie v Kilman, Republic of Vanuatu v Family Jia Julun, David Abia v Gaspard Tommy & ors, Awop v Lapenmal but, that does not mean that the Respondent has no nasara on the main land. In Regenvanu Family v Ross, Manie v Kilman, Republic of Vanuatu v Family Jia Julun, David Abia v Gaspard Tommy & ors, Awop v Lapenmal, the Island Court and the Supreme Court dealt the issue of customary land. The Respondent sought a chiefly title and not a right over customary land. The Court shall not infer from the decisions of the Island Court and the Supreme Court that the Respondent had no nasara on Amelinges land. Thus, the Appellant Court dismisses the third ground.

24. The First Appellant had been changing his history and had been elaborating further on his claim without the leave of the Appellant Court when the matter was referred back to the Island Court for determination of some issues. The First Appellant is unsure of what he claims before the Island Court by changing his history more than once. In addition, the First Appellant submitted in his claim that his ancestors practiced black magic by changing into a shark and travelled around Uripiv Island. A paramount bloodline is prohibited to practice black magic. This evidence clearly showed that the First Appellant must be a descendant of a small chief who is allowed to practice black magic for a supreme chief.

25. The Court dealt with fourth ground of appeal when it was withdrawn by First Appellant during hearing.

26. The Court shall follow the precedent in Awop v Lapenmal and ruled that there is no requirement under custom for the pig tusk to be assessed by DNA. The Court is satisfied that the decision of the Island Court in respect of the pig tusk is correct and in accordance with customary law. The Appellant Court upon visitation of the nasara had established that all parties ancestors did live with Potun nasara. The fifth ground of appeal is hereby dismissed.

27. The Court is satisfied that the Island Court had sufficient evidence to state that the Respondent is a descendant of Mal Tarimb. All parties do have their individual nasara upon the mainland. The Court shall respect the findings of the Island Court in regard to each party's family tree and bloodline. The Court shall not make any findings to contradict the findings of the trial Court which is the proper Court to make findings of family tree. The Court hereby dismisses the sixth ground of appeal.

28. The Court is satisfied that the ancestors of all parties were buried within Potun nasara. The Court revoke the findings of the Respondent being the only person buried within Potun nasara and the Court orders that the ancestors of all parties are buried within Potun nasara. The seventh ground of appeal is allowed.

29. The Court shall not interfere with the procedure undertaken by the Island Court justices as to how they proceed and collected their evidence during the re-hearing of the matter. The issue of whether or not a chief is named in person is not in accordance with custom, a chief is named as a chief of a tribe and in custom a chief's name is seen as a taboo. The Court is satisfied that the Appellant originally came from Ameligan and created Amel Taun with a man from Ambrym where he performed pig killing. There is evidence of pig killing but, the Court is satisfied, that the pig killing happened within Amel Taun which is consistent with the First Appellant's claim before the Island Court.

30. The First Appellant's claim stated that after a conflict with the man from Ambrym, his ancestors left and arrived at Potunbaur within the area of Potun where some people told his ancestor to stay overnight because it was not safe. In custom, the First Respondent's ancestors were provided shelter. In accordance with the principle in Awop v Lapenmal, the First Respondent cannot claim a supreme right over a nasara occupied some person before him who had provided his ancestors shelter. The Court is satisfied that individual name of chief is not required in custom as long as the party named the chiefs by a nasara. Individual names are not required as long as the party can name the chiefs tribe or nasara. The Island Court has made its proper findings and this Court shall not interfere with individual names of chiefs. The Court hereby dismisses the eighth ground of appeal.

31. The Court is satisfied that the Respondent is not the bloodline of the First Appellant. Respondent's ancestor Nialmen was killed and his son and widow were taken into Wullosij's care when the widow becomes the Wullosij's second wife. The ancestor is the son of the deceased Nialmen. The Court is satisfied that Wullosij had no upspring with Nialmen's widow. This Court shall uphold the findings of the trial Court. The Court hereby dismisses the ninth ground of appeal.

32. Now, the Court shall turn his findings on the Second Appellant's grounds of appeal, the Court make the following findings:

33. The Island Court had procedure to prohibit a witness to give evidence upon a submission of unclean hand is within the Island Court jurisdiction. The Court finds that the Island Court had properly dealt with dismissing the material witness of the Second Appellant. The Island Court did not breach Article 5 (1) (k) of the Constitution. The Island Court has a jurisdiction to stop a witness when there is an attempt by a witness or party to deviate the cause of justice. The first and second ground of appeal hereby dismisses.

34. The Island Court is proper to find that there is no adoption. The concept of strike out is in conflict with custom. The Island Court should order that the Respondent and the Second Appellant are of the same bloodline but, the Respondent comes from the first born male must be the leader of the bloodline. The Court revoke the Island Court decision to strike out the Second Appellant as a party and order that the Respondent must recognize the Second Appellant being of same bloodline.

35. The Court is satisfied that no objection was raised by the Second Appellant during a conference. The Court dismisses the fourth ground of appeal.

36. Concerning the issues deal by the Court in its re-hearing of the matter, the Court is satisfied that:

❖ the Island Court had properly dealt with the issue of adoption;

❖ that the Island Court had properly dealt with the letter of Malvatumauri Council of Chiefs;

❖ that the Island Court had properly dealt with the pig tusk;

❖ that the Island Court had properly dealt with each parties history, family tree and all the witnesses available before the Court;

❖ that the Island Court had properly dealt with rights of each party;

❖ that Island Court had properly dealt with the movements of party and applied customary law and traditions to their best knowledge;

❖ that the Island Court had properly dealt with how a chief could be ranked by way of pig killing;

37. Upon these findings, this Court orders that:

(1) The Respondent as a chief of Potun nasara is in accordance with the findings of the Island Court dated 28 March 2013.

(2) The First Appellant is a small chief of Potun nasara.

(3) The Second Appellant has no chiefly right but, must be recognized by the Respondent as being of the same bloodline as the Respondent.

(4) First and Second Appellant shall pay re-imbursement to the Respondent in the sum of VT15,000 for filing fee and transport.

DATED at Lakatoro, this 10th day of July 2013

BY THE COURT

Justice M. Arnamu
Justice K. Hapsai