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Batick v Harry [2020] VUMC 4; Civil Appeal Case 3199 of 2018 (14 August 2020)

IN THE MAGISTRATES COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Chiefly Title Appeal
Case No. 3199/18

BETWEEN:
NIAR BATICK
Appellant

AND:
ELSIEM HARRY
Respondent
Date of Hearing:
Date of Judgment:
22nd July 2020
14th August 2020
Before:
Supervising Magistrate Trevor NAIEU
Justice Robert NEPTICK
Justice Lorna BONGVIVI
Appearances:
Counsel Willie K for Appellant & Niar Batick
Counsel James T for Respondent
Joseph Johny & Elsiem Harry for Respondent

JUDGEMENT


Introduction

  1. This is a Chiefly Title appeal filed against the decision of the Malekula Island Court dated 31 January 2018.

Background

  1. The Claimant in the Court below one Elsiem Harry filed a claim application for Chiefly title Marsangafur as the Paramount Chiefly title over the Supreme custom nasara of Batamar situated along the coastal area of Unua 3 in the South Eastern part of the Island of Malekula.
  2. After a full hearing lawfully composed and presided over by three (3) Justices of the Malekula Island Court, final verdict Orders were made as follows;

“...KOT ODA”

1. Jif Harry Marsangafur emi paramon jif blong Batamar nasara kolosap long solwota mo Batamar settlements long bush;

2. Paramon Jif Harry Marsangafur bae emi jusum wan long tufala jif ia Niar Batick mo Fred Markon blong emi kam assistance jif blong em long Batamar nasara;...”


The Law

  1. A). Section 22 and 23 of the Island Court Act Cap 167 states;

“22. Appeals

(1) Any person aggrieved by an order or decision of an island court may within 30 days from the date of such order or decision appeal from it to the Magistrates’ Court.

(2) The court hearing an appeal against a decision of an island court shall appoint two or more assessors knowledgeable in custom to sit with the court.

(3) The court hearing the appeal shall consider the records (if any) relevant to the decision and receive such evidence (if any) and make such inquiries (if any) as it thinks fit.

(4) An appeal made to the Supreme Court under subsection (1) (a) shall be final and no appeal shall lie therefrom to the Court of Appeal.

(5) Notwithstanding the 30 day period specified in subsection (1) the Supreme Court or the Magistrates’ Court, as the case may be, may on application by an appellant grant an extension of such period provided the application therefore is made within 60 days from the date of the order or decision appealed against.


23. Power of court on appeal

The court in the exercise of appellate jurisdiction in any cause or matter under section 22 of this Act may –

(a) make any such order or pass any such sentence as the island court could have made or passed in such cause or matter;

(b) order that any such cause or matter be reheard before the same court or before any other island court...”


B). Rule 16.35 (1), (2), (3), (4), (5), (6), (7) of the Civil Procedure Rules No. 49 of 2002 states;

“Appeal to the Magistrates Court

16.35 (is rule appliesplies to appeals from island courts to the Magistrates Court.


(2) The appellant must:

(a) file a Notice of Appeal in the Magistrates Court; and

(b) give a copy of the notice to each other party.
(3) Each party must give an address for service of documents to the Magistrates Court.

(4) The Island Court must ensure that the notice of the appeal and all supporting documents are given to the Magistrates Court.

(5) The magistrate must:

(a) fix a first hearing date; and

(b) tell the parties about this.
(6) At the first hearing, the magistrate:

(a) must appoint 2 or more assessors knowledgeable in custom to sit on the appeal; and

(b) may make any other orders, or give any directions, for hearing the appeal; and

(c) must fix a date for hearing the appeal.
(7) At the hearing of the appeal, the assessors sit with the magistrate...”


Grounds of Appeal


  1. The Appellant through former counsel Mr. Boar submitted thirteen (13) grounds of appeal (of which current counsel relied on) against the findings and Orders made by the Court below.
  2. All the thirteen (13) grounds of appeal alleges an err by the Court below in their findings and Orders made with regards to custom facts and evidences relied on and those whom insufficient weight and emphasis was put to it and vice versa.

Nasara site visit

  1. We see proper and important therefore, site visit to Batamar nasara inland uphill and Batamar nasara along the coast.

Findings in this Appeal

  1. The Court below did not do the nasara site visit but decided on the papers and oral submissions and evidences of witnesses during the hearing.
  2. In the Court below, the Appellant and the Respondent including one Fred Markon all claimed for paramount chiefly title over the same nasara of Batamar but each claimed a totally different Namangi ranking steps or process therefore leaving the Court to decide which claimed Namangi ranking steps or process is the ancient custom recognize Namangi for Batamar nasara.
  3. There are ten (10) Namangi ranking steps to be performed by an individual to earn the paramount chiefly title of Batamar nasara.
  4. The parties in this appeal are biologically related maternally whereby the Appellant is the eldest.

The Appellant


  1. Stated that they are ten (10) Namangi ranking steps to be individually performed to earn the highest title/rank of paramount chief in Batamar nasara. The highest ranking is Markon. He outlines the different ranks from the lowest to the highest as follows;
    1. Narkol 6. Melebon
    2. Merif 7. Merehon
    3. Doufalu 8. Curcur
    4. Dongof 9. Balang
    5. Sushluf 10. Markon
  2. Stated that a man named Batin Naot (Markon) was the original Mangi and Namangi person who settled in. He performed the 10 custom rituals (Namangi) to earn the highest rank which is the Markon for paramount chiefly title. He establishes the Batamar nasara inland uphill and moved with his people to live along the coastal area then establishes two other small nasara along the coast namely Repenapok and Batamar.
  3. According to the Appellant’s family tree, he Niar Patick is the eldest (first born) in today’s generation of this man namely Batin Naot.
  4. During the nasara site visit, the Appellant shows ten (10) wood custom carvings (tamtam) to the Court. Each tamtam symbolizes the face painting pattern and color to be dressed in by the individual when performing each of the ten (10) ranking steps of the Namangi in Batamar nasara starting from Narkol to Markon.
  5. The Appellant stated that the original supreme Batamar nasara of this man Batin Naot (Markon) is the one inland uphill while the also Batamar nasara along the coast is a small nasara and was created as a result of the movement of Batin Naot and his people to the coastal areas to access marine food and to welcome the arrival of the gospel. During the site visit of both the nasara, he thoroughly explained the physical custom remains (buried standing and laying stones including the heap stones) and the boundary of both the nasara including the custom protocols performed in each nasara.
  6. At the inland uphill Batamar nasara, the Appellant explained that the line of buried standing stones totals up to seventy four (74) symbolizing the seventy four (74) number of chiefs that attended and witnessed the Namangi in that nasara.
  7. Also during the nasara site visit, the Appellant identifies and explain the heap of stones to be stones dropped there by people who came to witness the Namangi and this is a custom protocol. He also identifies and explain a stone to be the registration stone of the chiefs who attended the Namangi whereby in both the nasara, the stones are located at the entrance of each nasara.
  8. Stated that the Namangi and other custom rituals were performed inside the center of Batamar nasara and that the performance of the Namangi and other custom rituals has occurred in both the nasara of Batamar inland uphill and Batamar nasara along the coast.
  9. Identifies during both the nasara site visit which stone represents the paramount chief Markon including the other stones planted around and beside it.
  10. Stated that because he is the eldest (first born) male blood related to Batin Naot the original paramount chief (Markon) of Batamar nasara during the ancient times, he should be declared the paramount chief (Markon) of Batamar nasara.

The Respondent


  1. Stated that they are ten (10) Namangi ranking steps to be individually performed to earn the highest title/rank of paramount chief in Batamar nasara. The highest ranking is Marsangafur. He outlines the different ranks from the lowest to the highest as follows;
    1. Nakor 6. Davor
    2. Merllif 7. Meleun
    3. Marif Revrev 8. Namar
    4. Barang 9. Markusri
    5. Kurkur 10. Marsangafur
  2. The Respondent claimed through spokesperson one Joseph Johny in the Court below and this appeal hearing and during the nasara site visit that the nasara claimed by the appellant that is located inland uphill is not an existing nasara but a settlement area.
  3. During the nasara site visit, the Respondent himself refutes the submission made by his spokesperson saying the nasara claimed by the Appellant that is located inland uphill is an existing nasara but is a small nasara and not a settlement .
  4. Stated that the nasara along the coast is the original supreme Batamar nasara of paramount chief Marsangafur before moving inland uphill to establish the other Batamar nasara to mark his land boundary.
  5. Stated that the performance of the Namangi occurred in both the Batamar nasara inland uphill and Batamar nasara along the coast but most of the custom rituals were performed at the Supreme Batamar nasara along the coast.
  6. Sated the all the custom rituals including the Namangi were performed outside the premises of Batamar nasara because inside the nasara is a Tabu area only to be entered by the paramount chief(s).
  7. Identifies and explain the altar that was built by paramount chief Marasangafur at the Batamar nasara along the coast whereby on top of that same altar he had sexual intercourse with his wife while his people look on.
  8. Identifies during both the nasara site visit which stone represent the paramount chief Marasangafur including the other stones planted around and beside it.

Discussions

  1. It is of custom importance and proof that physical custom remains of important custom rituals such as performing the Namangi to become a paramount chief to date still exist in a nasara therefore it is very vital that the Court do site visit to the nasara claimed.
  2. In the Island of Malekula, the crucial physical custom remains are usually buried standing or laying stones and heap of stones of whom each has its own custom meaning, purpose, identity or represent a paramount chief and his body guards or represent a number of paramount chiefs that came to witness the Namangi or other custom rituals.
  3. The custom requirement in the Island of Malekula for one to be crowned a paramount chief of a specific nasara involves a series of individual custom performances or steps to be individually performed before earning each higher level of chiefly title ranking. The last level of ranking is the authority and title of a paramount chief. This is referred to as performing the Namangi.
  4. There can only be One (1) custom recognize Namangi process or procedure with its different level of ranking in a single specific nasara but there cannot be more than One (1).
  5. It is a common movement during the ancient times not only in the Island of Malekula but most other Islands in Vanuatu that living began inland then movement occur to the coastal areas to access sea food, medical care (hospital) and to welcome the arrival of the gospel. Therefore it makes sense that original supreme nasara of a paramount chief will be located inland.
  6. We find it difficult to believe and describe why Marsangafur a person of high status and respect as a paramount chief would built an altar then had sexual intercourse with his wife on top of that altar while his people look on and still maintain his title as paramount chief.
  7. We find it difficult to believe that important custom rituals specifically the Namangi performed by the claimed paramount chief Marsangafur would occur outside the nasara because it would have no value in custom. We are mindful however that certain areas inside a nasara would be restricted as Tabu.
  8. We find the Appellant’s paramount chiefly title Markon custom story, the physical evidences shown and clearly explained including his movement very convincing and true.
  9. Need we remind ourselves and the parties that although a paramount chief of a nasara also owns a custom land boundary, we strongly oppose the idea of claims for a paramount chiefly title of a nasara to indirectly have rights to a custom land boundary because claiming custom rights to land has its own legal process of determination.

Result.

  1. The Appeal is allowed.
  2. The entire final Orders made by the Court below are set aside.
  3. The Ten (10) series of ancient custom recognize Namangi for Batamar nasara is the one claimed and proved by the Appellant beginning with Narkol and ending with the highest Markon as the paramount chiefly title.
  4. Niar Batick is entitled to the Paramount Chief Markon of Batamar nasara inland uphill and Batamar nasara along the coast.
  5. The original Supreme Batamar nasara is the Batamar nasara inland uphill.
  6. The Batamar nasara along the coast was created as a result of the movement of paramount chief Markon and his people to the coastal area to access sea food and to welcome the arrival of the gospel.
  7. The Respondent Elsiem Harry and one Fred Markon are blood related to the Appellant therefore both also belong to Batamar nasara.
  8. Parties to meet their own costs.

Direction to the Malekula Island Court

  1. As a matter of crucial importance, Island Court hearings over a Chiefly title dispute in the Island of Malekula cannot be decided on the papers therefore Must site visit the nasara because custom crucial physical evidences of paramount chiefs can only be seen there.

DATED at Lakatoro this 14th day of August 2020.


BY THE COURT


.......................

Trevor NAIEU

Supervising Magistrate


................................. ....................................

Justice Robert NEPTICK Justice Lorna BONGVIVI


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