Lauru v Kalsakau; Ifira Trustees Ltd v Sope [2015] VUSC 126; Civil Case 291 of 2013; Civil Case 295 of 2013 (25 September 2015)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(CIVIL JURISDICTION)

CIVIL CASE NO. 291 OF 2013

BETWEEN:

TAPALU LAURU, BEN KALPUKAI, KIRIKIRI BAKOKOTO and SONG NAPAKAURANA
Claimants

AND:

TERIKI PAUNIMANU MANTOI KALSAKAU III
First Defendant

AND:

IFIRA TRUSTEES LIMITED
Second Defendant

AS CONSOLIDATED WITH

CIVIL CASE NO. 295 OF 2013

BETWEEN:

IFIRA TRUSTEES LIMITED
First Claimant

AND:

TERIKI PAUNIMANU MANTOI KALSAKAU III, MASSING LAURU, KALPOVI MANGAWAI, BUTUA BAKOKOTO, CHARLEY AIONG, TAWARA KALONIKARA, MANREA KALORIB being the duly appointed Executive Directors of the First Claimant
Second Claimants

AND:

BARAK TAME SOPE AND KALPOKOR KALSAKAU
Defendants

Coram: Justice Mary Sey

Counsel: Mark Hurley for the Claimants
Robert Sugden for the Defendants
Date of Judgment: 25 September 2015

RESERVED JUDGMENT

Introduction

1. Civil Case No. 291 of 2013 (filed on 17 December 2013) and Civil Case No. 295 of 2013 (filed on 16 January 2014) contain a common thread tying each together. In the course of case management, the two cases were consolidated by consent of all parties and it was also agreed that during trial counsel will proceed first with Civil Case No. 295 of 2013: Ifira Trustees Limited & Ors v Barak Tame Sope & Kalpokor Kalsakau.
   

Background

2. These proceedings follow on from the findings and Orders made by the Court of Appeal in its judgment in Sope v Paunimanu [2013] VUCA 32; Civil Appeal 35 of 2013 (22 November 2013). In particular, the Claimants rely on the findings and Orders at paragraphs 69 (4), 77 and 80 therein.
   
3. I have for convenience reproduced hereunder the aforementioned paragraphs from the Court of Appeal judgment:
   

"69 (4) The Ifira community meetings

There was little focus on this issue in the appeal hearing. In our view, its meetings (at least so far as they relate to ITL and the Ifira Trust) should be conducted in the normal way for such meetings. No doubt that means that, in the first place, the Paramount Chief should call the meeting and set the agenda (after such consultation as he chooses). The evidence suggests a resolution is carried if it is supported by a majority of those eligible to vote. There is no evidence to suggest a vote is not carried unless it has unanimous support of every community member who is at the meeting.

77. There is an obvious problem about the running of ITL in the immediate future. At present there are three shareholders, and at least in a practical sense 31 directors. In our view the sensible thing is to allow things to stand as they are for 4 weeks, while the Paramount Chief if he decides to can call a meeting of the Ifira community to decide whether to nominate others to replace the shareholders who can appoint directors.
    

We will allow the appeal to the extent of setting aside the orders and declarations of the primary judge relating to the holding of a meeting to consider and to pass certain resolutions. Those orders operate immediately. As we have said, we well understand why the primary judge made those orders. The outcomes he had in mind can ultimately be achieved by the Ifira community meeting to change its nominated shareholders, if it wishes to do so. If existing nominees refuse to accept the will of the Ifira community, the Court may direct them to do so or if it is necessary direct the amendment to the share register.

80. Finally, we set aside or refine the declaration of the primary judge about the relationship of the shareholders of ITL to the beneficiaries of the Ifira Trust, and we substitute a declaration that the shareholders of ITL from time to time (other than the share held by the Paramount Chief) hold their respective share or shares as nominees of the Ifira Trust, and must transfer the share or shares held by them or any of them in accordance with a resolution of the beneficiaries of the Ifira Trust passed at a meeting of these beneficiaries duly convened in accordance with the practice of the Ifira community. That declaration also operates immediately."

The Claim

4. At paragraphs 10 - 13 of their Supreme Court Claim in Civil Case No. 295 of 2013 the Claimants plead as follows:
   

"10. Pursuant to the terms of paragraph 77 of the CA judgment, the Paramount Chief gave notice in respect of his calling of a meeting of the Beneficiaries of the Ifira Trust to be held on Friday 13 December 2013 at the Warwick Le Lagon Resort & Spa Conference Centre.

11. The said meeting called for 13 December 2013 was held on that date and certain resolutions were passed by the Beneficiaries in attendance at that meeting as follows:

1. That the 1 ordinary share held by Barak Tame Sope and the 1 ordinary share held by Kalpokor Kalsakau in Ifira Trustees Limited ("ITL") be transferred.
   
2. That Mr.Sope's and Mr. Kalsakau's respective shares held in ITL be transferred as follows:
   

1. Mr. Sope's share be transferred to Ephraim Kalsakau; and
   
2. Mr. Kalsakau's share be transferred to Russell Bakokoto.
   
100. That the shareholders of ITL should pass a special resolution to change the issued share capital from 3 ordinary shares to 31 ordinary shares.
     

4. That in addition to the 1 ordinary share held by the Paramount Chief that 1 ordinary share be issued to the current representatives of each of the 30 Warakalis.
   
5. That part of clause 5 (a) of the objects of the Memorandum of Association which now reads:
   

"(being the members from time to time of the Blakniu, Blakuita, Blakmalu and Blaknawi clans)"

be deleted and replaced by:

"(being the Chief and members from time to time of the thirty (30) Warakalis of Ifira Tenuku more particularly enumerated in the Ninth Clause and herein collectively referred to as "the people of Ifira")".

12. The said Beneficiaries' meeting held on 13 December 2013 was:

1. convened in accordance with the terms of the CA Judgment, including, in accordance with the practice of the Ifira community; and
   
2. all of the resolutions passed at that meeting are valid and binding on the Beneficiaries, including, the Defendants in their capacity as nominee shareholders of ITL.
   

13. In the premises, upon request, the Defendants are bound to execute share transfers to give effect to the resolutions passed at the said Beneficiaries Meeting."

5. The Claimants seek the following reliefs (inter alia):
   
   1. A declaration that the Beneficiaries' Meeting called by the Paramount Chief and held on 13 December 2013 at the Warwick Le Lagon Resort & Spa Conference Centre was held in accordance with the terms of the CA judgement, including, in accordance with the practice and custom of the Ifira Community.
      
   2. A declaration that the resolutions passed at the said Beneficiaries Meeting on 13 December 2013 are valid and binding on the Defendants.
      
   3. That the Defendants shall execute share transfers within 7 days of being provided with them to give effect to the resolutions passed at the said Beneficiaries Meeting on 13 December 2013.
      

The Defence

6. The Defendants accept that there was a meeting called by the Paramount Chief at the Le Lagon Conference Centre on 13 December 2013 and the Notices called for Beneficiaries of the Ifira Trust to attend. The Defendants also accept that a large number of people attended, that they voted almost unanimously for the Defendants' Shares to be transferred and unanimously (apart from one abstention) as to who the shares were to be transferred to.
   
7. The Defendants further accept that they are, as registered shareholders in Ifira Trustees Limited, merely nominees for the beneficiaries of the Ifira Trust and required to deal with those registered shares as the beneficiaries require them to. The Defendants also accept that a requirement of the beneficiaries is a requirement for the above purpose if it is the free and uncoerced will of the majority of them and does not have to be the unanimous will.
   
8. Beyond these concessions, the Defendants deny each and every allegation contained in paragraphs 10, 11 12 and 13 of the Claim and the Defendants further say that the meeting so called was not convened in accordance with the practice of the Ifira Community as the Court of Appeal had stipulated. Furthermore, the Defendants submit that the meeting convened at Le Lagon on 13 December 2013 did not follow the Court of Appeal's "road map".
   
9. In their Counterclaim, the Defendants say that on 20 December 2013 a duly convened annual general meeting of ITL took place attended by the only two living registered shareholders, the Defendants and the sole remaining director of ITL, Mr. Peter Tarapakou Motoutoma. Furthermore, the Defendants say that at that annual general meeting the following people were elected as Directors: Nato Tawia, Peter Tulangi, Tapalu Lauru, Kirikiri Bakokoto, Kalpokor Kalsakau and Barak Sope.
   

AND the Defendants/Counterclaimants seek:

A declaration that the directors of Ifira Trustees Limited are the 7 following men: Peter Tarapakou Motoutoma, Nato Tawia, Peter Tulangi, Tapalu Lauru, Kirikiri Bakokoto, Kalpokor Kalsakau and Barak Sope.

10. In their Reply to Amended Defence and Defence to Counterclaim the Claimants pleaded that the purported AGM on 20 December 2013 was not duly convened for the following reasons:
    
    1. First, no notice of it was given to the Paramount Chief in his capacity as the successor of his late father and the fact that the vote attached to his late father's one ordinary share in ITL had (since his father's death) been exercised (as intended) by the Paramount Chief;
       
    2. Second, special notice in respect of the proposed removal of a director of ITL was not given in advance of the purported AGM contrary to the requirements of Article 94 of ITL's Articles of Association and s. 196 (2) of the Companies Act; and
       
    100. Third, no notice of the intended removal of the directors was given to ITL [and in order that notice could be given to the existing directors] as required by s. 196 of the Companies Act.
         
    4. In addition, the Claimants pleaded that the purported appointment by the Defendants of 6 new directors was in contempt of this Court's Orders of 19 December 2013.
       
11. In relation to the terms of paragraphs 55-56 of the CA's judgment, the Claimants in their "Synopsis of Claimants' Final Submissions" have refined the declaration sought at paragraph 3 of their prayer of relief as follows:
    
    1. a declaration that the resolutions passed in accordance with motions 1, 2 and 3 at the said Beneficiaries' Meeting on 13 December 2013 are valid and binding on the Defendants; and
       
    2. that the then registered shareholders of Ifira Trustees Limited should consider the resolutions passed in accordance with motions 4, 5 and 6 at the said Beneficiaries Meeting on 13 December 2013 (paragraph 56 of the CA's judgment).
       

Agreed Facts

12. Ifira Trustees Limited ("ITL"), is a local company incorporated pursuant to the provisions of the Companies Act [CAP 191], as amended, and is able to sue and be sued in its corporate name and style.
    
13. ITL is the trustee of the Ifira Trust established by the Deed dated 26 June 1978 ("the Ifira Trust").
    
14. At the time of its incorporation on 18 May 1978, the 3 shareholders of ITL were:
    

a) Chief Graham Kalsakau;

b) Barak Sope; and

c) Kalpokor Kalsakau.

15. The Defendants have held and continue to hold their shares as nominees for the beneficiaries of the Ifira Trust required to deal with their shares (by transfer of otherwise) as might be required by the wishes of the beneficiaries.
    
16. The wishes of the beneficiaries can be expressed by a resolution passed at a meeting of the beneficiaries conducted in the normal way for such meetings by a majority of those eligible to vote.
    
17. Chief Graham Kalsakau died on 26 May 1989.
    
18. Mantoi Kalsakau III was given a grant of Administration dated 11 July 2014 of the estate of Chief Graham Kalsakau II in Probate Case No: 6 of 2014.
    
19. The Paramount Chief (Teriki Paunimanu Mantoi Kalsakau III) gave notice in respect of his calling of a meeting of the Beneficiaries of the Ifira Trust to be held on Friday 13 December 2013 at the Warwick Le Lagon Resort & Spa Conference Centre.
    
20. The parties also filed a bundle of Agreed Documents as follows:
    
    1. Memorandum of Association of Ifira Trustees Limited (ITL) registered on 18 May 1978.
    2. Article of Association of ITL.
    3. Deed between Financial Service Limited, the Settlor, and ITL, the Trustee, dated 26 June 1978 (the Ifira Trust).
    4. Grant of Administration of the estate of Graham Kalsakau II given to Mantoi Kalsakau III dated 11 July 2014 in Probate Case N0. 6 of 2014.
       
21. The evidence adduced by the parties was by way of sworn statements and cross-examination of some of the deponents of the statements.
    

Evidence For The Claimants

22. The Claimants' evidence was essentially contained in the following documents admitted in evidence as follows:
    

Exhibit C1	- Four (4) judgments as follows:
Ifira Trustees Ltd v Sope – Interim Judgment [2013] VUSC 131; Civil Case 164-10; Sope v Paunimanu [2013] VUCA 32; Civil Appeal 35 of 2013 (22 November 2013); Sope v Ifira Trustee Ltd [2014] VUCA 5; CAC 03 0f 2014 (4 April 2014). Kalsakau v Lauru [1995] VUMC 8; Case 04 of 1993 (13 March 1995);
Exhibit C2 -		- DVD of ITL Beneficiaries Meeting on 13 December 2013 at Le Lagon Resort (apart from the voice commentary) admitted by consent.
Exhibit C3 - -		Bundle of list of beneficiaries admitted by consent (but with the specific reservation that it was not conceded by the Defendants that any of the names were in fact beneficiaries of the Ifira Trust).
Exhibit C4 (A) -		Sworn Statement of Teriki Mantoi Kalsakau III sworn on 18 December 2013 with annexure TMK 1.
Exhibit C4 (B) -		Sworn Statement of Teriki Mantoi Kalsakau III [No.2] sworn on 22 May 2014 with annexure TMK 2.
Exhibit C4 (C) -		Sworn Statement of Teriki Mantoi Kalsakau III [No.3] sworn on 24 April 2015 with annexures TMK 3, TMK4 & TMK5.
Exhibit C5 -		Sworn Statement of Joshua Kalsakau sworn on 18 December 2013 with annexure JK1.
Exhibit C6 -		Sworn Statement of Joshua Kalsakau [No.2] sworn on 24 April 2015.

Exhibit C5 - Sworn Statement of Joshua Kalsakau sworn on 18 December 2013 with annexure JK1.

Exhibit C6 - Sworn Statement of Joshua Kalsakau [No.2] sworn on 24 April 2015.

Exhibit C7 - Sworn Statement of Kalpeau Kalsakau sworn on 27 April 2015.

Exhibit C8 - Sworn Statement of Mauterei Steven Kalsakau sworn on 19 December 2013.

Exhibit C9 - Sworn Statement of Butua Bakokoto sworn on 24 April 2015.

Exhibit C10 - Sworn Statement of Laura Saurei sworn on 24 April 2015.

Exhibit C11 - Sworn Statement of Bruce Lauru sworn on 27 April 2015.

Exhibit C12 - Sworn Statement of Filiano Kalsal sworn on 27 April 2015.

Exhibit C13 - Sworn Statement of Fatani Sope [No.2] sworn on 24 April 2015 with annexures FS1 & FS2.

Exhibit C14 - Sworn Statement of Denny Kalmet sworn on 29 July 2014.

Exhibit C15 - Sworn Statement of Ian Jeremiah Mariasua sworn on 24 April 2015 with annexures A & B.

Exhibit C16 - Sworn Statement of Chief Simeon Poilapa Tivatelapa sworn on 24 April 2015 with annexures A, B & C.

Exhibit C17 - Sworn Statement of Chief Raymond Marongoe sworn on 27 April 2015 with annexures A & B.

Exhibit C18 (A) - Sworn Statement of Walter Malau sworn on 24 April 2015.

Exhibit C18 (B) - Sworn Statement of Freddy Quarani sworn on 24 April 2015.

Exhibit C18 (C) - Sworn Statement of Amos Tolang sworn on 24 April 2015.

Exhibit C19 - Sworn Statement of Michael Mangawai sworn on 20 April 2015 with annexures MM1 & MM2.

Exhibit C20 - Sworn Statement of Abel Kalmet sworn on 17 March 2014 with annexure AK1.

Exhibit C21 - Minutes of the ITL Beneficiaries Meeting held on 4th December 1999 at Farea - Malarua Narsong Tasongsong Ifira Tenuku.

Exhibit C22 - Employment warning letters addressed to Albert Sablan.

Evidence For The Defendants

23. For their part, the Defendants relied on letters and sworn statements which were tendered and admitted in evidence as follows:
    

Exhibit D1 - Letter dated 23 December 2013 addressed to Albert Sablan from the Acting General Manager of Ifira Port Development & Services Company Limited.

Exhibit D2 - Sworn Statement of Barak Sope filed on 16 July 2014 with annexures A, B & C.

Exhibit D3 - Further Sworn Statement of Barak Sope filed on 15 May 2015 with annexure A.

Exhibit D4 - Sworn Statement of Nato Taiwia filed on 16 July 2014.

Exhibit D5 - Further Sworn Statement of Nato Taiwia filed on 15 May 2015.

Exhibit D6 - Sworn Statement of Kalpokor Kalsakau filed on 13 February 2014 with annexure A.

Exhibit D7 - Sworn Statement of Kalpokor Kalsakau filed on 17 July 2014 with annexures A & B.

Exhibit D8 - Sworn Statement of Kalpokor Kalsakau filed on 13 May 2015 with annexures A, B & C.

Exhibit D9 - Sworn Statement of Kalpokor Kalsakau filed on 16 July 2014.

Exhibit D10 - Sworn Statement of Tom Bethuel filed on 13 May 2015.

Exhibit D11 - Sworn Statement of Albert Sablan filed on 12 May 2015 with annexure A.

Exhibit D12 - Sworn Statement of Roger Kalpukai filed on 18 July 2014.

Exhibit D13 - Sworn Statement of Ati George Sokomanu filed on 26 June 2014.

Exhibit D14 - Sworn Statement of Jackson Kalfabun filed on 23 September 2014 with annexure A.

Exhibit D15 - Sworn Statement of Tapalu Lauru filed on 17 December 2013 with annexures A & B.

Exhibit D16 - Sworn Statement of Virasan Bakokoto to be found on page 291 in Book 3 Vol. 201-300.

Exhibit D17 - Sworn Statement of Ben Chichirua to be found on page 150 in Book 2 Vol. 101-200.

Exhibit D18 - Sworn Statement of Betha Misseve to be found on page 274 in Book 3 Vol. 201-300.

Exhibit D19 - Sworn Statement of Hathy Kalpukai to be found on page 155 in Book 2 Vol. 101-200.

Exhibit D20 - Sworn Statement of Peter Tulangi to be found on page 128 in Book 2 Vol. 101-200.

Exhibit D21 - Sworn Statement of Eddie Kalpukai to be found on page 297 in Book 3 Vol. 201-300.

Exhibit D22 - Sworn Statement of Estick Saurei to be found on page 17 in Book 1 Vol.1-100.

Exhibit D23 - Sworn Statement of Tarilasi Saurei to be found on page 292 in Book 3 Vol. 201-300.

Exhibit D24 - Sworn Statement of Alick Kalmelu Motoutorua to be found on page 153 in Book 2 Vol. 101-200.

Exhibit D25 - Sworn Statement of Lebu Kaltereke to be found on page 191 in Book 2 Vol. 101-200.

Exhibit D26 - Sworn Statement of Maki Kalworai to be found on page 23 in Book 1 Vol. 1-100.

Exhibit D27 - Sworn Statement of Tom Kalsale to be found on page 97 in Book 1 Vol. 1-100.

Exhibit D28 - The rest of the 856 Sworn Statements less the ones that were cross-examined and have individual markings.

Exhibit D29 - Sworn Statement of Anastasia Sope filed on 18 July 2014.

Exhibit D30 - Sworn Statement of Chief Denie Kalmet filed on 17 July 2014.

Exhibit D31 - Sworn Statement of Bruce Lauru filed on 24 September 2014.

Exhibit D32 - Sworn Statement of Chief Andrew Bakoa Kalpoilep filed on 11 July 2014.

The Issues

24. Although no agreed issues were filed by the parties, the Claimants have formulated the following issue as the ultimate issue for the Court to decide:
    
    • Was the meeting called by the Paramount Chief of the Beneficiaries of the Ifira Trust held on Friday 13 December 2013 at the Warwick Le Lagon Resort & Spa Conference Centre "duly convened in accordance with the practice of the Ifira community"? (paragraph 80 of the Court of Appeal's judgment in Sope v Paunimanu [2013] VUCA 32)
      
    • If the answer to paragraph 1 is yes, should the relief sought at paragraphs 2, 3, 4 and 6 (or any of them) of the Supreme Court Claim filed on 16 January 2014 be granted and/or any other relief?
      
    • If the answer to paragraph 1 is no, should the relief sought at paragraphs 1 and 2 (or either of them) of the Amended Defence and Counterclaim filed on 14 April 2014 be granted and/or any other relief?
      
25. Having narrowed down the issues, it seems clear that the questions as to whether that meeting called by the Paramount Chief was valid and the consequences of the motions passed at that meeting are the main triable issues. However, intertwined with this ultimate issue are the following issues:
    
    • Could the meeting be considered to have been held "in the normal way for such meetings"?
      
    • Were the Defendants justified in not accepting the results of that meeting as an expression of the will of the owners of the shares?
      
    • Were the reasons proffered by the Defendants in their "proforma" sworn statements for non-attendance of the meeting valid reasons?
      
26. It is timely to mention that the Court of Appeal did not state where the meeting to be convened by the Paramount Chief should take place.
    

Discussion and Determination

27. In essence, the Claimants submit that in its judgment in Sope v Paunimanu the Court of Appeal provided a "road map" to the Paramount Chief of Ifira (in respect of the vote attached to the Paramount Chief's share in Ifira Trustees Limited (ITL), the Defendants (as the only two nominee shareholders in ITL for the beneficiaries of the Ifira Trust), and to the Ifira community (the beneficiaries) as to the way forward to resolve issues relating to whom might hold the two shares in a nominee capacity in ITL in the future.
    
28. The Claimants say it is abundantly clear, from those paragraphs cited from the Court of Appeal's judgment, that the only person who was empowered to call a meeting of the Ifira community, to decide whether to replace the nominee shareholding held in Ifira Trustees Limited (ITL) by Barak Sope and Kalpokor Kalsakau, was the Paramount Chief.
    
29. The Claimants further submit that the Paramount Chief followed that "road map" and convened a meeting of the beneficiaries of the Ifira Trust in accordance with the practice of the Ifira Community at Warwick Le Lagon Resort & Spa Conference Centre (Le Lagon) on Friday 13 December 2013. The Claimants further submit that at that meeting a number of motions (in terms consistent with paragraphs 53-56 of the Court of Appeal's judgment) were proposed and passed.
    
30. For their part, the Defendants submit that the meeting convened at Le Lagon on Friday 13 December 2013 did not follow the Court of Appeal's "road map". The Defendants say that the Paramount Chief's powers to call meetings and set agendas derive from his position as Paramount Chief and they are his customary powers exercisable within the Ifira community under the custom of Ifira.
    
31. Furthermore, the Defendants say that it cannot be presumed that the Court of Appeal meant that the meeting it referred to at paragraph 69 could be a "company meeting" as the Paramount Chief had no powers to call a meeting of the company and as Chairman he had no powers to call a meeting of the beneficiaries.
    
32. It is further contended by the Defendants that the words in paragraph 69 of the judgment which read: "in our view its meetings (at least so far as they relate to ITL and the Ifira Trust) should be conducted in the normal way for such meetings," must be understood as being based on a view of the Court of Appeal that, if the issue is set for determination at a traditionally held and run Ifira Community meeting a beneficiary who does not attend and vote would be unreasonably failing to give his input.
    
33. The Defendants further contend that it must be presumed that the Court of Appeal's references to the Ifira Community meeting and Paramount Chief were intended to preclude any idea that it could be a meeting run and controlled by the Claimants and that the Paramount Chief was meant to divorce himself from his position of Chairman for the purposes of running the meeting as he would normally run an Ifira Community meeting – i.e. having regard only to the interests of the Ifira Community. The Defendants also contend that the meeting must be one which the Ifira Community normally attend and have normally attended for hundreds of years and if the meeting that the Court of Appeal had in mind was a meeting of the Ifira Community, it had to be held on Ifira Land.
    
34. At paragraph 69(4) of the Court of Appeal's judgment dated 22 November 2013 the Court of Appeal expressed its view that the meetings of the Beneficiaries: "... (at least so far as they relate to ITL and the Ifira Trust) should be conducted in the normal way for such meetings. No doubt that means that, in the first place, the Paramount Chief should call the meeting and set the agenda (after such consultation as he chooses)."
    
35. The evidence before this Court is that the Paramount Chief "gave notice in respect of his calling of a meeting of the Beneficiaries of the Ifira Trust to be held on Friday 13 December 2013 at the Warwick Le Lagon Resort & Spa Conference Centre [Le Lagon]." Indeed, this is reflected in paragraph 8 of the Agreed Facts filed by the parties on 18 May 2015.
    
36. The evidence is also that "after further consultation with Directors of ITL" the Paramount Chief decided that it would be inappropriate for the Beneficiaries' meeting to be convened at his farea and it would be better if it was held at Le Lagon for the reasons given at paragraphs 9, 11 and 12 of Exhibit C4(A); paragraphs 5 6, 7, 8 and 9 of Exhibit C4(B); and paragraphs 33 and 34 of Exhibit C4(C) and amplified in his answers during cross-examination.
    
37. The summary of the reasons why the Paramount Chief chose Le Lagon as the venue for the Beneficiaries' meeting on 13 December 2013 is set out in paragraph 9 of Exhibit C4(A) as follows:
    
    1. It was the practice of his father when he was the Paramount Chief, to forbid the holding of ITL or Beneficiaries' meetings at his farea to ensure a clear separation between Ifira under the chieftainship and Ifira interests in business
       
    2. The suitability and capacity at Le Lagon to ensure that all who wished to attend could be accommodated inside to participate in the meeting and for the necessary and proper documentation of the proceedings for future reference. The farea of Ifira no longer has the capacity to hold the presence of all of its members of beneficiaries of the Ifira Trust; and
       
    100. During previous Beneficiaries' meetings held at his farea in 2010 (i.e. on 6 November 2010 & on 20 November 2010) and in 2011 (at ITL's premises on 19 February 2011) where tents and sound systems were set up, a number of Messrs Sope's and Kalsakau's supporters uprooted the tent poles in an attempt to hurl them at other persons present. True copies of the Minutes of those meetings are exhibited to the Paramount Chief's second sworn statement filed on 22 May 2014.
         
38. It is pertinent to note that in relation to paragraph 9(b) of Exhibit C4(A) and the Paramount Chief's evidence, there was no cross-examination of the Paramount Chief to suggest that the Le Lagon Conference Centre does not have the capacity to hold the presence of all of the persons who are beneficiaries of the Ifira Trust and for the proper processes and documentation of the proceedings for future reference. The Paramount Chief was the chairman of that meeting and the DVD (Exhibit C2) shows some of the processes that occurred.
    
39. The practice by the Paramount Chief of convening different types of meetings held in the exercise of his powers as the Paramount Chief which are held at the Paramount Chief's farea, on the one hand, and meetings which are held for beneficiaries of the Ifira Trust in relation to the business of ITL, on the other hand, was the subject of vigorous cross-examination.
    
40. In answer to questions put to him by counsel Mr. Sugden, the Paramount Chief said: "I as the Paramount Chief have the authority to hold a meeting at whatever venue I choose and as this, there were so many people, that the Farea couldn't hold, for such a meeting so we had to hold the meeting at Le Lagon, and it was a business meeting, not a custom meeting."
    
41. The Claimants' evidence is that the Paramount Chief has the absolute authority in custom to decide where a meeting of the beneficiaries of the Ifira Trust is held. The Paramount Chief's evidence is that he became the Paramount Chief following the death of his late father and as the first born heir. There was a meeting of his Warakali (family group) and they recognized him as their next Paramount Chief. After that meeting there was a meeting of the Ifira community and they signified their acceptance of him as their Paramount Chief by raising their hands in support. He was then ordained by a number of the Paramount Chiefs of Efate: (paragraphs 5, 6 and 7 of the Paramount Chief's sworn statement [No.3].)
    
42. In addition to the Paramount Chief's evidence in relation to his ordination, evidence has been given by the following persons regarding the ordination of the Paramount Chief by a number of other Paramount Chiefs of Efate, namely:
    
    1. Paramount Chief Raymond Marongoe of Emua Village, North Efate who participated in the ordination;
       
    2. Pastor Ian Jeremiah Mariasua (who was present and whose Paramount Chief Noel Mariasua of Emau Island, participated in the ordination); and
       
    100. Paramount Chief Simeon Poilapa Tivetelapa filed on 27 April 2015 (who was present and whose father, Paramount Chief Peter Poilapa, participated in the ordination).
         
43. During further cross-examination of the Paramount Chief, Mr. Sugden directed him to page 30 of his annexure of his first sworn statement. This is a letter from Mr. Sugden to Mr. Hurley dated 9 December 2013 in which counsel states:
    

"My clients are quite happy to put up the tents and install the sound system at the nakamal – which is what usually happens – and if your client does not want to use the nakamal, they are prepared to put them up on the football ground or at the Church."

Mr. Sugden then asked the Paramount Chief: "So if you didn't want to have it in your farea, what was wrong with having it in those other places"?

The Paramount Chief replied: "I have already explained to the Court that the reason we held the meeting at Le Lagon was due to space so people could vote quietly without any disturbance. I have repeated this many times."

It was also put to the Paramount Chief that the decision to change the venue to Le Lagon was made when he realised that all of the people wanted to go to his farea and vote him out. However, he denied this suggestion. Later he went on to say "the meeting at Le Lagon was a peaceful meeting. A big meeting. That's what I can say."

44. The evidence that the meeting ran smoothly without any security risk is given in the sworn statements of 3 police officers who were present: Walter Malau, Freddy Quarani and Amos Tolang, filed on 24 April 2015 and admitted in evidence as Exhibit C18 (A), (B) & (C) respectively. I accept this piece of unchallenged evidence.
    
45. Additional evidence from the following witnesses is given in support of the Paramount Chief's decision to convene the meeting on 13 December 2013 at Warwick Le Lagon Resort & Spa Conference Centre: sworn statement of Joshua Kalsakau [No.2] (Exhibit C6), sworn statement of Kalpeau Kalsakau (Exhibit C7) and sworn statement of Mauterei Stephen Kalsakau (Exhibit C8)
    
46. Be that as it may, it is clear that the primary challenge by the Defendants is as to the venue of the beneficiaries meeting of 13 December 2013. Essentially, the Defendants' evidence is that the meeting was held on Erakor land and not Ifira land and that is the only reason why the Defendants say the meeting was invalid. All of the "proforma" sworn statements filed by the Defendants contain the objection to the meeting being held outside Ifira lands as a reason for not attending. This contention is also supported by the evidence of Ati George Sokomanu (DW7) who is quoted in the Claimants' submissions as saying "My lady, what should have been done was for the chief to call the meeting at his own nasara"
    

Is The Land At Le Lagon (Including The Conference Centre) Public Land?

47. At the conclusion of the trial, the Court had raised the question with counsel of the significance of the acquisition by the Government of the Urban land of Port Vila (including the Conference Centre at Warwick Le Lagon) as Public Land. The Court drew counsels' attention to the Court of Appeal's recent judgment in Kalourai v Republic of Vanuatu [2015] VUCA 4. Reference is made in Kalourai's case to the Court of Appeal's judgment in an earlier Court of Appeal judgment of Kalomtak Wiwi Family v Ministry of Lands [2005] VUCA 29.
    
48. It is noteworthy that the Court of Appeal concluded in both cases that the Agreement that was entered into on 17 July 1992 between the Government of the Republic of Vanuatu and representatives of the former custom owners of the Port Vila Urban Land Corporation which dealt with compensation payments was binding. In Kalomtak Wiwi Family's case, consideration was given to the 1992 Agreement which included compensation to representatives of Erakor Village in respect of that area upon which a commercial lease with title no. 11/OY14/006 has been granted and where the business of Warwick Le Lagon Resort & Spa, including its Conference Centre, is currently being conducted.
    

The Court of Appeal stated thus:

"On its face the agreement of 17 July 1992 was a full and final settlement of the rights of compensation of the custom owners in respect of that compulsory acquisition. An agreed sum was paid to the representatives of the custom owners. The Government's full responsibility was thereby met. It has never been contended that what occurred was an improper use of statutory power and therefore subject to judicial review. A party with an interest could have challenged the terms or conditions of the contract if they have been able to establish standing to do so."

And subsequently:

"The controlling position is really very simple. The Government lawfully took as public land the whole of Port – Vila urban area. It thereafter became the legal owner of it. The custom owners who suffered as a result were entitled to be compensated for their loss."

49. In Kalourai's case, the Court of Appeal stated at paragraph 15 as follows:
    

"The Court of Appeal concluded that the 1992 Agreement was in full settlement of all rights to compensation by custom owners of the land taken; that there had been no challenge to the legality or propriety of the 1992 Agreement at the time; and that there was no fraud or lack of knowledge or understanding of what was happening by Family Wiwi in 1992 when the agreement was reached."

50. Suffice it to say that, in this present case, it is common ground that the registered lease of the resort is held of the Government as lessor.
    
51. Nonetheless, the Defendants contend that the fact that this land has been acquired by the Government makes no difference to this aspect of the case. They say it is clear that a large number of people who considered that they had a legitimate interest entitling them to vote at the meeting at Le Lagon objected to its being held at a place that was not within Ifira land and did not attend for that reason. The Defendants further submit that this objection does not depend for its force on who actually owns the land (i.e. whether the Government or the Erakor community) – it is enough if it is not owned by Ifira.
    
52. Furthermore, the Defendants say that there was fear of violence from the Erakor people and this fear was based on the belief that the Erakor people regarded the convention centre as being built on land belonging to the Erakor community. It is a fear that was given in paragraph 7 of nearly all of the 856 pro forma sworn statements as a reason for not attending the meeting on 13 December 2013.
    
53. The Claimants' evidence is that permission was sought and was given by the Chief of Erakor Village, Denny Kalmet (as deposed in his sworn statements filed on 17 July 2014 and 29 July 2014) for the meeting to take place on Erakor land. However, the Defendants contend that it is of particular significance that no attempt was made to inform the beneficiaries that the permission of the Paramount Chief had been obtained and a custom ceremony performed and no attempt was made to inform them that the police would be present. The Defendants say that the beneficiaries' fear of violence from the Erakor community, which must have been expected by the Claimants, as evidenced by their approach to the Erakor Chief, were simply not addressed by them. Furthermore, that it is also of great significance that the Claimants did nothing to allay the beneficiaries' concerns that the meeting should not be held outside Ifira lands.
    
54. The Defendants further contend that it is clear that by 13 December 2013 the beneficiaries, especially those wanting to get rid of the Claimants ("the opposition") had to be extremely frustrated and it can be presumed to have been badly wanting to have their vote. The decision that so many of them made to not attend Le Lagon and so miss out on their opportunity to finally vote must have been extremely hard for them to make. It can only be concluded that their reasons given for not attending were genuine and that, for them, holding the meeting at Le Lagon was extremely significant.
    

Defendants' Analysis Of the "Proforma" Sworn Statements

55. The Defendants submit that by far the great majority of the statements all had the same 4 reasons in paragraph 7, being Nos (iii) to (vi) of the list of Possible Objections (Annexure B to sworn statement of Barak Sope filed 16/07/2014 i.e. Exhibit D2). The Defendants further submit that only those that were different to the vast majority are enumerated below as follows:
    
    1. Statements Listing Only 3 Objections Consisting Of Nos (IV) To (VI) Of The List Of Possible Objections
       

Book 1: Nos 72 to 79 inclusive and 86 to 89 inclusive. Nos 70 & 71 have 4 reasons but in both possible objections (iii) (my Matarau Chief told me......) is crossed out in paragraph 7 having been written there. All of these are Matarau Teufi (14 in total)

Book 2: Nos 141 to 151 inclusive – all Teufi. Nos 145, 146 & 147 all have possible objections (iii) written and crossed out (Total =11).

Book 3: Nos 253, 256 to 259 inclusive, 274 and 291. In 253 & 256 possible objection (iii) is written and crossed out. All are Teufi (7 in total).

Book 4: Nos 301, 338, 346, 348, 354 and 396. All are Teufi (6 in total)

Book 5: Nos 401, 405, 412, 415, 416, 417, 432, 434, 437, 445 to 449 incl. All are Teufi (14 in total)

Book 6: Nos 531 to 534 incl, 541, 542, 566, 569 to 592 incl, 598 & 600. All are Teufi (33 in total).

Book 7: Nos 601, 609 to 613 incl, 615, 616, 621, 623, 624, 625, 629, 631 to 634 incl, 636, 637, 648, 650, 652, 653, 661, 664, 675, 680, 687, 688, 690 & 696. All are Teufi (32 in total).

Book 8: Nos 707, 735, 736, 757, 775, 777, 780, 781, 787 to 793 incl. All are Teufi (15 in total).

Book 9: Nos 801, 815, 820, 827, 828, 840, 841, 842, 895, 847 & 848. All are Teufi (11 in total).

2. No Reasons Given In Paragraph 7
   

A number of the sworn statements have no reasons given in paragraph 7 for the deponent not attending. They are Nos: 514, 524, 525, 552, 682, 683, 685, 692, 694, 717, 718, 756 and 761. (13 in total).

100. Incomplete Sworn Statements

In the compilation of Book 9, single pages have been left out of 12 of the sworn statements. There are 11 of them which have omitted the middle page and, one of them, the first page. These are the following: Nos: 805, 809, 811, 814, 819, 823, 824, 831, 846, 850, 854 and 856.

4. INDIVIDUAL CASES
   

The following are sworn statements in which the reasons given in paragraph 7 do not fit any group pattern.

1. No 17, Estick Saurei included the 4 usual reasons and added her own further reason.
2. No 66, Albert Sablan added his own further reason to the usual 4 reasons.
3. No 80, Tousuru Saurei, gave only two reasons, - (iv) & (v) of schedule B.
4. No 92, Youth Bakokoto, gave the usual 4 reasons but in a changed order.
5. No 128, Peter Tulangi, gave his own reasons.
6. No 345, Kalosen Kaltabang, gave the usual 4 of the reasons but in a changed order.
7. No 370, Kaltangi Napakaurana, gave 3 of the schedule B reasons but omitted (vi) instead of (iii)
8. No 431, Toulamen Napakaurana, gave 3 of the schedule B reasons but omitted (v) instead of (iii)
9. No 465, Andrew Kalsakau, gave 2 reasons of his own in
10. No 504, Jimmy Kalpukai, gave 3 of the schedule B reasons but in a different order from usual.
11. No. 608, Loreen Kalo, gave only 3 reasons but included (iii) of schedule B and omitted (v)
12. No. 620, Kalowas Kaltabang, gave only 3 reasons but included (iii) of schedule B and omitted (vi)
13. No 630, Ann-Marie Saurei gave the usual 4 reasons but in a different order from usual.
14. No 647 Dolsie Kaltabang, gave the usual 4 reasons but in the same order as in 630.
15. No 686, Ioane Simon Onawa, said he attended Le Lagon and expressed his disapproval.
16. No 720, Kalpokor Kalsakau, gave his own reasons.
17. No 742, Makau Kalsakau, gave 2 reasons of his own and then the 4 usual reasons from schedule B.
18. No 750 Caron Kalsakau, gave his own reasons.
    
56. The Claimants submit that little or no weight should be given to the contents of the 856 sworn statements. There are numerous reasons for that submission. Those reasons include that the persons who made those statements do not purport to give evidence that they are expert in Ifira custom. To the contrary, in paragraph 3 of their pro forma statements they state "That is in accordance with Ifira custom as I understand it."
    
57. The Claimants oppose the evidence given by those persons that their primary duty is to their matarau chief rather than to the Paramount Chief. The Claimants' position is that, in Ifira custom, the primary duty is owed to the Paramount Chief. The Claimants' submission is that to the extent that any of the matarau chiefs directed persons within their matarau not to attend the beneficiaries meeting of 13 December 2013 they had no authority to do so in Ifira custom in circumstances where the Paramount Chief had convened that meeting. Also, to the extent that 153 persons depose that their matarau chief is Butua Bakokoto of Matarau Blaknawi (Teufi), in his sworn statement (Exhibit C9) Mr. Bakokoto deposes that an Ifiran's primary loyalty is owed to the Paramount Chief. He said he never gave any direction to anyone not to attend the beneficiaries meeting on 13 December 2013 and he attended that meeting. Further, the Claimants rely on Fatani Sope's sworn statement [No. 2] (Exhibit C13) that 261 of the people (from Mele, Pango, Erakor etc.) who have executed a sworn statement claiming to be a beneficiary are not recorded with ITL as beneficiaries at all. Furthermore, 3 of the persons who made those statements have filed statements as to the reasons why they withdrew their earlier statements: Laura Saurei, Bruce Lauru and Feliano Kalsal.
    
58. Also noteworthy is the contradictory evidence given by the Defendants' witness Tapalu Lauru that he did not tell anyone not to attend the meeting at Le Lagon. In any event, having heard the oral evidence of Tapalu Lauru which was subjected to intense cross-examination, I must state that the Court prefers Tapalu Lauru's evidence. Now, this is telling because it means that 173 deponents of the 856 "proforma" sworn statements, such as Lebu Kalterekie, who are from matarau blakmalu (temalu) or who claim to be from that matarau and who included at paragraph 7 of their statements: "My matarau chief told me and the other members of my matarau not to attend" are not to be believed.
    
59. As a matter of evidence the Claimants submit that little weight should be given to a "proforma" sworn statement. The Claimants submit that it was abundantly clear from the cross-examination of 13 of those deponents that (in addition to contradictory evidence) in many cases the evidence was not the independent thinking of the witness which should be one of the central features of a person's examination in chief; (regardless of whether it is given by way of a sworn statement or given orally). I agree.
    

The following statements made in New South Wales Supreme Court judgments demonstrate these points:

1. Palmer J. in Macquarie Developments Pty Ltd and Anor v Forrester and Anor [2005] NSWSC 674 at [90]:
   

"Save in the case of proving formal or non-contentious matters, affidavit evidence of a witness which is in the same words as affidavit evidence of another witness is highly suggestive either of collusion between the witnesses or that the person drafting the affidavit has not used the actual words of one or both of the deponents. Both possibilities seriously prejudice the value of the evidence and Counsel usually attacks the credit of such witnesses, with good reason."

2. Barrett J. in Singh v Singh [2007] NSWSC 1357 at [13]:
   

"A witness's evidence, given on affidavit, must record facts to which the witness directly testifies. The unease that arises when two witnesses adopt exactly the same form of words to describe some past event is palpable enough. The unease becomes intolerable when the witness makes no attempt to give his or her own account and merely adopts another person's account. The intolerable unease finds release in the application of the hearsay rule."

I adopt and apply these statements to this present case.

60. Detailed and comprehensive evidence was led by the Defendants' witnesses, namely Mr. Barak Sope (DW1), Mr. Nato Taiwia (DW2), Mr. Kalpokor Kalsakau (DW3) and Mr. Tapalu Lauru (DW9) to establish Ifira custom and the fact that Mataraus devolve matrilineally whereas the ownership of land in Ifira custom is held on a patrilineal basis. The evidence of each of those witnesses (consistent with the evidence given by the Claimants' witnesses) demonstrates that an Ifira Islander's matarau (that devolves matrilineally) does not determine ownership of land. To the contrary an Ifira Islander's custom ownership of land devolves from one's father's ownership of land; (and in many cases a person's father is a member of a different matarau than his child's matarau).
    
61. Mr. Barak Sope's evidence in chief is contained in his sworn statements admitted in evidence as Exhibit D2 and Exhibit D3. Mr. Sope was cross-examined and the salient matters arising from his cross-examination are:
    
    1. he is matarau blakwita and his father blakwita (tefeke);
       
    2. his father was a member of matarau blakmalu (temalu);
       
    100. the Sope family owns a number of custom lands both on Ifira and outside of Ifira;
         
    4. some of the members of family Sope that own those custom lands are members of different mataraus;
       
    5. the custom ownership of land is not determined by, it doesn't turn on which matarau you belong to;
       
    6. none of the signatories to the declaration (Annexure C to the sworn statement of Kalpokor Kalsakau filed on 13 May 2015, D8) were matarau leaders at the time that they signed that declaration;
       
    7. there were no matarau leaders who were members of Paramount Chief Graham Kalsakau II's Council;
       
    8. none of the matarau leaders were appointed to the Paramount Chief's Council prior to 1991;
       
    9. the power of appointment of a matarau leader rests with the respective mataraus. Matarau leaders are not appointed by the Paramount Chief;
       
    10. Ifira islanders primary duty is to the Paramount Chief;
        
    11. Ifira islanders secondary loyalty is with his/her matarau chief;
        
    50. the Paramount Chief does not ordain matarau chiefs. The laying of hands by the Paramount Chief signifies an ordination;
        
    13. paragraph 7 of exhibit D2 is hearsay because Mr Sope was not present at the meeting at the Paramount Chief's farea on 5 March 2014;
        
    14. he was present for approximately 10 times when persons who made these statements that appear in the Defendants' books numbered 1, 2 and 3 made those statements (300 persons in total). He stated that he was there when those persons were signing;
        
    15. 2 or 3 other people completed handwriting on behalf of a number of beneficiaries within the Defendants' books of statements, that is, Leitongwia Sope, Brown Korikalo and Mildred Sope (Mr Sope's wife);
        
    16. he said that he explained to people in the village words to the effect of what is contained in paragraph 5(iv) of D2 that is: "It was made clear to the people who came that the statements would be used for the purpose of assisting the matarau leaders against the Chief of Ifira";
        
    17. that every meeting I attended people asked me to explain:
        
    18. the panel in the front explained everything in the person's statement;
        
    19. he denies the contents of Bruce Lauru's evidence in chief and his sworn statement (exhibit C11) that Mr Lauru went to Mr Sope's house and told him not to go to the meeting at Le Lagon on 13 December 2013;
        
    20. he does not have a list of the names of beneficiaries and he relies on the ITL Office to maintain the list of beneficiaries;
        
    21. he does not have any documentary evidence to challenge what is stated at paragraph 4 of Fatani Sope's sworn statement no.2 (C13) that a significant number of persons who have provided statements in the 9 volumes were not and are not beneficiaries for the purpose of the Ifira Trust dated 26 June 1978;
        
    5. he knew that Kirikiri Bakokoto had gone to see the Paramount Chief to apologize to him [this is consistent with the Paramount Chief's evidence];
    23. he has continued to receive his pension and Christmas vouchers from ITL uninterrupted since the court proceedings commenced in 2010;
        
    10. as at 13 December 2013 he still owed Le Lagon VT2.4 million for the reception of his sons' wedding held at Le Lagon Conference Centre in September 2012;
        
    25. he had written to Le Lagon on 20 November 2012 and promised to repay that sum by way of 3 instalments with the last instalment to be paid on 31 December 2013;
        
    26. however, he said that he was not embarrassed or comfortable about going to a meeting or attending Le Lagon in December 2013 whilst he still owed it VT2.4 million at that time;
        
    27. if the Court holds that the meeting of 13 December 2013 was valid then he will agree to transfer his share to Ephraim Kalsakau, as per the resolution passed at that meeting without any conditions.
        
62. In respect of Mr. Kalpokor Kalsakau, the salient matters arising from his cross-examination are as follows:
    
    1. he is matarau Temalu. His father was matarau blakwita/tefeke;
       
    2. he has inherited parts of land as divided by his family;
       
    100. his father owned those lands through his grandfather who was blakmalu clan;
         
    4. the matarau system which applies on Ifira devolves matrilineally;
       
    5. warakali was introduced because of the surnames of the English language and it is linked to bloodlines;
       
    6. he knows that the Chief has a Council and he knows that there was a chief's council during Chief Graham Kalsakau's time;
       
    7. matarau leaders are appointed by members of their respective mataraus;
       
    8. from time to time the mataraus can meet and vote to replace their matarau leader;
       
    9. he doesn't have a copy of the current list of the beneficiaries of the Ifira Trust;
       
    10. Ifira Trustees Limited should maintain a list of the beneficiaries;
        
    11. he agrees with the contents of the Minutes of the Beneficiaries Meeting of 4 December 1999 (exhibit C21) where there was a resolution passed unanimously by the beneficiaries present at that meeting to change the Articles of Association of ITL from matarau to warakali;
        
    50. that part of paragraph 7 of exhibit D8 where he states that "both Barak and Chief Mantoi agreeing" is hearsay in relation to the reference to the Paramount Chief because Kalpokor Kalsakau has no direct knowledge whether the Paramount Chief agreed with Geoffrey Gee's opinion (Annexure "B" to D8) of 23 September 2010;
        
    13. between 1999 and 2010 he wasn't involved with ITL firstly due to his wife's death in 2001 and then as a result of his major brain hemorrhage in 2004 that took another 6 years for him to recover;
        
    14. he and Mr. Barak Sope did not wish to implement the change to the Articles from matarau to warakali in 2010 "because the mood on Ifira as we saw at 2010 changed and there were a lot of discontent on Ifira."
        
    15. he said he was astonished but he knew that as one of the 2 nominee shareholders of ITL (together with Mr. Barak Sope) and together with the Paramount Chief that they were the only shareholders who could resolve to amend the Articles of Association of ITL and he knew that they had never resolved to do so;
        
    16. a Paramount Chief becomes the Paramount Chief because he is the eldest male lineal descendant of the previous chief of Ifira;
    17. three quarters of warakali Kalsakau approved of Mantoi becoming the next Paramount Chief; After that the Ifira community met and voted in favour of Mantoi becoming the next Paramount Chief instead of George Kalsakau (Kalpokor's uncle); Then Mantoi was ordained as a Paramount Chief by a number of other Paramount Chiefs at ordination ceremony in or about 1991;
        
    18. he arranged that ordination ceremony of the current Paramount Chief in 1991 and he was present during that ceremony;
        
    19. after the meeting of family Kalsakau that agreed to appoint Mantoi as the next Paramount Chief there was a meeting of the Ifira community at the Women's Hall;
        
    20. "after the family meeting we had to seek the approvals of the warakalis and the mataraus" [that is, the entire Ifira community]
        
    21. Paunimanu means to reign over, "it could be thousands";
        
    5. the only people that have the power to appoint the matarau leaders are the respective mataraus;
       
    23. the mataraus in a meeting have the right to replace a matarau leader if they choose;
        
    10. the primary loyalty to any person on Ifira is first to his immediate family, to his immediate warakali and then the chief after that. [He takes a different view to Barak Sope's evidence on that point];
        
    25. the primary authority to call the meeting of the beneficiaries rests with the Paramount Chief and his counsellors;
        
    26. the power of a matarau leader extends to dismissing the Paramount Chief;
        
    27. he did not see a notice calling a meeting of matarau blakmalu on 11 January 2014. However, he accepts that the matarau can meet and decide to replace one matarau leader with another if they give the notice accordingly [his evidence also defers from Barak Sope on this point];
        
    28. he was aware of the orders made by Sey J on 19 December 2013 on or about the morning of 19/12/13;
        
    0. he and Barak Sope met on 20 December 2013 in what he describes as an AGM of ITL;
       
    30. his understanding upon reading the Court of Appeal's judgment of 22 November 2013 (including paragraph 5 of it) was that "we were to meet, and Mr. Sope and myself agreed, Mr. Sope would go and visit Chief Mantoi and that the 3 shareholders would need to discuss issues"
        
    31. he agrees there is nothing in the Minutes of Annexure A to D6 to show that the Paramount Chief was invited to that meeting on 20/12/13;
        
    32. he knew that on 20/12/13 that there were not 6 vacancies on the Board of ITL;
        
    33. he said that he received legal advice from Mr. Sugden to write to the VFSC to advise it to change its records in relation to 6 new directors of ITL that he says were elected on 20/12/13;
        
    34. he doesn't have a copy of the roll of persons in attendance at the meeting on 26/12/13 (Annexure "A" to D7);
        
    2. neither the roll of persons who attended the meeting on 26/12/13 nor any photograph of such persons who were in attendance is before the Court;
       
    36. he was present when 10 of the persons who signed (in the 9 books) their statements at the Grand Hotel.
        
    37. he accepts that ITL has settled all of his daughter's, Tania's, tuition fees for her education in the Philippines;
        
    0. if the Court holds that the meeting that was held at the Le Lagon on 13/12/13 was a valid meeting at which those resolutions were passed he will accept it without conditions because "that's my role".
       
63. Indeed, a huge amount of evidence has served no other purpose than to demonstrate the importance of Ifira Custom to the people of Ifira. For instance, at page 11 of the transcript the Paramount Chief was being asked about the naflak or matarau system compared to the warakali system and he stated:
    

(a) "Naflak (matarau) is too open because people from another island, north or south of Vanuatu can be part of the naflak (even though he is out of Ifira – not translated)"

What the Paramount Chief meant by too open is clarified further down page 11 where he is asked.

Counsel: "And you personally believe that's wrong don't you?

Paramount Chief: "Both the naflak and the warakali exist, but the difference between them is that a child from Malekula whose father is from Malekula, and whose mother is from Ifira can become part of the naflak and own things that normally they shouldn't (because they are from another side, another island – not translated), but both warakali and naflak existed long ago, even before the arrival of the Polynesians"

64. As the head of the Council of Ifira Island, the Paramount Chief deposed as follows at paragraph 15 of Exhibit C4C:
    

"The four clans of Ifira are Blaknaniu (Tenui), Blakwita (Tefeke), Blakmalu (Temalu) and Blaknawi (Teufi). In more recent times I have also recognized a smaller clan, Blaknawa (known as Makanu which was formerly part of the Blaknawi clan). The first four clans are also recognized in Article 5 of the Memorandum of Association of ITL."

65. At paragraph 16 of Exhibit C4C the Paramount Chief deposed:
    

"By way of further understanding as to who are beneficiaries for the purpose of the Ifira Trust Deed, I advise that:

1. anyone who is born from a union of a man and a woman who both belong to one of the Ifira clans is always a beneficiary;
   
2. children born of a woman who marries a non-Ifira islander are not beneficiaries;
   

100. However, at the beneficiaries meeting on 13 December 2013 I decided that for Christmas 2013 children born of a woman who had married non-Ifira islanders would receive the same vouchers as beneficiaries; and
     

4. Members of Warakalis (family groups) make up the number of Mataraus (clans) recognized by ITL's Articles. Mataraus are based on matrilineal lineage. The construct of Warakalis is different from Mataraus and is based on paternal lineage and is considered to be more representative.
   

66. Then at paragraph 17 of Exhibit C4C the Paramount Chief deposed:
    

"The ITL office maintains a list of the names of beneficiaries which is updated from time to time. A list of the names of the beneficiaries as at 13 December 2013 was included in rolls that were provided by ITL's office to the Presiding Officer and Clerk No.1, Michael Mangawai, and the Polling Clerks that I appointed and which they used for the purpose of the meeting on 13 December 2013."

67. Suffice it to say that it is unnecessary to delve too deeply into what was a very detailed explanation of Ifira Islander's custom and ownership of land. I shall now proceed to consider the votes taken at the meeting at Le Lagon and the consequences of the motions passed by the beneficiaries.
    
68. The Claimants case is that Exhibit C3 was the list of names supplied by ITL for the construction of the list of names in annexure MM2 to Exhibit C19 used to record which "beneficiaries" attended the meeting, and that a voting Report was prepared to record the Minutes of the Meeting including the votes. The Claimants say there are 1,689 beneficiaries shown on the roll of beneficiaries exhibited to Michael Mangawai's sworn statement (C19) and that out of those 1,689 beneficiaries, the maximum number of votes recorded in respect of any of the motions was in relation to motion 1 in which 731 votes were cast.
    
69. However, the Defendants challenge the list of names on the basis that:-
    

(i) The list of typed names is different from the typed list in exhibit C3 which was tendered by the Claimants on the basis that it was the list used by ITL for identifying beneficiaries on 13/12/2013;

(ii) There are a number of hand written names added to the list of type written names.

70. In the Defendants' Responding Submissions filed on 9 July 2015, Mr. Sugden makes a comparative Analysis of Exhibit C3 and the list in MM2 as shown below.
    

ANALYSIS OF LIST IN C3 AND MM2

Warakali	No of name in C3	No of typed names in MM2	No of Handwritten names in MM2	Total of Names in MM2	No who attended at the Le Lagon
Aiong	34	34	01	35	17
Albert	04	04	0	04	03
Bakokoto	149	149	0	149	51
Chichirua	33	32	01	33	08
Feandre	06	06	0	06	06
Itonga	07	07	0	07	05
Kalfabun	52	52	09	61	32
Kaltaki & Laban	35	35	0	35	22
Kalfau	03	03	0	03	03
Kalorib	38	38	0	38	29
Kalpilelu	15	15	12	27	22
Kalpukai	106	106	02	108	37
Kalsakau	144	144	08	152	59
Kalsal	54	54	01	55	10
Kaltabang	26	24	0	24	18
Katerikia	57	57	04	61	38
Kaltoua	19	19	0	19	11
Kalworai	28	28	0	28	19
Kalonikara	57	57	02	59	26
Kiri	27	27	01	28	22
Korikalo	58	59	02	61	16
Lauru	56	56	0	56	29
Mangawai	66	66	04	70	45
Matas	21	21	01	22	14
Mototourua	72	71	0	71	28
Napakaurana	33	33	0	33	13
Sablan	74	74	02	76	26
Saurei	52	52	0	52	21
Sope	67	67	0	67	19
Taiwia	87	85	0	85	20
Meneai	22	22	0	22	05
Waiwai	12	12	0	12	0
Toro	10	10	0	10	01
Cokataki & Quensell & Ors	0	14	0	14	0
Soalo	0	18	01	19	06
Kalpuaso	09	23	31	54	43
Kanegai	0	33	0	33	04
TOTAL	1533	1607	82	1689	728

The Defendants submit in their note that:

(i) There are 6 names in C3 that are not in MM2's typed names

(ii) There are 80 typed names in MM2 that are not in C3

(iii) There are 82 handwritten names in MM2 that are not in C3

71. Mr. Sugden submits that the huge disparity between C3 and MM2 which was supposed to have been used to construct MM2 but has 80 extra typed names and 83 extra handwritten names, and also between both these lists and the record in the Voting Report, demonstrates that the management of ITL seems to make its own list up upon the discretion of whoever happens to be dealing with the list at the time.
    

72. For their part, the Claimants submit that the evidence of the outcome of the voting is contained in the "Beneficiaries Voting Report", pages 50-62 of TMK1 (prepared by Michael Mangawai, at paragraph 6 of Mr. Mangawai's sworn statement filed on 20 April 2015) and admitted in evidence as Exhibit 19. Resolutions were passed by the beneficiaries in accordance with the 6 motions referred to in the Paramount Chief's notice dated 9 December 2013 (pp21-24 of TMK1) as follows:

1. Motion 1 (as per paragraph 55 of the C.A.'s judgment) was passed with 731 votes cast (686 votes for, 36 votes against and 9 invalid votes);
   
2. Motion 2 (as per paragraph 55 of the C.A.'s judgment) was passed with 662 votes cast (661 votes for, 1 abstention);
   

100. Motion 3 (as per paragraph 53 of the C.A.'s judgment) was passed with 643 votes cast (640 votes for, 3 abstentions);
     

4. Motion 4 (as per paragraph 53 of the C..A.'s judgment) was passed with 721 votes cast (713 votes for, 8 votes against);
   
5. Motion 5 (as per paragraph 56 of the C.A.'s judgment) was passed with 634 votes cast (634 votes for); and
   
6. Motion 6 (as per paragraph 56 of the C.A.'s judgment) was passed with 612 votes cast (610 votes for, 2 abstentions).
   

73. The Defendants contend that the Claimants' evidence establishes that more probably than not, the Second Claimants: "Obtained votes in their favour as to the disposition of the shares from less than half of the number of people who, if their list of names was correct, were the owners of the shares." I must say I find this contention untenable and I reject it in its entirety.

74. In the same vein, I also reject the Defendants' contention that the Claimants' evidence establishes that more probably than not, the Second Claimants: "Obtained unanimous or almost unanimous votes from people who shared their personal interest in the votes or who have been coerced by the Second Defendants." This submission is baseless and without merit.

75. Rather, I accept the Claimants' submission that it was a matter for those beneficiaries who chose to attend the beneficiaries meeting on 13 December 2013 as to how they voted. Indeed, motion no.1 was conducted by way of secret ballot and resulted in 686 affirmative votes, 36 votes against and 9 invalid votes, being a total of 731 votes cast. If the Claimants in Civil Case No. 291 of 2013 (and probably Mr. Barak Sope) had not, wrongly, advised those members of their respective mataraus not to attend, then in all likelihood there would have been more votes against the various motions that were proposed at that meeting.
    
76. I reject the contention of the Defendants that the Claimants' evidence establishes that more probably than not, the Second Claimants: "Framed the issues to be voted on in a way that suited their interests." In my view, this submission is misconceived and without substance. The clear evidence before this Court is that the framing of the issues in the Paramount Chief's notice (at pages 19-24 of Exhibit C4(A) was:
    
    1. in accordance with the issues as referred to in paragraphs 53-56 of the Court of Appeal's judgment dated 22 November 2013; and
       
    2. the subject of correspondence prior to the meeting on 13 December 2013 in which the Defendants' counsel advised that he had taken instructions and [the Defendants] "have no objections to the Notice that you have proposed (page 17 of TMK1 to C4A).
       
77. Besides, the Paramount Chief's sworn statement [No.2] filed on 22 May 2014 and admitted in evidence as Exhibit C4(b) clearly relates to the Notice which he had issued. He deposed as follows:
    

"10. At paragraph 10 of my first statement I referred to the copy of my Notice of General Meeting of Beneficiaries dated 9 December 2013 (in English and also Bislama) for the convening of the meeting on 13 December 2013 (the Notice) which was widely circulated and also published in the Daily post newspaper on 11 December 2013. At page 30 of TMK2 is a true copy of the Notice as published in the Daily Post newspaper on 11 December 2013.

11. The Notice was also affixed at the following places: Ifira Point (Losa Kaltabang's home); Wotumalo Nabil's home; Plawa; Andrew Chichirua's hom; Farea Malarua; Narsog Tarasongson; Tamaunu Football Field; Watapa. It was also broadcast on the radio on or about 11 December 2013. In addition, the current directors of ITL informed numerous Beneficiaries verbally.

12. At page 31 of TMK2 is a true copy of the letter from Vanuatu Broadcasting & Television corporation dated 21 May 2014 confirming the radio broadcasts regarding the Notice on 10, 11 and 12 December 2013.

13. The publication and distribution of the Notice for the convening of the meeting on 13 December 2013 as referred to in my previous paragraphs was consistent with the practice of the Ifira community that have evolved over time. For example, a similar practice occurred for the publication and distribution of notices for the convening of the Beneficiaries meeting on 3 December 1999 (which was held on 4 December 1999) and the meetings of 6 November 2010, 20 November 2010 and 19 February 2011."

Findings

78. Having had the opportunity of seeing and hearing all the witnesses, as well as observing their demeanor during the trial, I find on the balance of probabilities that:
    
    • The appointment of the current Paramount Chief was due to him being the first born lineal heir of the previous Paramount Chief, then approval by a meeting of warakali Kalsakau, then approval by a meeting of the Ifira Community [not an appointment by the matarau leaders] and his ordination in custom by a number of Paramount Chiefs of Efate.
      
    • The undisputed evidence is that the Paramount Chief is the head of the Council of Ifira Island and previously the head of the Council was his father, Paramount Chief Graham Kalsakau II. Accordingly, the Paramount Chief has the absolute authority in custom to decide where a meeting of the beneficiaries of the Ifira Trust is held.
      
    • The matarau leaders were not members of the Council of Ifira Island (or Chief's Council) during Chief Graham Kalsakau II's time (from when the Ifira Trust and ITL were established in 1978); they were only appointed to be members of the Chief's Council since the ordination of the current Paramount Chief in 1991.
      
    • The matarau leaders are appointed by their respective mataraus and can be terminated by their respective mataraus, including during their lifetime.
      
    • The following evidence by the Paramount Chief was unchallenged during cross-examination:
      
      1. all beneficiaries cannot fit inside the farea;
      2. transport was arranged to pick up beneficiaries from various locations;
      100. Saturday 14 December 2013 was a cruise ship day during which a large proportion of the women of Ifira are vendors at the Ifira Wharf;
           
    • The Paramount Chief followed the "road map" and convened a meeting of the beneficiaries of the Ifira Trust in accordance with the practice of the Ifira Community at Warwick Le Lagon Resort & Spa Conference Centre (Le Lagon) on Friday 13 December 2013.
      
    • Given that the Paramount Chief's evidence is that there are no facilities on Ifira Island to ensure that all beneficiaries could (if they decided to attend) be accommodated, for the orderly conduct of the meeting including the proper recording of the voting process, I accept the Claimants' submission that it was entirely reasonable and sensible that the meeting was convened at an appropriate venue such as Le Lagon.
      
    • The meeting could and should be considered to have been held "in the normal way for such meetings."
      
    • The Defendants were not justified in not accepting the results of that meeting as an expression of the will of the owners of the shares?
      
    • The resolutions passed at the Beneficiaries meeting on 13 December 2013 are valid.
      
    • The Defendants' purported AGM on 20 December 2013 was not duly convened for the following reasons:
      

First, no notice of it was given to the Paramount Chief in his capacity as the successor of his late father and the fact that the vote attached to his late father's one ordinary share in ITL had (since his father's death) been exercised (as intended) by the Paramount Chief (see findings at paragraph 5 of the C.A.'s judgment of 22 November 2013);

Second, special notice in respect of the proposed removal of a director of ITL was not given in advance of the purported AGM contrary to the requirements of Article 94 of ITL's Articles of Association and s. 196 (2) of the Companies Act; and

Third, no notice of the intended removal of the directors was given to ITL [and in order that notice could be given to the existing directors] as required by s. 196 of the Companies Act.

In addition, the purported appointment by the Defendants of 6 new directors was in contempt of this Court's Orders of 19 December 2013.

Conclusion

79. Having regard to these present proceedings and the conduct of the parties and all the circumstances of the cases, the inevitable conclusion is that the Beneficiaries meeting that the Paramount Chief convened on 13 December 2013 at Warwick Le Lagon Resort & Spa was convened in accordance with the usual practice of the Ifira community as the Court of Appeal had directed in its judgment dated 22 November 2013 in Civil Appeal Case No.35 of 2013 (paragraph 80).
    
80. In the final analysis, I enter judgment for the Claimants in Civil Case No. 295 of 2013 and grant them the relief sought at paragraphs 2, 3, 4 and 6 of the Supreme Court Claim filed on 16 January 2014.
    
81. The Claimants' claim in Civil Case No. 291 of 2013 is hereby dismissed with costs to be taxed if not agreed.
    

I thank counsel for their brilliant and very detailed submissions and transcripts which I have found very useful in considering this judgment.

DATED at Port Vila, this 25th day of September, 2015.

BY THE COURT

M.M.SEY
Judge