IN THE SUPREME COURT OF	Civil  	
THE REPUBLIC OF VANUATU	Case No. 22/883 SC/CIVL 	
(Civil Jurisdiction)		

BETWEEN:	
Family Vemol represented by Frank Molvatol      
								Claimant  

AND:	
Family Sangary    
								First Defendant	

AND:	
Republic of Vanuatu     
								Second Defendant

Date:	3 May 2024    
Before:	Justice V.M. Trief 
Counsel:	Claimant – Mr L. Tevi    
	First Defendant – in person 
	Second Defendant – Ms J.E. Toa (excused from further appearance)   
Copy to:	Mr R. Tevi  

JUDGMENT   

A.	Introduction  

1.	This matter was listed for trial today. No appearance was made for the Claimant Family Vemol represented by Frank Molvatol, and no explanation why. I had previously excused counsel for the Second Defendant the State from further appearance.   

2.	The First Defendant Family Sangary’s counsel Mr R. Tevi appeared. He stated that Family Sangary had not complied with the Orders of the Court dated 29 August 2023 to file and serve sworn statements. He stated that his difficulties communicating with his client and to ensure compliance with the Orders of the Court had led him to file Notice of Ceasing to Act on 29 April 2024. He sought the leave of the Court to cease acting. I accepted the explanation given and granted Mr Tevi leave to cease acting. 

3.	This is the judgment in this matter.   

B.	The Pleadings 

4.	By the Claim filed on 10 May 2022, Family Vemol alleged that they together with the First Defendants Family Sangary are disputing claimants for Buoro custom land on Aore island. That dispute is pending before the Area Land Tribunal pursuant to the Custom Land Management Act No. 33 of 2013 (the ‘CLM Act’). They alleged that the custom ownership of Buoro custom land has not yet been determined however Family Sangary have created leases and other dealings including subdivision of that custom land. It is also alleged that the State knows that Family Sangary are not declared custom owners yet has registered, and continues to register, leasehold dealings for them. Finally, Family Vemol alleged that as a disputing claimant for the custom land, they have suffered from the Defendants’ actions to register leasehold dealings and collect money from those dealings.   

5.	The relief sought included an order that Family Sangary account for all monies had and received on behalf of the custom owners since 2 February 1982, an order that pending declaration of the custom ownership of Buoro custom land, that all land rentals and other income from the leases be paid into a trust account established by the State, that no funds be paid from that account without further Order of the Court, orders restraining Family Sangary from any further dealings, and costs.  

6.	By the First Defendant’s Defence and Counter Claim filed on 17 May 2022, Family Sangary alleged that they created leases over Buoro custom land before the land dispute commenced, that Family Vemol do not have standing to challenge the creation of the leases, that they have revoked their licence given to Family Vemol to reside on Buoro land and that therefore Family Vemol are now trespassers on the land. The relief sought included dismissal of the Claim, an order evicting Family Vemol from Buoro custom land and costs.  

7.	By the Claimant’s Defence to the Counter Claim, Family Vemol denied that Family Sangary can give anyone a licence as they are not declared custom owners, said that they have a right to occupy the land as they are also claimants to it, that as disputing claimants they have brought the Claim to protect the land from the leasehold dealings by Family Sangary, and that the Counter Claim should be dismissed with costs.  

8.	The State has not filed a Defence. It abides the Order of the Court. 

C.	Evidence  

9.	No evidence has been filed in support of the First Defendant’s Defence and Counter Claim.   

10.	The Claimant filed the Sworn statement of Frank Molvatol on 12 September 2022. Mr Molvatol deposed that Family Vemol is a disputing claimant for Buoro custom land on Aore island, which dispute is pending pursuant to the CLM Act. He deposed that the Custom Land Management Office (‘CLMO’), by letter dated 3 March 2017, wrote to Family Sangary that their leasehold dealings under a Ministerial declaration needed to stop and all monies from the leases be paid into a trust account pending the determination of the custom ownership dispute [Attachment “FM2”]. He deposed that the letter had been ignored and that leasehold dealings continue to be made and registered.   

11.	Mr Molvatol also deposed that Family Vemol were disadvantaged as nearly all of Buoro custom land was now leased without declared custom ownership and if the Court did not intervene, all of the land could be destroyed and any declared custom owner would lose the benefit of enjoying the land and its environment. He and his family believe that monies received from the leases should be kept in a trust account for any future declared custom owners.     

12.	On 12 April 2023, the State filed the Sworn statement of Gordon Willie, the Director of Lands, to assist the Court. Mr Willie deposed that by “Deklereson blong Representative blong ol Kalsom Owna” (Declaration of the Reprentatives of the Custom Owners) dated 2 June 1982, the Minister of Lands declared Edsen Sagari as the representative of the custom owners of Pre-Independence titles 939, 1199 (Van Nerum), 435, 897, 898 (Charpentier), 940, 385, 3750 (Giozzi), 388, 386 and 390 (French Gavman) [Attachment “GW2”]. 

13.	Mr Willie deposed that by a second “Deklereson blong Representative blong ol Kalsom Owna” (Declaration of the Reprentatives of the Custom Owners) dated 15 September 1982, the Minister of Lands declared Edsen Sagari and Sarki Robert as the representatives of the custom owners of Pre-Independence titles 391, 3586, part of 396 and 398 [Attachment “GW3”]. He deposed that leases were created and registered based on the Ministerial declarations.   

14.	Mr Willie also deposed that by a Statement of Declaration dated 16 June 2011, Edson Sagari authorised his sons Wilson Sangar, Nelson Sangar, Charlieson Sangar and Rexon Sangar to execute all instruments and do acts necessary on his behalf [Attachment “GW4”]. On 18 March 2013, the Director of Lands registered in the Land Leases Register (lease title no. 04/3023/053) a Change of Name of Lessor to the names in Attachment “GW4” [Attachment “GW6”]. Mr Willie deposed that the Director of Lands has continued to register leasehold dealings with Edson Sagari’s sons as lessors giving consents for such dealings in the absence of any declaration of custom ownership.   

15.	There is no evidence contradicting Mr Molvatol and Mr Willie’s evidence. I accept their evidence. 

D.	Consideration 

16.	There is no evidence to prove the First Defendant’s Defence and Counter Claim. Accordingly, the Counter Claim must be dismissed with costs. 

17.	On the evidence, I find that there has not been any declaration of custom ownership of Buoro custom land on Aore island. Further, that Family Vemol and Family Sangary are disputing claimants for the custom ownership of that land. 

18.	I also find that members of the First Defendant have been registered as the lessor of leases over Buoro custom land including over the lands covered by the Pre-Independence titles referred to in Attachments “GW2” and “GW3”. The Ministerial declarations relied on for Family Sangary acting as lessor on those leases appointed their ancestor Edsen Sagari as a representative of the custom owners and others having interests in the land. Those Ministerial declarations did not and could not constitute any title as custom owners: Valele Family v Touru [2002] VUCA 3 at p. 9.  

19.	Accordingly, there is no question that Family Vemol have standing to bring the Claim and that there is no lawful basis for members of Family Sangary to be the registered lessors of leases over Buoro custom land on Aore island. The registered lessor of the subject leases must be changed to remove the names of members of Family Sangary and to substitute the Minister of Lands as registered lessor on behalf of the disputing custom owners pursuant to s. 6Z of the Land Reform Act [CAP. 123].     

20.	It is fundamental that monies received from the leases be kept for any future declared custom owners in a trust account established by the State.   

21.	For the reasons given, the Claimant has proved the Claim on the balance of probabilities. Judgment will be entered for the Claimant. 

E.	Result and Decision 

22.	Judgment is entered for the Claimant and it is ordered as follows:   

a.	The First Defendant is to give an account for all moneys had and received on behalf of the custom owners from 2 June 1982 to date; 
b.	The Second Defendant through the Director of Lands is to register a Change of Name of Lessor removing as a registered lessor Edson Sagari, Wilson Sangar, Nelson Sangar, Charlieson Sangar and Rexon Sangar and/or any other person acting in reliance on a Ministerial declaration, and substitute as registered lessor the Minister of Lands on behalf of the disputing custom owners pursuant to s. 6Z of the Land Reform Act [CAP. 123], in respect of all lease titles over Buoro custom land on Aore island, including but not limited to the following:    
04/3014/004	04/3023/063 	04/3023/100 	04/3023/190 	
04/3014/005 	04/3023/064 	04/3023/115 	04/3023/191 	
04/3014/006	04/3023/065	04/3023/116 	04/3023/192 	
04/3014/007 	04/3023/066 	04/3023/117 	04/3023/193 	
04/3014/008 	04/3023/067 	04/3023/118	04/3023/194 	
04/3014/009 	04/3023/068 	04/3023/119 	04/3023/195 	
04/3014/010 	04/3014/069 	04/3023/159 	04/3023/196	
04/3014/011 	04/3014/070 	04/3023/160 	04/3023/303	
04/3014/012	04/3023/071	04/3023/161 	04/3023/304	
04/3014/013 	04/3023/072 	04/3023/162 	04/3023/306	
04/3014/014	04/3023/073 	04/3023/163 	04/3032/007 	
04/3014/015 	04/3023/074 	04/3023/164 	04/3032/008	
04/3014/016 	04/3023/075 	04/3023/165 	04/3032/009	
04/3014/017 	04/3023/076 	04/3023/166 	04/3032/010	
04/3014/018 	04/3023/077 	04/3023/167 	04/3032/011 	
04/3014/019 	04/3023/078 	04/3023/168 	04/3032/012	
04/3014/020	04/3023/079 	04/3023/169 	04/3032/013	
04/3014/021 	04/3023/080 	04/3023/170 	04/3032/014	
04/3014/022	04/3023/081 	04/3023/171 	04/3032/015 	
04/3014/023 	04/3023/082 	04/3023/172	04/3032/016	
04/3014/024 	04/3023/083 	04/3023/173 	04/3032/017	
04/3014/025 	04/3023/084 	04/3023/174 	04/3032/018	
04/3014/034 	04/3023/085 	04/3023/175 	04/3032/019 	
04/3023/031	04/3023/086 	04/3023/176 	04/3032/020	
04/3023/032 	04/3023/087 	04/3023/177 	04/3032/021	
04/3023/033	04/3023/088 	04/3023/178 	04/3032/022	
04/3023/052 	04/3023/089 	04/3023/179 	04/3032/023	
04/3023/053 	04/3023/090 	04/3023/180 	04/3032/024	
04/3023/054 	04/3023/091 	04/3023/181 	04/3032/025	
04/3023/055 	04/3023/092 	04/3023/182 	04/3032/026	
04/3023/056 	04/3023/093 	04/3023/183 	04/3032/027	
04/3023/057 	04/3023/094 	04/3023/184 	04/3032/028	
04/3023/058 	04/3023/095 	04/3023/185 	04/3032/029	
04/3023/059 	04/3023/096 	04/3023/186 	04/3032/030	
04/3023/060 	04/3023/097 	04/3023/187 	04/3041/002	
04/3023/061 	04/3023/098 	04/3023/188 	04/3041/005	
04/3023/062 	04/3023/099 	04/3023/189 	04/3041/011	
04/3041/012	04/3041/021	04/3041/039	04/3041/048	
04/3041/013	04/3041/022	04/3041/040	04/3041/049	
04/3041/014	04/3041/023	04/3041/041	04/3041/050	
04/3041/015	04/3041/024	04/3041/042	04/3041/051	
04/3041/016	04/3041/034	04/3041/043	04/3041/052	
04/3041/017	04/3041/035	04/3041/044	04/3041/053	
04/3041/018	04/3041/036	04/3041/045	04/3041/054	
04/3041/019	04/3041/037	04/3041/046	04/3041/117	
04/3041/020	04/3041/038	04/3041/047		

c.	That all land rentals and all other income in respect of the lease titles set out in the table in the preceding paragraph be paid by the lessees to the Custom Owner Trust Account; 
d.	That no funds are to be paid from the Custom Owner Trust Account in respect of the lease titles set out in the table above until further Order of the Court; 
e.	That the First Defendant and its members are restrained from entering any agreement and any sale or other leasehold dealing in respect of Buoro custom land on Aore island or any leasehold title over that land until further Order of the Court; and 
f.	That the First Defendant and its members are restrained from issuing or otherwise being party to any Forestry Licence in respect of Buoro custom land on Aore island or any leasehold title over that land until further Order of the Court. 
23.	The First Defendant’s Counter Claim is dismissed.   

24.	Costs shall follow the event. The First Defendant is to pay the Claimant’s costs of the proceeding fixed at VT150,000 by 4pm on 3 June 2024.   

25.	The Claimant is to serve this Judgment on the Defendants and file proof of service.  

DATED at Port Vila this 3rd day of May 2024   
BY THE COURT 

Justice Viran Molisa Trief