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Island Courts of Vanuatu |
REPUBLIC OF VANUATU
EFATE ISLAND COURT
(LAND DISPUTE)
Land Case 06 of 2003 and 16 of 2003
SARANABUMBWE – MATAMANARO/NAGIRE LANDS
BETWEEN:
1. RUSSEN SETH GARAE
2. SETH GARAE
2. RICHMAN GARAE
3. JIMMY GARAE
4. ELKENA GARAE
Original claimant
Represented by: RUSSEN SETH GARAE
AND:
1. AZARAE GARAE
2. WILLIE GARAE
3. MAXWELL THOMAS
4. EZRA MALA
Counter claimant 1
Represented by: MAXWELL THOMAS
AND:
1. REUBEN
2. LOWET
3. MANASA ARU
4. SAKIAS
5. MORRIS
6. NELSON MERA
7. ARNOLD NALIU
8. OBED ARU
9. RICHMAN BANGA
10. NEMWEL
11. STEPHEN SOLOMON
Counterclaimant 2
Represented by: SHEDDRACK
AND:
1. MATHEW VUILA
2. PETRO
3. MICKAEL TAVOASESE
4. BERNARD VISI
5. SOPHIE TARI
Counterclaimant 3
Represented by Mr. VIRETIRO REMY
AND:
REUBEN GARAE
Counterclaimant 4
AND:
NAWEL KALO BANI
Counterclaimant 5
Represented by Mr. NELSON MERA
AND:
TOAVOTU TRIBE
Counterclaimant 6
Represented by MR. SAMUEL BANI
Coram: Senior Magistrate Rita Bill NAVITI
Island Court Justices: * Justice Willie Garae; chief TAKEMANEL of
Longana East Ambae;
Justice Joseph Garae; Chief NAMELE of Longana, East Ambae;
Justice Timothy Taitan; Chief GIROKI of West Ambae.
JUDGEMENT
PRELIMINARY ISSUES:
On 20 October 2010, after hearing all the parties, the court ordered that the two cases (SARANAVIBUE & MATAIMANARO) be consolidated.
On 23 May 2011 during the trial and at the closing remarks of Mr. Viretero, spokesperson for Pierre Tariliu's case, this court noted that Mr. late Pierre Tariliu has paid fees of:
- 30 000 vatu on 22 October 1998 for Mataimanaro and
- Another 30 000 vatu on 30 October in the same year, for the Catholic Mission of Nangire.
This is one of the cases where the clerk has not properly filed the documents nor has he read and prepared the file for the trial. Mr. Viretiro told us that, in around 1998 he wanted to register and pay the fee for the Catholic Mission of Nangire, but the clerk (Late Glenda Gamma) advices him to pay two fees: one for the dispute registered by Jimmy Garae over Mataimanaro and another for the Catholic Mission. That was what he did. He paid the first 30 000 vatu on 22 October 1998 and the other 30 000 vatu on 30 October 1998.
The administration has not made clear in the publicized message that Catholic Mission was also disputed. However Catholic Mission as referred to is part and parcel of the same land "Mataimanaro". The same has been subject to various custom meetings.
There was no specific file opened for the dispute over Catholic Mission. We suppose this is so because the Catholic Mission is situated on Nangire. Nangire is no other than Mataimanaro.
We are minded of the failure to sent out public notices but, we consider that enough evidences have been adduced to enable this court to declare the custom ownership of the whole boundaries inclusive of Nangire Catholic Mission. The parties are the same families and witnesses that succeeded themselves in the witness box came from the whole of the 3 lands (SARANAVIBUE and MATAIMANARO/NANGIRE).
In general knowledge, the heavily disputed part of SARANAVIBUE is part of MATAIMANARO; MATAIMANARO is no other then NANGIRE.
This court is satisfied that determining the custom ownership of these lands will not prejudice the rights of anyone in the community since any potential claimants would have been given the chance to be heard on any issue in the 3 so called plots of land which in our view form part of one only big parcel of land; and was customarily managed and controlled by ancestors of the parties before this court.
Viretiro has many times questions the parties to suggest that there are not other parties disputing Catholic Church; and all have referred to other decisions of chiefs and have expressed their satisfaction and compliance to the chiefs' decisions over Catholic Mission of Nangire. That includes Mr. Alphonse Amwerah who was a party to later mentioned chief's meeting. He does not intend to claim.
Therefore this court in determining custom ownership of the land in this matter will include Nangire Mission Catholic.
FURTHERMORE JEAN CLAUDE TURE witness and claimant to counter claimant 1 has also raised his complain as to the registration of this case. He claims that he should be registered as the Original claimant. He further questions the administration of the Judiciary. After perusing the file we found out that the first land claim was over MERINOWOWO LAND but there is no date of filing. No receipt has been delivered until today. We do not have enough information to sustain this claimant's complain.
INTRODUCTION:
This is a dispute over customary ownership of land known as SARANAVIBUE/MATAIMANARO, situation at North West Ambae commonly know as WALORIKI and NANGIRE.
The boundaries starts at SILOTI CREEK and run to MATAIMANARO, to RED STONE- NANGIRE CATHOLIC MISSION LAND: TITLE 609 and 605.
Editor's Note: Refer to PDF for diagram
COMPOSITION THE COURT
There were no objection for the following Justices to deal with this matter:
- Justice Willie Garae; chief TAKEMANEL of Longana East Ambae;
- Justice Joseph Garae; Chief NAMELE of Longana, East Ambae;
- Justice Timothy Taitan; Chief GIROKI of West Ambae.
PROCEDURES:
The court explains the procedure for the trial. There is going to be":
- Examination in Chief,
- Cross examination and
- Re-examination.
LAWS:
1980, CONSTITUTION OF THE REPUBLIC OF VANUATU
Article 73. All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants.
Article 74. The rules of custom shall form the basis of ownership and use of land in the Republic of Vanuatu.
Article 75. Only indigenous citizens of the Republic of Vanuatu who have acquired their land in accordance with a recognized system of land tenure shall have perpetual ownership of their land.
Island Court Act Cap 167
Island Court civil procedure Rules
Section 8 of the Island Court Act empowers the island to apply customary law of the area in dispute when determining customary ownership. However the decision must not stand against the spirit of justice, reality and good order.
Custom practices of Ambae-particularly North-West Ambae.
In Custom of North Ambae, the right of ownership over land follows two principle rules TAGARO and MERABUTO; then inheritance passes through Patrilineal system within the land itself with some exceptions:
CUSTOMARY LAND TENURE:
a) HUNGWE VENUE: means the land owner and his knowledgeable in the boundaries of his land and that of his neighbor. He is a chief who governs and protects people under his domain.
b) HUNGAI BOE: (custom chief of Pig) – means a governor or Prime Minister. He is a wealthy person trading with pig tusks. He would normally hear dispute and resolve conflicts,
c) SOROMALANGA: means a defender. Like a solder or an investigator. He has special training in custom security.
d) BURISINOMBU: means the population placed under the control of "HUNGWE VENUE".
STANDARD OF PROVE:
Standard of prove is on Probability.
It is the duty of this court to show that it abides to the constitution of the Republic of Vanuatu, 1980. It must apply custom laws as the basis of its decision. However its decision must no be inconsistent with article 73 and 74 of the same Constitution.
DECISION
After reading all the evidence given on oath and after considering all the information supplied in this matter during our visit to the Land we have decided as follows:
ORIGINAL CLAIMANT: SETH GARAE:
SARANAVBUE
Seth Garae and his descendants claim Saranavibue under LOCO:
The customary rights over the lands of Tagaro must remain with the Patrilineal last surviving bloodline.
ORIGINAL CLAIMANT is declared HUNGWE VENUE OF SARAVINABUE LAND.
MATAIMANARO:
They also claim Mataimanaro under VIRELOKAMBANI
We heard the evidences and found that one Robert Visi and one Dickson are the direct descendants of Virelokambani. We were told that
Robert Visi married a woman from Pentecost Island and migrated there and that Dickson was child of adultery. These 2 situations are
irrelevant to the claim of customary ownership of land. Even though they did not claim, their birthright is at Mataimanaro. They
are represented by Elkena, who we heard was adopted into Virelokambani's family. Elkena took care of Robert Aruliliu, took him to
the hospital and has attended to his bedside until he died and he laid him to rest (buried) him.
Seth Garae's claim over Mataimanaro fails.
Robert Aruliliu's land should go to his three sons: ROBERT VISI, DICKSON and ELKENA equally. They are placed under HUNGWE VENUE of MATAIMANARO/NANGIRE.
AZARAE GARAE
SARANAVIBUE:
Azarae Garae claims SARANAVIBUE on the ground that he is descendant of LACO. He alleged that he and his family are descendants of LACO, LUMU, BAIGARAKWA and MANGA.
The Land Saranavibue was and is under Tagaro tribe. LOCO, LACO, and LUMU are part of that tribe. During the court visit to the land, Mr. Maxwell Thomas and Mr. Jean Claude Ture represented the second claimant and walked with the court. We noticed that the Azarae family and Seth Garae have very close family ties through the marriage the son of LOCO and VELE with the daughter of LACO. Azarae's spokesperson showed 2 graves to us.
The 2 grave are situation about 100 meters from LOCO's nasara or custom meeting place and the grave. The two mentioned graves were surrounded by Nagaria trees or plants. We were told that the "nagaria" were used to cook and to wear to cover ones genital parts. There was also 1 namele tree within the vicinity of the 2 graves. There were no Vule Tavidiri (New moon), specially made stone for chiefs' graves.
We found that what they show us was the main area for people to live or rest when they come to visit the chief. It is separated from the chief's custom house.
During that visit the two representative of counterclaimant one admitted there was a person called VELE in the area in the past. Only Seth Garae was talking about VELE in the court. Now we heard he was buried close to chief LACO. Jennery Garae, the son of Azarae Garae confirms that VELE was so old that he could not hold back his urine. He would clean the area and would urinate everywhere he would have gone. He claim that VELE would prepare for SUE (son of LACO) to perform custom ceremony.
That confirms the history given by Seth Garae that Loco had a brother called Vele. And Sue the son of Laco was young when he performed his custom ceremony within chief LOCO's nasara.
We heard that Merabue means "bamboo man". That is why this station is called Navibue which means origin of bamboo. But yet counterclaimant one cannot show us the site of that bamboo.
Whereas while Seth Garae was showing us the bamboo, the couple Maxwell and Ture were searching very hard for it. They then return few minutes later to tell us that they could not find the bamboo. Nevertheless we saw the "angry" bamboo about 6 very big and old namele trees surrounding the custom village.
We were not convinced that the 2 graves belong to a higher chief than that of Seth Garae.
Furthermore LUMU's grave is further down the scale of the descending graves. It is in fact situated between Baituru and Atebalango; in the Saranavibue land at the place called Sarawalovatu within a coconut plantation. There were no mention of BAIGARAGWA and MANGA's grave.
However Azarae's claim over Saranavibue succeeds because the last surviving bloodline of LACO was Lucy. In custom land passes through male lineage; in this case Family Seth Garae as the Keeper of Tagaro lands must allocate 1/3 of the land SARANAVIBUE to LUCY's descendants.
AZARAE's claim over long Saranavibue under Baigaragwa fails, since Seth GARAE is HUNGWE VENUE. Seth GARAE will allocate 1/3 of the land to AZARAE GARAE as descendants of LUCY.
Claim under MANGA fails, because we heard evidence that Manga is not native of this area.
MATAIMANARO:
AZARAE GARAE claims MATAIMANARO under VIRELILIU, VERETAMARINO, TARITAVUE, MANGA and ARUHEVE OR VIRELALAU
He claims that VIRELILIU is the father of GWERACOCONA, TETECORO and GWALA. We have difficulty locating their land because they do not know of VIRELILIU's ancestors or VIRELILIU's origin. It is said that JOSIAS TANGWA wedded LUCY and fathered Azarae and his other brothers and sisters. They all claim today under Josias Tangwaga and Leli
We do not have enough evidence to declare Vireliliu and Leili's rights.
However we have strong evidence to convince us that Josias Tangwa is the owner of AHIWUWU. JOSIAS TANGWA must consult the declared
custom owner of NANGIRE for his right over a land within MATAIMANARO.
Claim under Manga fails.
REUBEN GARAE:
SARANAVIBUE
Reuben Garae claims some plots of land within Saranavibue Land. We note that he has formed an association with 11other claimants and lodged this claim to protect their interests over the land SARANAVIBUE from the constant dispute over the lands by both main claimant SETH GARAE and AZARAE GARAE's. The dispute affected their rights of occupation and interest over the properties. For that reason they filed a statement of claim without specific evidence, history and boundaries.
RUBEN GARAE's claim to declare him as custom owner of SARANAVIBUE fails. But we declare that he has some interest over Saranavibue. The declared custom owners must not cause any damage to his properties or evict him and his relative from the land they have developed. They must negotiate new arrangement. Or settle any compensation for the development before evicting them.
MATAIMANARO
Reuben Garae also claims some plot of land within Mataimanaro under FRANK JOSEPH, HENDRY TOA and AISON PHATU.
He did not plead their rights; instead he kept talking about VEVITAVOLA.
We found that chief TOKOI repatriated Vevitavola to her biological father's land. The chief has done that by accompanying her with a pig to put "Tamat". So her rights where cut off from time she was taken back and the land remained with Chief TOKOI.
His claim to be declared custom owner of Mataimanaro under VEVITAVOLA fails.
NEMWEL KALOBANI
SARANAVIBUE:
Nemwel Kalobani claims some plots of land within Saranavibue Land. We note that he has formed an association with 11other claimants and lodged this claim to protect their interests over the land SARANAVIBUE from the constant dispute over the lands by both main claimant SETH GARAE and AZARAE GARAE's. The dispute affected their rights of occupation and interest over the properties. For that reason they filed a statement of claim without specific evidence, history and boundaries.
His application to be declared custom owner of SARANAVIBUE fails. Nevertheless he possesses some interests over the land Saranavibue. So the declared custom owner must not damage this claimant's properties or evict them from the land that they have developed. New arrangement must be negotiated so that they may continue using the land or compensation be paid to them before eviction.
MATAIMANARO:
Nemwel Kalobani also claims some plots of land within Mataimanaro under EMO, his mother.
Court finds that BAITURU wedded MARTHA KOKON who bore him 4 children, NEALA, QUERO, QUEROVUI and EMO.
NEALA fathered ROBERT ARULIU. Nemwel Kalobani claims Emo's right because ROBERT ARULILIU was childless.
Court has already dealt with ROBERT ARULILIU's rights and placed them to the three sons of Robert Aruliliu for whom ELKENA SETH acted for .
Application to declare Nemwel Kalobani as custom owner of Mataimanaro under Emo fails.
FAMILIES:
SARANAVIBUE:
These 8 parties claim their interest over Saranavibue. Again like the former 2 previous counterclaimant, we note that he has formed an association with 11other claimants and lodged this claim to protect their interests over the land SARANAVIBUE from the constant dispute over the lands by both main claimant SETH GARAE and AZARAE GARAE's. The dispute affected their rights of occupation and interest over the properties. For that reason they filed a statement of claim without specific evidence, history and boundaries.
Their application to declare each of them custom owner of SARANAVIBUE fails. Court finds that each and every one of them possesses some interests over Saranavibue. Therefore the declared custom owners must not damage their properties or evict them from the land they have respectively developed . New arrangement must be negotiated so that they may continue occupying the land that they have developed or compensation must be paid to them before they are evicted.
FAMILY TOAVUTU TRIBE
MATAIMANARO
Family TOAVUTU claims a part of MATAIMANARO under TOAVUTU TRIBE, particularly MAVUTU.
This TRIBE has lose contact over this land for a long period of time; when the only daughter of TOAVUTU VIRELALAU by the name KWEVIREHAKEKI left to Noumea; there, she married to a West Ambae man and lived there for a while. They then settled at West Ambae on their return to New Hebrides.
The claimant produces documentary evidence showing that the one VIRELALAU mentioned in his history existed in this area around 1886 and was custom owner of three plot of land which he sold to foreigners. Furthermore there were evidences showing that recently one Chanel bought a piece of land within the same area from David who is one of the sons of KWEVIREHAKEKI.
Again there was great confusion over a grave which was marked Virelalau for there were two graves with same label. But the court finds that the one close to Namaro creek was the right Virelalau mentioned by this claimant.
Family Azare GARAE claims under the same VIRELALAU. But they were unable to trace their history and family tree correctly back to him so to convince the court of their relationship; whereas TOAVUTU produces limited, but very convincing evidence; presenting three generations before VIRELALAU and five generations after VIRELALAU down to current claimant.
Although VIRELALAU sold 3 plots of the disputed lands to foreigners, we were not sure of the custom boundaries.
NEW CHIEF TOKOI must accommodate TOAVUTU TRIBE who should be under the new chief's care and protection.
They must negotiate their right over one of the three following plots of land:
- LOLOPIE;
- BOUGUELILITOU or
- MATAIMANARO and transfer it to them.
To avoid confusion only one plot of land should be transferred not all three of them
1. MATHEW VUILA
2. PETRO
3. MICKAEL TAVOASESE
4. BERNARD VISI
5. SOPHIE TARI
Family MATHEW VUILA, PETRO, MICKAEL TAVOASESE, BERNARD VISI and SOPHIE TARI claim MATAIMANARO and NANGIRE CATHOLIC MISSION under ARUHOMU. They alleged to be the direct descendants of ARUHOMU.
There was not much real challenge over the history adduced by Mr. Viretiro. So the same was not discrete. There were evidences to show that these counterclaimants' ancestors sold land between 1886 and 1905.
We found that this party was of different tribe under different custom structure leaded by a separate chief from Saranavibue. That chief was based in the area of Catholic Church and Mission. The last known chief for this area was TOKOI who was the brother of VIRETIRO.
VIRETIRO is great grand son of ARUHOMU and direct descendant of Aruheve, Rugwe, Tahe, Wasangavulu and Yokim Molimwae who have been recorded as selling lands between 1886-1905. This confirms their existence and accentuates the fact that they were in control over the land in Nangire. The behavior of ARUHEVE who had his brothers aligned behind him to sign the deed of sale in around 1900s clearly demonstration his leadership as a chief.
There were evidences showing that TOKOI was a big chief who knew how to resolve village's affairs.He is capable of making "TAMAT" (peace) as well as causing "DEATH", when he killed others through magic.
We declare that ARUHOMU is custom owner of the area of Nangire which runs from MATAIMANARO creek to RED STONE few meters from the Catholic Church. TOKOI was the most recent chief of that area.
HOWEVER the following claims must be attended to by chief TOKOI:
Family TOKOI as custom owner of NANGIRE/Mataimanaro and Catholic Mission must gather for the above three families who are entitled to remain on the land.
For clarity the new chief Tokoi must negotiate new arrangement with the three above family and allocate to them lands within MATAIMANARO up to DANUME MALAGELO.
DECLARATIONS AND ORDERS
19. TOAVOTU TRIBE is BURISINOMBU of MATAIMANARO. NEW CHIEF TOKOI must accommodate TOAVUTU TRIBE who should be under his care and protection.
20. The declared boundaries below:
Any person has the right to lodge an appeal against this judgment within 30 days from the date of the written Judgment (23 June 2011)
Hearing at Walombue village, North Ambae, from Tuesday 18 May to Friday 27 May 2011.
Written Judgment delivered on 22 June 2011.
Editors Note: Refer to PDF to view Diagram
MATAIMANARO/NANGIRE (chief Tokoi)
Senior Magistrate Rita Bill NAVITI
Justices Willie Garae
Chief TAKEMANEL of Longana East Ambae;
Justice Joseph Garae
Chief NAMELE of Longana, East Ambae;
Justice Timothy Taitan
Chief GIROKI of West Ambae.
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