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Valele Family v Touru [2002] VUCA 3; Civil Appeal Case 01 of 2002 (26 April 2002)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

Civil Appeal Case No.01 of 2002

BETWEEN:

THE VALELE FAMILY
represented by Chief Titus Valele
Appellant

AND:

JAMES TOURU
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice John von Doussa
Hon. Justice Bruce Robertson
Hon. Justice Daniel Fatiaki

Counsels: Mr. John Malcolm for the Appellant
Mr. Bill Bani Tamwata for the Respondent

Hearing date: 23rd April 2002.
Judgment date: 26th April 2002.

REASONS FOR JUDGMENT

This is an appeal against the dismissal on 17^th December 2001 of an application for an interlocutory injunction. The underlying proceedings in which the injunction was sought were commenced on 14^th September 2000 by Originating Summons by Chief Titus Valele as representative of The Valele family. The Originating Summons sought the following orders:

1. FOR an Order against the First Defendant as representative and trustee to account for all moneys had and received on behalf of the Custom Owners from 2^nd February 1982 to the date of this Application.

2. PENDING hearing and determination of Island Land Court Case No. all land rentals or other income from Lease Titles;

a) 04/2644/001 (SPFC)

b) 04/3022/005 (Club Nautique)

be paid by the lessees to a trust account to be established by the Plaintiff at Banque d’Hawaii (Vanuatu) Limited, Santo.

3. THAT no funds be paid from such account without further Order of the Court.

4. THAT no party to enter agreements engage in forestry operations or other commercial land uses of the land or development thereof without further Order of the Court.

5. THAT the Second Defendant be restrained from issuing any Forestry Licences in respect to the said titles without further Order of the Court.

6. REMOVING the First Defendant as being representative of the Valele Family.

7. FOR such further or other relief as this Honourable Court deem just.

8. THAT the First Defendant be ordered to pay the costs of and incidental to this suit to be taxed if not agreed.

9. THAT the Fourth Defendant immediately cease logging operations on the property by itself or its agents or assigns or sub-contractors.

10. THAT the Third Defendant hold all or any rental payments for the land in trust until further order.

On 27^th September 1990 the primary Judge made an interim order on an ex-parte application in terms of paragraph 2, 3, 4, 5, 7 and 10 of the relief claimed in the Originating Summons. The matter was adjourned for an inter parties hearing which ultimately led to the dismissal of the application which is now the subject of this appeal.

The relief claimed is limited to the land comprised in two Lease Titles identified in paragraph 2 of the Originating Summons. It is convenient to refer to this land as the “Natinae” land, a description used by the Appellants (although argument before this Court suggests that other land may also be included within that description).

In support of the claim for the injunction, the Appellants asserted before the primary Judge that:

- they are the custom owners of the Natinae land;

- there is a long running unresolved dispute with the respondent

James Touru as to who are the custom owners of the land. Mr. Touru claims to be the custom owner of Natinae (and, it seems, in conjunction with Barnabas Visi and Moses Moli to be custom owners of neighbouring land over which there is also a dispute with the Appellant);

- since 22^nd February 1982 Mr. Touru has received the rent for

the two Natinae leases and has paid none of it to the Appellant or his family;

- the Appellant in 1997 instituted the proceedings in the Island

Court to have the dispute over custom ownership of the Natinae land determined, and that claim remains unresolved;

- the Appellant contends that the Island Court is the only body with the jurisdiction and authority to make a binding determination of custom ownership, and that until it does so the Natinae land remains land over which custom ownership is in dispute.

Mr. Touru opposed the Appellant’s application. Assertions made by him in affidavits and argument before the primary Judge included that:

- in or about 1981 a committee known as The Utalamba Committee was established to look into land matters in Santo. It was a representative committee comprising members representing Malo, Tutuba, South and West Santo, and East and North Santo. The committee was to work in close association with the Department of Lands. Mr. Touru argued that it had jurisdiction to determine customary ownership of land on Santo. He said that he was nominated to be a representative of custom owners on that committee, the nomination being formalized by a declaration made on 22^nd February 1992 by the then Minister of Lands and Natural Resources;

- Mr. Touru tendered a copy of the document upon which he relied: that document reads:

“DEKLERESON BLONG REPRESENTATIV BLONG OL KASTOM OWNA –

Mi, Sethy Regenvanu, Minista blong Land mo Natural Resources. Mi bin save inaf se ibin gat toktok long saed blong ol kastom owna blong land ia we igat taetel namba 949, 301, 1943 mo 4115 mo 4115 long Santo aelan insaed Northern District, se emi land JANICA – PEKOA AREA we mi Deklea long Plan ia se long tingting blong mi olsem we istap long seken 6 (2) blong Land Reform Regulasen blong 1980 blong givim Nem:

Mr. JAMES TURA

Mr. BARNABAS VISI

MR. MOSES MOLI

(Olgeta blong Tutuba)

Se ol man ia bambae oli representem ol kastom owna mo ol pipol we oli kat kastom interest long land ia mo mekem oli save tokbaot way mo use blong land folem Land Reform Reguleson.

Sapos wan man ino akri blong ol man olsem representative blong ol kastom owna, imas talem ikam long mi or offisa long Dipatmen blong Rural Lands or District Komisona long ples we land ia istap long bifo 30 dei ipas.

Mekem long Vila long 22^nd dei February 1982.

Sign: J. S. REGENVANU.”

- prior to 1982 Mr. Touru lodged a claim in an “Area Land Court” (at times referred to in his evidence and in the judgment as an “Area Land Committee”) which sat at Janica. Mr. Touru claimed customary ownership of Natinae and other land. He paid a VT6.000 fee to the Area Land Committee. Mr. Touru said that there was only one claim lodged with the Committee over the Natinae land and the Committee declared him to be the custom owner of it. This decision was conveyed to an officer of the Department of Lands. No “appeal” against the decision was advised to the Department Mr. Touru said the Minister then declared him to be the custom owner of the Natinae land, and other adjoining land;

- a council of chiefs which met at Deproma on 22^nd March 1988 confirmed that Mr. Touru was a custom owner of the land. The decision of the council of chiefs did not name the Appellant as a custom owner;

- at about the same time, in early February 1988, the Department of Lands and Natural Resources wrote to Messrs. Touru, Barnabas Visi, Moses Moli, Etiene Tura, Timothy Molbarov and Rukon Perei informing them that there had been settlement of the land dispute concerning titles including Natinae, and that the Santo Land Council, which had been receiving rents, would pay out the moneys in hand to be shared equally between the addressees. Mr. Valele was not named in that correspondence as a party entitled to share in the rents;

- Mr. Touru said that the Appellant and his family did not seek to assert rights of custom ownership before the Utalamba Committee or the meeting of the council of Chiefs at Deproma.

- Mr. Touru contended that Court proceedings before the Magistrate’s Court at Luganville concerning the sharing of the moneys distributed by the Santo Land Council, and in the Supreme Court in June 1990 in an appeal from that decision, had determined that the custom owners of the Natinae and adjoining land were Mr. Touru, Barnabas Visi and Moses Moli being the three people named in the Declaration made on 22^nd February 1982.

- in summary, Mr. Touru contended that by reason of the decisions of the Utulamba Committee (the Area Land Committee), the decision of the council of chiefs at Deproma and the Court proceedings, the issue of custom ownership had already been decided, and the Appellant was estopped from claiming customary ownership.

In dismissing the Appellant’s claim for a continuation of the injunctive relief, the primary Judge substantially upheld Mr. Touru’s contentions. Further, it was held that the injunction should not have been granted in any event as the Appellants had used the wrong Court procedures.

Mr. Touru’s arguments before the primary judge, and before this Court, commenced by stressing the apparent importance of the Minister’s Declaration made on 22^nd February 1982. The primary Judge recognized that the substance of the Declaration did not come within the subject matter of s. 6 of the Land Reform Regulations, 1980 (which was in the same terms as s. 6 of the Land Reform Act [CAP. 123]). A certificate validly issued under s. 6 would authorize an alienator to enter into negotiation with custom owners. Section 6 is not concerned with appointing a representative to act in negotiations on behalf of custom owners.

The primary Judge held that the land in question was not alienated land. He correctly recognized that as there was a dispute as to custom ownership, s. 8 of the Land Reform Regulations (which was in substantially similar terms of s. 8 of the Land Reform Act) applied. That section provided that the Minister shall have general management and control over all land not occupied by an alienator where custom ownership is disputed.

As the land in question was not alienated land, s. 25 of the Alienated Land Act [CAP. 145] could have no application. That section provides that in the case of alienated land the Minister may appoint a person to act as trustee for and to represent the custom owners for the purpose of that Act, that is for the purpose of the trustee negotiating with an alienator or registered negotiator. We do not think that the provisions of s. 25 are of any assistance in construing the effect of the Declaration made on 22^nd February 1982.

The primary Judge concluded that the Declaration must have been made by the Minister in exercise of the power in s. 8 of the Land Reform Regulations. As we understand the reasons for judgment it appears that the primary Judge concluded that the appointment of Mr. Touru, Barnabas Visi and Moses Moli to represent the custom owners was in furtherance of the Minister’s general power of management and control of the land. For reasons which follow we do not agree with that conclusion, but even if it were correct, the Minister’s power under s. 8 is one to be exercised in the interests of and on behalf of the custom owners. The section does not empower the Minister to issue a certificate, or take any other action, which would have the effect of deciding the dispute as to custom ownership. The power is confined to one of management intended to preserve the interest of the custom owners until the dispute is otherwise resolved according to the law of the Republic of Vanuatu.

We do not agree with the conclusion that the Minister’s Declaration was issued under s. 8 of the Land Reform Regulations for the following reasons. First, this interpretation of the Declaration is contrary to its terms. The Declaration purports to be issued under s. 6 (2) of the Regulations. If that section does not empower the issue of the Declaration the consequence would normally follow that the Declaration was made without authority and is of no legal consequence. Further, to construe the Declaration as one issued under s. 8 of the Land Reform Regulations is to give it an effect which is contrary to other evidence which was before the Court.

Contrary to Mr. Touru’s evidence, he was not the registered lessor of the Natinae land. The two Lease Titles for the Natinae land show that the registered lessor is the Santo Land Council. The Santo Land Council was established by the Land Reform (Santo Land Council) Order No.125 of 1981. That Order was made by the Minister of Lands in exercise of power under s. 19 of the Land Reform Regulations 1980. That section provided power for the Minister by order to establish a corporate body for the better carrying into effect of the purposes of the Regulation. That power was incidental to the power of management given to the Minister under s. 8. The promulgation of Order No. 125 of 1981 indicates that the Minister had exercised the power of management by delegating management functions over the land to the Santo Land Council. It would be quite inconsistent with that exercise of power for the Minister at the same time to be delegating overlapping management functions to other individuals.

The scope of the functions and powers that could be given to a body corporate established under s. 19 of the Land Reform Regulations are set out in a schedule to those Regulations. The functions and powers do not include a power to determine disputes as to custom ownership. Order No. 125 of 1981 did not purport to empower the Santo Land Council to resolve ownership disputes. The functions and powers of the Santo Land Council were confined to powers to grant, administer and manage leases of land, to enter into agreements, leases and conveyances or transfers of the land, to act as agents for the Government, to make recommendation to the Minister for the good management of the land, to invest funds, to charge fees and to exercise powers that are necessary to enable the council to carry out its functions. The power to enter into leases of the land specifically required a recital in each lease that the Council is acting on behalf of the Government or the custom owners, as the case may be. The Natinae leases contain recitals to the effect that the leases were entered into on behalf of the custom owners.

The leases remain registered in the name of Santo Land Council as lessor. This is so even though Order No. 125 of 1981 was revoked on 7^th July 1988 by Order No. 31 of 1988 which also provided that all property owned by the Santo Land Council is now vested in the Government of the Republic of Vanuatu. This vesting order has the effect that the Minister, on behalf of the Government, has directly resumed general management and control of the land under s. 8 of the Land Reform Act, and now holds the land as land where ownership is disputed.

The register of Lease Titles gives no support to the claim by Mr. Touru that the ownership dispute has been resolved. It is of course possible that the ownership dispute has otherwise being resolved and that the determination of ownership has not been translated into a change of registered particulars on the Lease Titles. We therefore turn to the matters which Mr. Touru relies upon in support of his assertion that ownership has been determined.

The argument that the Utulamba Committee and its associated “Area Land Court” or Area Land Committee, and the council of chiefs which met at Deproma in 1988 had lawful authority to resolve disputed ownership, and to make a determination binding on all claimants rests on the proposition that these bodies were “appropriate customary institutions or procedures to resolve disputes concerning the ownership of custom land” within the meaning of Article 78 (2) of the Constitution of the Republic of Vanuatu, and gain their lawful authority to finally resolve ownership disputes from that Article.

This argument reflects a mis-understanding of Article 78.

Article 78 is one of the provisions in Chapter 12 of the Constitution dealing with land. Chapter 12 contains provisions of central importance to the citizens of Vanuatu. Chapter 12 includes the following provisions:

“LAND BELONGS TO CUSTOM OWNERS

73. All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants.

BASIS OF OWNERSHIP AND USE

74. The rules of custom shall form the basis of ownership and use of land in the Republic of Vanuatu.

PERPETUAL OWNERSHIP

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.

NATIONAL LAND LAW

76. Parliament, after consultation with the National Council of Chiefs, shall provide for the implementation of Article 73, 74 and 75 in a national land law and may make different provision for different categories of land, one of which shall be urban land.

COMPENSATION

77. Parliament shall prescribe such criteria for the assessment of compensation and the manner of its payment as it deems appropriate to person whose interests are adversely affected by legislation under this Chapter.

DISPUTES

78. (1) Where, consequent on the provisions of this Chapter, there is a dispute concerning the ownership of alienated land, the Government shall hold such land until the dispute is resolved.

(2) The Government shall arrange for the appropriate customary institutions or procedures to resolve disputes concerning the ownership of custom land.”

Chapter 12 also includes Article 79 which provides that land transactions between an indigenous citizen and a non-indigenous citizen or a non citizen shall only be permitted with the consent of the Government, Article 80 which provides that the Government may own land “in the public interest”, and Article 81 which provides for the Government to buy land from custom owners and to redistribute it.

Article 78 must be read as a whole, and in light of all the other provisions of the Constitution. In particular, Article 78 (2) must be read subject to Article 78 (1). Article 78 (1) expressly limits the operation of Article 78 to disputes concerning the ownership of alienated land. In such a case the land is held by the Government until the dispute is resolved, and Article 78 (2) spells out what the Government is to do whilst it holds the land. The Government must arrange to have the dispute resolved by ‘the appropriate customary institution or procedures’.

The Constitution itself gives guidance about the appropriate customary institution or procedures for resolving disputes about custom ownership. The Constitution establishes the framework for the government of the Republic. It provides for law making powers through a democratically elected Parliament, for administration of the State through an executive, and for the administration of justice, including the resolution of disputes, by independent Courts. In particular Article 52 provides:

“Parliament shall provide for the establishment of village or island courts with jurisdiction over customary and other matters and shall provide for the role of chiefs in such courts.”

As the Constitution expressly provides that Parliament will establish courts including village or island courts with jurisdiction over customary matters, the reference in Article 78 (2) should be interpreted as meaning institutions and procedures established within the constitutional court system.

The present case is not concerned with alienated land, and Article 78 has no application. However, it follows from what we have said about the constitutional framework under which the Courts of the Republic are established that the Constitution envisages that disputes between citizens, or between a citizen and the Government, including disputes over custom ownership of land, will be finally resolved through the Courts, if they cannot be settled by agreement between each and every party who claims a competing interest.

Pursuant to the direction in Article 52 of the Constitution, Parliament has provided for the establishment of island courts in the Island Courts Act [CAP. 167]. By s. 8 of that Act, island courts have a civil jurisdiction relating to land. Section 3 (4) requires that where the matter before an island court concerns disputes as to ownership of land, the court shall be constituted by a magistrate nominated by the Chief Justice under s. 2A and three justices appointed by the President of the Republic who are knowledgeable in custom. Section 10 provides:

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

Where a dispute over custom ownership of land arises it is to be expected that those involved will do their best to reach an agreement to settle the dispute, with such assistance as is possible from customary procedures and meetings of chiefs. However, it is clear from the Constitution and from the Island Courts Act that unless everyone who at any time claims an interest in the land is prepared to accept a settlement, the only bodies that have lawful jurisdiction and power to make a determination that binds everyone are the Courts, in the first instance the local Island Court, and if there is an appeal, the Supreme Court.

This conclusion immediately points up a difficulty with attempted settlements of ownership disputes arranged through bodies such as councils of chiefs that are not part of the constitutional court system. Article 73 of the Constitution provides that all land in Vanuatu belongs to the indigenous custom owners and their descendants. Unless an ownership dispute is determined through the Court system, in the manner provided for in the Constitution, a descendant of a party to an ownership dispute that has been “settled” outside the Court system may reopen the dispute by claiming a custom entitlement under Article 73. This kind of difficulty is not unknown in the law. Where the interests of children and future generations relating to land arise, the general law provides that their interests can only be affected by a settlement if the terms of the settlement are approved by a Court as being in the interests of the present and future children.

It follows that neither the Utalamba Committee and its associated “Area Land Court” or Committee (which was in no sense a court established under the Constitution) nor the council of chiefs that sat at Deproma had any jurisdiction or authority to make a determination of custom ownership which bound claimants who disagreed with their ruling.

We turn next to the decision of the Magistrate’s Court concerning the sharing of the rents from the Natinae and neighbouring land, and in the appeal heard by Cooke CJ. in June 1990. In those decisions the claimant failed to win a share of the rents on the basis that the custom owners entitled to the rents were the three men named in the Minister’s Declaration made on 22 February 1982. It is sufficient to refer to the following passages from the short judgment of Cooke CJ in the Supreme Court (Judgment No. 21 of 1990.).

“I have read through the judgment in this case and the notes on the file. It is clear that you Timothy Molbarav have no declaration of ownership of the land in question. The only declaration I have is that in favour of James Tura, Barnabas Visi, and Moses Moli.

Timothy Molbarav had the opportunity of appealing against the Minister’s declaration but you never did so. It is now too late to consider any appeal. Whether you were encouraged not to appeal or not, is not a matter for this court in this case.”

Even if the Minister’s Declaration made on 22 February 1982 were to be considered as one validly made under s. 25 of the Alienated Land Act, the terms of the Declaration and the role which those people named as representatives would assume cannot support a conclusion that the Declaration constitutes their title as custom owners. The Declaration merely appoints them to represent the custom owners and others having interests in the land, whoever those people may be. In acting as representatives those people named in the Declaration act in a fiduciary capacity (whether or not they are trustees as a matter of strict law). A person who acts in a fiduciary capacity cannot use that position or the instrument of appointment to further personal interests at the expense of the interests of those who are being represented. The law is very strict in enforcing that principle and may set aside transactions where a fiduciary has improperly used his or her position.

It follows from what we have said about the Declaration and about the jurisdiction of the Courts as the only bodies recognized under the Constitution with power to finally determine disputes over custom ownership that we are unable to agree with the reasons of Cooke CJ. In our respectful view the earlier court decisions relied on by Mr. Touru were wrong and must be overruled.

In summary, we consider that none of the matters relied on by Mr. Touru establish that the custom ownership claims of Mr. Valele and his family have been finally determined against them. Those claims fall within the jurisdiction of the relevant Island Court wherein Mr. Valele has commenced proceedings. Until that claim is determined according to law the custom ownership dispute continues.

However, it does not follow from this conclusion that all the evidence put forward by Mr. Touru is totally irrelevant in determining who are the true custom owners of the Natinae land. Our decision only establishes that the processes and decisions which have occurred in the past have not finally determined who are the custom owners. Much of the evidence adduced by Mr. Touru would be admissible in the Island Court.

It would be for the Island Court to decide whether in the circumstances of the case the alleged inactivity of Chief Titus Valele and other members of his family during the processes which occurred in the 1980’s indicates that he and his family do not truly have interests as custom owners, or whether there is some other explanation for their inactivity.

We now turn to the primary judge’s finding that the application failed in any event because wrong procedures had been followed in so far as no Writ had been issued prior to the Appellant seeking interlocutory Orders. In support of this proposition the primary Judge quoted the following passage from the judgment of Vaudin d’Imecourt CJ. in Deamer v. Unelco Management (1992) 2VLR 554 at 555:

“...... an interlocutory injunction may be granted at any time after the issue of the Writ to maintain the status quo ......”

The conclusion that a wrong procedure had been followed is based on a misapprehension of Deamer v. Unelco Management. The passage relied on by the primary judge has been taken out of context. A reading of the judgment as a whole makes it plain that so long as there is an existing cause or matter on foot, it does not matter whether the proceedings were commenced by Writ or by Originating Summons. Vaudin d’Imecourt CJ based his decision upon Order 29 rule 1 of the Supreme Court Practice (the “White Book”) which states that an application for the grant of an injunction may be made by any party to a cause or matter, but may only be made before the issue of the Writ or Originating Summons by which the cause or matter is begun in a case of urgency. Order 29 rule 1 (2) provides that a plaintiff may in the case of urgency make an ex-parte application on affidavit. Rule 1 (3) provides that where an injunction is applied for in an urgent case an injunction may be granted on terms providing for the later issue of the Writ or Originating Summons. At p. 557 Vaudin d’Imecourt CJ said:

“Ex-parte interim injunctions should only be given where there is a real need to give the same. Never without originating summons or affidavit, save with an undertaking to file the same forthwith. Always a return date, and a short one at that, should be given.”

In the present case there was an Originating Summons which had commenced the cause or matter within the Supreme Court. The primary remedy sought was an account of moneys received by Mr. Touru on behalf of the custom owners from 2^nd February 1982 to the date of the application. There was no irregularity in the Court procedures adopted by the Appellant.

Finally, we observe that there seems to have been some confusion in the proceedings before the primary Judge as to whether the application was for a permanent injunction or for an interlocutory injunction. In Deamer v. Unelco Management at 555 Vaudin d’Imecourt CJ. said:

“As regards time, injunctions are either interlocutory (or interim) or perpetual. A perpetual injunction is granted only after the plaintiff has established his right and the actual or threatened infringement of it by the defendant; an interlocutory injunction may be granted at any time after the issue of the Writ to maintain things in status quo. The Court must be satisfied that there is a serious question to be tried at the hearing, and that on the facts the plaintiff is probably entitled to relief.”

The last sentence of that quotation applies to the granting of an interlocutory injunction which is intended to operate until the final trial of the cause or matter, at which time the legal rights claimed by the plaintiff will be established.

It should also be noted that the statement in the above quotation that “the plaintiff is probably entitled to relief” is based on Nineteenth Century authority which was not followed by the House of Lords in American Cyanamide Co. v. Ethicon Ltd [1975] UKHL 1; [1975] AC 396. To establish that there is a serious question to be tried it is not necessary for the plaintiff to establish a prima facie case, or a probability of success. The evidence available to the Court at the hearing of an application for an interlocutory injunction is likely to be incomplete. It is given on affidavit and has not been tested by oral cross-examination. If the affidavits show that there is a serious question to be tried, the assessment of the merits of the plaintiff’s claim is a matter for the trial at a later date.

In the present case, on 20^th September 2000 an interim injunction was made on an ex-parte application. An ex-parte injunction should always have an early return date so that the appropriateness of injunctive relief until trial can be considered at the hearing where the defendant is present and can be heard. Even where there is an interim injunction made in the first instance, the issue before the Court when an inter-parties hearing for an interlocutory injunction occurs is whether there is a serious question to be tried. If so, the Court must then consider the balance of convenience between the parties having regards to the seriousness of the issues in question, and whether the position of the defendant can be appropriately protected, by an undertaking from the plaintiff as to damages or otherwise, in the event that the plaintiff ultimately fails at trial. A land claim which raised questions about the custom entitlements of present and future children under Article 73 of the Constitution may require some modification of the normal practice that a plaintiff must give an undertaking as to damages as a term for the grant of an interlocutory injunction, but it is not necessary in the circumstances of this case to discuss this.

Generally speaking, it is not appropriate upon an application for an interlocutory injunction for the Court to finally decide disputed questions of fact. That is for the ultimate trial. At the interlocutory stage it is sufficient that there is evidence that could be accepted at trial which raises a serious question to be tried. The application which the parties argued before the primary judge was only for an interlocutory injunction. However, the case was unusual in that the evidence put before the primary judge by Mr. Touru raised factual and legal arguments as to why the claim for an account of moneys received by him would inevitably fail. It was necessary in this circumstance for the primary Judge to go further than would have normally been necessary and decide the substance of Mr. Touru’s arguments that custom ownership had already been finally determined.

The affidavit material before the primary judge identified a serious issue to be tried, namely whether Mr. Valele and his family are custom owners of the land, and if so, the extent of their interest. The proper body to determine that issue is the Island Court (or its successor in law), but the Island Court lacks the full extent of the power of the Supreme Court to order an account of the past rents received. The originating summons therefore properly initiated a cause or matter in the Supreme Court, and the claim for an interlocutory injunction to hold the position until the Island Court determines the ownership dispute was properly made. In our opinion upon the appellant giving the usual undertaking as to damages, there should be an interlocutory injunction in terms of paragraphs 2, 3, 4, 5, 7 and 10 of the originating summons with liberty to apply on short notice to a single judge of the Supreme Court. The appeal should be allowed accordingly. The costs of the hearing before the primary judge should be reserved pending the resolution of the proceedings in the Island Court or the land tribunal.

The appellant must now lodge minutes of order reflecting the terms of this judgment to be settled and sealed in the Registry.

The respondent must pay the appellant’s costs of this appeal.

Dated at Port Vila, this 26^th April, 2002.

Hon. Vincent Lunabek CJ
Hon. Justice John von Doussa
Hon. Justice Bruce Robertson

Hon. Justice Daniel Fatiaki