Santo Veneers Ltd v Naliupis [2001] VUSC 105; Criminal Case No 025 of 1995 (27 September 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

R.S. Criminal Case No. 1995

IN THE MATTER OF SECTIONS 212 AND 213 OF

THE CRIMINAL PROCEDURE CODE ACT [CAP.136]

BETWEEN:

SANTO VENEERS LTD

Plaintiff

AND:

JEROME NALIUPIS & PATRICK NALIUPIS

Defendant

Date of Hearing: 24th September, 2001, 2:15 p.m.

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p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Coram: Mr Justice Oliver A. Saksak

Clerk: Ms Cynthia Thomas

Counsel: Mr Saling N. Stephens for the Plaintiff.

Mr Bill B. Tamwata for the Defendants.

lass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> INTERLOCUTORY JUDGEMENT<

The trial of this matter started on p>th May, 2001. The Plaintiff had presented their evidence and closed their casr case that day. Mr Tamwata in opening indicated he would be calling three witnesses one of whom would testify in relation to the Defendants’ counter-claims against the Plaintiff in respect of wood or trees logged on and for damage done to land on Biel. The Defendants claim that the land is theirs.

The Court intervened by posing the issue of whether the Defendants can show to the Court that they have been declared and registered as true custom-owners of Biel land. And if they can, the defendants were required to produce a decision of the Santo/Malo Island Court to that effect.

It occurred to the Court that that issue was to be a preliminary issue for determination before going further into the Defendant’s evidence in relation to the substantive matter. Mr Tamwata agreed and requested for an adjournment which the Court granted. The matter was adjourned to 20^th June, 2001 but the hearing was vacated due to Mr Tamwata being away with the Magistrate’s Court circuit to Pentecost. The matter was relisted for hearing on 6^th August, 2001 but was again adjourned at the request of the Defendants. The matter was listed further on 7^th August, 2001. On the Court’s own motion the hearing was adjourned to 24^th September, 2001 due to insufficient time.

Mr Tamwata called evidence from two witnesses being Chief Lus Iaro Matthias and Chief Joseph Sekrem. These two ChiefChiefs were among six other chiefs who sat at a meeting held at Sara Nakamal on 5^th March, 2001. They produced a copy of the minutes and decision of that meeting. The Defendants rely on that decision as a declaration that they are the custom-owners of Biel land.

Mr Stephens called evidence from three witness who had sworn affidavitswho were cross-examined on same. These were Clen Lora who disputes ownership of the defendants to Biel land, Chief Mosis Song who accompanied her to Sara on 5^th March 2001 to be her witness only to find that he had to sit as one of the Chiefs to hear the matter. The final witness was Nathrick Lath who testified that Clen Lora is the true custom-owner of Biel had as opposed to Harriette, the wife of Jerome Naliupis, one of the defendants.

The issue for the Court to decide is whether the defendants ar true custom-owners of Biel land and whether they can show show that they have been declared as such by the Island Court. Further that upon that finding and declaration, whether they have been registered as true custom-owners of Biel land. From their evidence the defendants have not established that they have been found, declared and registered as custom-owners of Biel land. They rely on the decision of the chiefs meeting held in Sara on 5^th March, 2001. But that meeting did not consider the issue of owner-ship of Biel land. It is clear from the minutes what the chiefs had to decide was whether or not “Hariette I stret pikinini blong Teroe or nogad?” And the chiefs found and held that Hariette was the daughter of Teroe. Clen Lora, Hariette’s sister disagrees. She says that Hariette’s father was Rocrei, brother of Jacques husband of her mother Kiath who had died. She says that Rocrei is from Kole. She says that her mother conceived with Hariette as a result of her affairs with Rocrei before Kiath was taken back and given to Teroe, her father. Chief Mosis Song and Nathrick Lath could confirm that evidence. But it did not happen that way on 5^th March, 2001. Chief Song could not testify because he was made to sit as a chief to determine the matter with the other chiefs. Chief Song did not sign the decision of the chiefs because he disagreed with it and the composition of the chiefs who sat to hear the matter. There is allegation of bias.

Based on those evidence it is clear to me that the defendants have not established that they have been held, decland registered as the the true custom-owners of Biel. With Clen Lora’s opposition and challenge to the decision of the chiefs, it is unsafe for the Court to accept the document dated 5^th March, 2001 as a determination of ownership of Biel land in favour of the defendants. The defendants in this action are Jerome Naliupis and his son Patrick Naliupis. The defendants are not Clen Lora and Harriette Naliupis.

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> For these reasons the claim by the two defendants that they are the true custom-owners of Biel lands.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> DATED at Luganville this 27^th

BY THE COURT

OLIVER A. SAKSAK

Judge