IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Land Appellate Division)

Land Appeal Cases Nos. 1, 2 & 3 of 1993

IN THE MATTER OF: A LAND APPEAL FROM THE MALEKULA ISLAND COURT IN RELATION TO LAND KNOWN AS BOTOLFO ON THE ISLAND OF MALEKULA

BETWEEN:

GREGOIRE SALYOR
First Appellant

AND:

REUBEN METRID
Second Appellant

AND:

DAVID MELTELILI
Third Appellant

AND:

WILSON ISAIAH
Respondent

Coram: Justice Treston

Assessors: Chief Johnson Frazer
Chief Endi Shem

Counsel: Mr. Hakwa for Appellants
Mr. Saling Steven for Respondent

Dates of Hearing: 16 & 17 November 2004
Date of Decision: 24 November 2004

JUDGMENT ON APPEAL

This is a case concerning a land dispute over land called Botolfo ("the land") located in the Northwest area of Malekula.

ISLAND COURT DECISION

The Island Court decision was delivered on 25 June 1993 at Lakatoro on Malekula and the Court held as follows: -

"BECAUSE OF THESE DISCUSSIONS, THE DECISION OF THE COURT IN BOTOLFO LAND GOES AS FOLLOWS:

-	David Meltelili does not have any right in the Botolfo land;
-	Wilson Isaiah must allocate a small piece of Botolfo land to Reuben Meltelili (that clearly should have been Reuben Metrid)
-	Gregoire Salyor, you have the right to the part of Botolfo land which name is Betaramb which is situated inland and runs down to the main road;
-	Wilson Isaiah, you have the right to the other part of Betaramb on the other side of the main road to the sea and every other part of Botolfo land, except that which belongs to Gregoire Salyor and that which you will give to Reuben Metrid."

The Court accepted the evidence of Wilson Isaiah that his family and his ancestors were the owners of Botolfo land. The Court said that he said that the big Chief was Kalter who married Ledin and they had one child whose name was Malkon. Wilson Isaiah's contention had been that Malkon married Lesanto who was from Rano and they had one daughter whose name was Nelly, who was Wilson Isaiah's mother. The Court accepted Mr. Wilson Isaiah's evidence that, because of disputes between the people of Naure and Botolfo, Malkon had gone to live at Rano and had died there. Lesanto had been buried at Botolfo but Nelly had grown up at Rano and was married to Paul from Rano and Wilson Isaiah was their child.

It was only later when hostilities had effectively died down that Nelly and her son Wilson Isaiah were encouraged to return to Botolfo to reclaim their land. Earlier meetings, at which important Chiefs of the area had been present, agreed that Nelly should take the land and some of those Chiefs had in fact been the father or grandfathers of the Appellants. The Court had also noted that as to nasara, Wilson Isaiah said that he had five on the hilltop and this was not disputed by the Appellants.

In summary the Court accepted that the Respondent, Wilson Isaiah, had the right to the Botolfo land.

As to the First Appellant Gregoire Salyor, the Court said that he claimed the part of the land that was shown on the sketch map annexed to the judgment which was called the Betaramb land. The Court summarized his claim on the basis of a peace agreement to end a dispute, a pig which another Chief had taken and not paid for and the fact that the First Appellant had taken care of Chief Meltekon near the time of his death and thus was entitled to a transfer of land to him. The Court rejected that land could be transferred because of a peace agreement and exchanges of woven hair of two important Chiefs. The Court accepted that the First Appellant's claim was based on navelite and the care and loss he incurred at the event of the death of chief Meltekon, and that he should succeed on that basis. 

In relation to the Second Appellant, Rueben Metrid, the Court detailed his claim as being in fact that a woman from Naure had married an old man from Botolfo and they had a son. That child was already a Chief in Botolfo and that that was re-enforced by the fact that when the child went to Naure breadfruit was given to him to eat and he was declared their chief. The Court did not believe that evidence. The Court dismissed that Appellant's evidence as being not believable and evasive. There was also a recording, allegedly from Rueben Metrid's grandfather Meltekia, which the Court acknowledge gave a limited right of Rueben Metrid to the Botolfo land.

As to the claim by the Third Appellant, David Meltelili, the Court said that his claim was based on the relationship between two important Chiefs and because people had died in tribal fights and because an important chief went to jail and that was seen to be payment for the land and finally because another chief had given David Meltelili certain rights. The Courts gave reasons for rejecting each of those claims and noted that David Meltelili had no witnesses to support him who had proved to be reliable.

The Court spent some time in addressing the claims of the three Appellants against the Respondent and rejected the allegation that Nelly was an illegitimate child. The Court held that Wilson Isaiah could have rights to the Botolfo land because in the custom of North West Malekula, he could attain rights to the land where there was no surviving male and his mother was the only daughter.

The Court held that Wilson Isaiah was the correct last person of Botolfo who was alive even though it was through the matrilineal side, which was in accordance with custom, provided that she came from the same bloodline.

GROUNDS OF APPEAL

The First Appellant, Gregoire Salyor, set out the grounds of his appeal as follows: -

1.	That the Island Court was wrong in law in holding that under the customary law applicable in North West Malekula, land and property does not pass to another person on the basis of and following a peace agreement and exchange of weaved hair between two Chiefs.

2.	That there was no evidence to support the finding of the Island Court that the boundaries of the land (BETARAMB) extends from its inland marks down to the main road only.

3.	That the findings of the Island Court in relation to the boundaries of the land (BETERAMB) were against the weight of the evidence.

4.	That the judgment of the Island Court in relation to the boundaries of the land (BETERAMB) was wrong and ought to be set aside.

As to the Second Appellant, Reuben Metrid, the grounds of his appeal were as follows: -

1.	That the Island Court was wrong in law in holding that under the customary law applicable in North West Malekula, the Appellant does not have any customary ownership of land Botolfo.

2.	That there was no evidence to support the findings that the Appellant and his people who are currently living on the adjoining property called NAURE do not have customary ownership of land in Botolfo.

3.	That the Island Court misdirected itself in failing to give any or any sufficient weight to the Appellant's evidence that the Appellant and his people who now live in the said NAURE all come out from the "NABEBE" and that they are all direct descendents of the people of Botolfo.

4.	That the Island Court misdirected itself in holding that the Respondent and his mother Nelly were invited back to Botolfo to take back and / or reclaim all the land situated within the general area of Botolfo.

5.	That the Island Court was wrong in law in holding that under the customary law applicable in North West Malekula, the only person who is entitled under custom to claim ownership of all that land within the general area of Botolfo is the Respondent.

6.	That the findings of the Island Court in relation to the Appellant were against the weight of the evidence.

7.	That the judgment of the Island Court in relation to the Appellant was wrong and ought to be set aside.

As to the Third Appellant, David Meltelili, the grounds of his appeal were as follows:-

1.	That the Island Court was wrong in law in holding that under the customary law applicable in North West Malekula, land and property does not pass to another person following agreement between two Chiefs.

2.	That there was no evidence to support the findings that at that Chief Leghori did not agreed to give that the said LEBUGHA to the Appellant and his people

3.	That there was no evidence to support the findings that at that time when Chief Leghori agreed to give the land to the Appellant and his people there were then people living in Botolfo who had better claims to the land than Chief Leghori.

4.	That the Island Court misdirected itself in failing to give any or any sufficient weight to the evidence that the Appellant and his people have been occupying the land at LEBUGHA for about five (5) generations now.

5.	That the Island Court misdirected itself in holding that the Respondent and his mother Nelly were invited back to Botolfo to take back and / or reclaim all the land situated within the general area of Botolfo.

6.	That the Island Court misdirected itself in holding that the only person who is entitled under custom to claim ownership of all that land within the general area of Botolfo is the Respondent.

7.	That the findings of the Island Court in relation to the Appellant were against the weight of the evidence.

8.	That the judgment of the Island Court in relation to the Appellant was wrong and ought to be set aside.

The Respondent opposed all three appeals but did not file any cross-appeal.

SUBMISSIONS

The Appellants filed comprehensive and detailed submissions for which the Court is grateful and those submissions have been considered in full. 

Gregoire Salyor essentially argued that the Island Court should have declared him to be the custom owner of all of the Beteramb land and should not have directed that the boundary to that land should be determined by road and that Wilson Isaiah should not have been declared to be the custom owner of the Beteramb land below the road. It was argued that road was not a true custom boundary. 

Gregoire Salyor argued that there had been numerous difficulties with the process of the Island Court hearing but conceded during the course of submissions that those arguments were somewhat limited in value apart from the fact that an undated letter by one Lenard Bill of Tenmaru was adduced even though Lenard Bill was not called as a witness. It was submitted that the Appellants were denied the right of cross-examination of Mr. Bill.

Gregoire Salyor further submitted that Nelly was not the legitimate daughter of Malkon and that Lesanto had conceived and had Nelly with another person before she married Malkon. It was submitted on behalf of Mr. Salyor that according to the history of the matter, he and his family had been the custom owners of Betaramb before Wilson Isaiah commenced his claim and that there were gaps in the evidence of the Respondent which were not satisfactorily explained.

References were made to the village court decisions in relation to the disputes concerning the land. Other criticisms were levelled at the evidence of the Respondent in the Island Court and new evidence was adduced by consent as to Malkon's marriage to Lesanto.

The Island Court decision was criticized because no reference had been made to the village courts and it was submitted that the Court has misdirected itself in holding against the custom put forward by Gregoire Salyor of the passing of land following a peace agreement and an exchange of weaved hair between two high Chiefs.

In summary, Gregoire Salyor submitted through his counsel that the Court should set aside the Island Court decision that the Beteramb land was bounded by the roadway and it should be held that the land extended down to the seacoast. Alternatively and firmly it was argued that the case should be referred back to the appropriate Malekula Land Tribunal or the Malekula Island Court to re-hear. 

The Second Appellant, Reuben Metrid, submitted that he should have been awarded custom ownership of the land called Lovghes because, as there was no direct blood male descendant to the land, the people of Naure should inherit it. Reuben Metrid also disputed that Nelly was the legitimate daughter of Malkon and that the evidence for the Respondent Wilson Isaiah should have been rejected because insufficient detail to explain the movements of the Respondent and his mother had been given. It was further contended that the Island Court had misdirected itself in various ways as detailed in the submissions and that as there was no direct blood male survivor of the land owning tribe of Botolfo, the people of Naure were entitled to claim custom ownership and that a finding against him in relation to the breadfruit issue did not mean that the whole evidence of Reuben Metrid and his witnesses was not credible, accurate, relevant and reliable.

Again, Reuben Metrid submitted that the declaration made by the Court in relation to him should be set aside and that the people of Naure should be declared the custom landowners excluding the land Betaramb and Lebugha or alternatively that the matter should be referred back to the appropriate Land Tribunal or Malekula Island Court to re-hear.

The Third Appellant, David Meltelili, submitted through his counsel that the people who today live at Lebugha, which is the area set out on the map annexed to the decision, were originally from another place but that there had been a discharge of customary obligations in relation to a dead man from Betervil where his ancestors had come from and that the two Chiefs from Botolfo and Betervil had assisted each other in pig killing ceremonies and, after a tribal war had been settled in recognition of the good relationship between the tribes the land Lebugha was transferred to his ancestors. In summary, it was argued that David Meltelili and his people were rightful custom owners of Lebugha on the basis that their ancestors had lawfully acquired such right from the original custom owners of the land. They had been accepted for a lengthy period and it was disputed that Nelly was the legitimate daughter of Malkon. Reference was also made to the village courts and David Meltelili supported the submissions of the other two Appellants in relation to the misdirection of the Island Court in the ways that were specified in the submissions.

David Meltelili submitted that the decision of the Island Court that he had no right to the Botolfo land or any of it was wrong and should be set aside and that he should be declared to be the custom owner of Lebugha or alternatively that the matter should be referred back to the appropriate Land Tribunal or Malekula Island Court to re-hear.

The Respondent, Wilson Isaiah, submitted that all the Appellants were from various areas outside Botolfo and that the Court was correct in holding that Nelly was the blood descendant of the original custom owner of the land and could pass that right on to her son, the Respondent. It was submitted that all appeals should be dismissed. I also considered the Respondent's submissions in full.

LAW

An appeal from a decision of the Island Court concerning the ownership of land is governed by section 22 of the Island Courts Act [CAP. 167]. The relevant parts of that section are as follows: -

"(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 therefrom to -

(a)	the Supreme Court, in all matters concerning disputes as to ownership of land;
(b)	…

(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)	…"

Two assessors were appointed after a proper process of elimination had taken place. There was no objection by any party to them.

The parties were asked, in accordance with the provisions of Section 5 of the Customary Land Tribunal Act No. 7 of 2001, if they wished this appeal to be withdrawn from the Court and dealt with under that Act. The Respondent did not consent to that course and the matter therefore remained before this Court.

Under section 23 of the Island Court's Act is provided:

"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 … 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".

It must be remembered that this is an appeal hearing and not a rehearing. 

When matters of custom are referred to, this is on the basis of the advice of the assessors who have considered the Island Court decision and who have listened to the submissions made. Their knowledge of custom is drawn upon by the Court in arriving at its decision. However, the decision is that of the Court and not of the assessors. The Court is grateful for their assistance. In this regard S. 10 of the Act provides: -

"Subject to the provisions of this Act an Island Court shall administer the customary law prevailing within the territorial jurisdiction of the Court so far as the same is not in conflict with any written law and is not contrary to justice, morality and a good order".

The Court has considered the transcripts, the evidence, the exhibits produced, and the grounds of appeal and has heard the helpful submissions made by the Appellants and the Respondent.

Under Article 95 (3) of the Constitution it is provided that customary law shall continue to have effect as part of the law of the Republic of Vanuatu. It is clear that in this case, the custom of North West Malekula is that custom ownership of land follows the patriarchal line and if a custom owner dies without male issue, the land may be passed on through the line to the eldest daughter. Once that eldest daughter has obtained the right, upon her demise the custom is that the land continues down the bloodline and passes on to her male issue (in this case the Respondent Wilson Isaiah).

FINDINGS

The Island Court held in this case, having seen and heard the witnesses, that Nelly was in fact the legitimate daughter of Malkon. That decision indeed, contrary to the submissions made against it, was not against the weight of evidence and the justification for the Court to arrive at that conclusion was based on evidence which included that contained in the transcript at pages 4 and 25 of the notes of evidence. The fresh evidence was contained in the extract from J. Graham Miller's Book 6 "Live" as follows: -

"First Marriage: the first Christian marriage took place early in 1904 between Malcon and a widow named Lesante. The bride was paid for in cash, and not in pigs. The Christian conscience had ruled against buying brides with pigs because of heathen associations."

Simply because Lesante was a widow when she married Malkon does not mean that she previously had the child Nelly in her former marriage. Having read all the material and heard all the submissions I consider that the only reasonable conclusion that the Island Court could have reached was that Nelly was indeed the legitimate daughter of Malkon thus, in the absence of surviving male issue, she became the custom owner of the land upon the death of her father. It follows from what I have already said that the right to custom ownership must pass on through the bloodline to her son, the Respondent Wilson Isaiah.

The Three Appellants objected to the evidence of letter of Lenard Bill being admitted to the Court but that evidence in my view is of equal weight to the evidence sought to be adduced by the Appellants from the Learned author Mr. Miller (above). In addition under s. 25 of the Island Court Act [CAP. 136] it is provided that: -

"In any proceeding before it, an Island Court shall not apply technical rules of evidence but shall admit and consider such information as is available."

In my view the Court correctly rejected the supposed custom methods of transfer of land as put forward by the Appellants but fell into error and inconsistency in holding that the Appellant Gregoire Salyor should be the custom owner of any of the Betaramb land. The Island Court's decision in relation to the Appellant Reuben Metrid in my view related to his rights of use and occupation but not to custom ownership. That was reinforced by its finding that Wilson Isaiah must "allocate" and "give" a small piece of land to Reuben Metrid.

The appeals are dismissed but the Island Court decision is varied to the extent that the Respondent Wilson Isaiah is declared to be the sole custom owner of the whole of the Botolfo land but must recognize and make appropriate allocations of land to the Three Appellants for their use and occupation. This Court will not fetter the discretion of Wilson Isaiah as to how those allocations should be made.

In my view this result is in conformity with Article 47 (i) of the Constitution in that it is in accordance with substantial justice and in conformity with custom.

I reject the submission of the Appellants that the case should be referred to the Land Tribunal or back to the appropriate Island Court for re-hearing. Findings in relation to the Respondent's rights have already been made in the Island Court based on the evidence was given at the hearing in 1993. Having done that the Court fell into error in awarding custom ownership of the Betaramb potion of the land to the Appellant Gregoire Salyor.

Despite there being no cross appeal by the Respondent, this Court is entitled to make these orders because Section 23 of the Island Court Act (above) provides that the Court may make any such order as the Island Court could have made. It was open to the Island Court to make the orders that I have referred to above.

As the appeals have failed all Three Appellants must share equally in paying the costs of the Respondent as agreed or as determined by the Court.

Dated AT PORT VILA, this 24th day of November 2004

BY THE COURT

P. I. TRESTON
Judge