THE MALASA Customary land has been handed to chief Henry Manlaewia and his clan after the court of appeal ruling yesterday.
The decision is likely to end a longlasting battle between Chief Henry Manlaewia, Chief Manavilalu, Chief Lakeleowia, Chief Smieon Peter Maripopongi, Chief Maripongi and family Tanmiala.
Justice Daniel Fatiaki, Assessor 1 Chief Kas Kolou and Assessor 2 Chief Arvy Kalwatman handed down the judgement yesterday failing a declaration in favour of Chief Maripongi family and Family Tanmiala in 1990 as the land owners.
They said that it is important to note that some land cases before the courts reveal that customary land is attached to a chiefly title, and the holder of the chiefly title has power under custom to determine what is done with the land attached to his title.
They said that Land Court may appreciate that the power is a very different thing from beneficial ownership.
The land courts may appreciate in relevant cases that a chief holding land under his unlimited customary administrative powers, may hold the land in the capacity as trustees of his people but not for his personal benefit.
They said that the chief may have rights of control rather than ownership rights.
They said that bishlama version of the word ‘insaet’ and ‘stap inside’ are not references to the ownership, rather, they are a description of physical location and proximity.
The court said that it has a meaning of encircling or surrounding or having some common borders but the enclosed land is a recongnised land ‘baontri’.
They said that this made it abundantly clear that ‘Malasa’ like ‘Suasu’ is a separate and distinct land ‘baontri’ from ‘Tanmiala’ land boundary and whatsmore for a long time it has been under the control of Chief Manlaewia.
They said that that of greater significance in the present case is the evidence of Chief Raymond Marango who testified on behalf of the original claimant (Family Malu) and whom the Efate Island Court (EIC) accepted as a witness of truth.
In his evidence reproduced in the decision, the witness after confirming that he had walked the Malasa land boundary on three separate ceremonial occasions involving relatives of all the claimants (Manlaewia).
The court said that this evidence appears to have been either overlooked or ignored by the EIC in its findings and declarations.
Referring to the EIC court in Kakula Land case they highlighted that all lands in Efate are being looked after by the chiefs but they do not own them.
The judgement said that the people living and working on those lands are the owners and the authority of looking after the people means that a chiefs’ have their boundaries to look after and that unable the authority of other chiefs from other boundaries over his area.
They said that coincides with their view, makes it clear that a chief may control or oversee a customary land boundary without necessarily being the custom owner of the land within it and his control over a customary land boundary is strictly exclusive such as that no other chief may enter or seek to control the same customary land boundary.
They also made reference to Chapter 4.1 of book ‘Kastomari Land Loa’ by Vaturisu Council of Chiefs that claimed that the proper way for an Efate and offshore islands custom chief who has a customary custodial right inside a village boundary, has the right to allocate any land to any custom owner.
By applying that customary land tenure principals to the present case, they said that Chief Manlaewia could have full custodial customary right over Malasa land boundary to the exclusion of Chief Maripopongi who would equally have exclusive control over Tanmiala boundary.
They said that that Tanmiala is a bigger boundary encircling the Malasa land boundary that does not mean that Chief Maripopongi is the custom owner of Malasa boundary.
And they declared Chief Manlaewia the customary land owner of the Malasa in Paonangisu.