IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No.29 of 2004

BETWEEN:

FAMILY BOBLANG, FAMILY TAKES KALSILIK,
FAMILY KALOKUL, FAMILY KALENGOR, FAMILY MASFIR,
FAMILY AKAU, FAMILY KALTON
Claimants

AND:

EPUEN TRUST
First Defendant

AND:

AKU & LOIC DING
Second Defendants

AND:

VANUATU GOVERNMENT
Third Defendant

Coram: Justice H. Bulu 

Counsels: Mr. Edward Nalyal for Family Boblang 
Mr. Nigel Morrison for Family Kalsilik. 
Mr. John W. Timakata for Family Akau – no appearance 
Mr. George Boar for Jack Boblang 
Mr. Ronald Warsal for the First Defendant – no appearance 
Mr. Daniel Yawah for the Second Defendants – no appearance 
Mr. Frederick Loughman for the Third Defendant 

Date of Hearing: 13 August 2007

Date of Decision: 21 August 2007.

DECISION

Background

1.	 The Claimants in this case are all custom owners of Epuen and beneficiaries under the Epuen Trust. 

2.	 The Claimants in their claim claimed that the Registered Negotiator’s Certificate obtained by the First Defendant over title 12/1041/001 on 30 December 2003 was obtained by fraud or mistake on the part of the Defendants. Secondly, that an Agreement entered into between the First and Second Defendants concerning dealings in the property was null and void as both defendants knew that the Claimants are custom owners of the land and their consent to any dealings in the property is a prerequisite to any such arrangements. That such consents were not obtained. 

3.	 The Claimants have therefore sought the following declarations from this Court:- 

“(1) 	 A Declaration that the Registered negotiators Certificate obtained by the First Defendant over title 12/1041/001 on the 30th December 2003 is null and void and of no effect. 

(2)	 An Order of Rectification cancelling the registered negotiator’s Certificate from the Register of title 12/1041/001, issued on the 30th December 2003. 

(3) 	 A Declaration that the agreement signed by the First and Second Defendants on the 11th March 2002 is null and void and of no effect and that the said agreement is not binding upon the Claimants. 

(4)	 An Order of eviction against the Defendants. 

(5) 	 An Order prohibiting the Defendant’s severally and jointly from entering or trespassing upon, or dealing in any way with land title 12/1041/001.” 

4.	On 28 February 2005 Mr. Kalsakau, on behalf of the Claimants applied for and obtained temporary injunctive orders in the following terms:- 

“(1) Pending the determination of their application filed on 2nd December 2004 no registration of dealings in land titles situated on Epuen custom land including titles ex Valette 12/0941/001, Part 593 and 12/1033/010 is to take place; 

(2) 	 The Director of Land Records is to enter the terms of Order 1 above immediately on the Register kept by the Department in relation to relevant titles on the Epuen custom land; 

(3) 	 First and Second Defendants to file and serve any responses and sworn statements to the amended application of the Claimants within 7 days; 

(4) 	 Claimants to file and serve any response plus sworn statements in response to the Defendant’s responses within 7 days thereafter; 

(5) 	 Costs in the cause; 

(6)	 Next conference is at 11.00 a.m. on 17th March 2005.” 

5.	The grounds advanced in the Application for urgent relief of a temporary nature are as follows:- 

“(1) An application has been filed challenging the ability of the Defendant(s) to take title on the area of Epuen; 

(2) 	The Claimants are entitled to the protection of the Court in proceedings sub-judice from having their rights clearly determined without any inference. 

(3) 	The Claimants rights to Judicial Redress should not be rendered nugatory by dealings on the land pending the determination of these proceedings.” 

6.	The Government and some of the Claimants represented by Mr. Goerge Boar have applied to have Orders of this Court dated 2 March 2005 especially Orders 1 and 2 to be set aside. The reasons, for the Applications are summarized as follows:-

For the Government

(a)	Orders 1 and 2 of 2 March 2005 covers a huge area affecting 189 leases titles, mortgages, transfer of leases and new leases cannot be proceeded and registered in the Land Records Office as a consequence of the said orders. Has an impact on the economy.

(b)	The Orders are temporary in nature but are still there after 2 years affecting commercial and tourism developments as desired by Government in the area concerned.

For Claimants represented by Boar

(c)	The existence of the orders has greatly affected third parties development on the Epuen Land. Epuen Land covers an area of approximately 20,000 hectares. Basically, that the continuing existence of Orders 1 and 2 have frustrated developments in the area.

7.	Mr. Loughman on behalf of the Government has submitted that the issue relevant to this Application is whether any party in the proceedings will be prejudiced by the removal of orders 1 and 2 of 2 March 2005.

8.	In support of their Application Mr. Loughman has argued that the purpose of the claim in the first place is for the protection and development of their property. Some of the Claimants do not agree for the removal of Orders 1 and 2 of 2 March 2005 as in their view it will cause more problems. Mr. Loughman argued that the answer lies in having the Minister step in and take management of the land under section 8 of the Land Reform Act. This, Mr. Loughman submitted, is the best option forward as the parties to this proceeding have a dispute as to the ownership of the land, or different portions of the land within Epuen. Mr. Loughman further submitted that the circumstances of this case is relevant for the Orders to be removed and the Minister steps in to manage the land under section 8 of the Land Reform Act.

9.	The second ground on which the Application is advanced by both the Government and clients of Mr. Boar is that keeping the interim orders in force this long is not benefiting anyone in this proceeding. Its prejudicial effect has outweighed its value in maintaining the said orders.

10.	In response Mr. Nalyal, submitted that the Orders of 2 March 2005, was to keep the status quo, until the substantive claim is disposed of. That has not happened yet. The claim concerns the law relating to procedures to acquire a lease. Whether the process was followed properly.

11.	Mr. Nalyal further submitted that the evidence submitted in support of the Application is too general. It does not identify individual parties, or leases or instruments affected by the said orders. He submitted that those third parties who are adversely affected should be the one who should register their grievances with the Court.

12.	Mr. Nalyal went on that two leases have been issued in breach of the relevant orders. One is lease title 12/1041/025 marked as annexure “A” to sworn statement of Jimmy Kas Kolou Kaltong dated 6th June 2007 and the other lease titles 12/1024/001 and 12/1024/002 marked as annexure “JKK2” to his sworn statement of 22 March 2007. The Government has come to Court with unclean hands.

13.	Mr. Kas Kolou has been declared custom owner of certain land in the area, and especially those where the new leases have been created. Those leases have been issued in breach of the relevant orders. Being a declared custom owner of the land in the question, section 8 of the Land Reform Act cannot apply in this case, he finally submitted.

14.	Mr. Morrison in response submitted firstly, that the claim is not about dispute as to who owns the land in custom. Rather that it challenges the process used to obtain a lease. That it was obtained by fraud or mistake. As such, section 8 of the Land Reform Act cannot apply in this case.

15.	The Interim Orders under scruting now came about as a result of the evidence contained in the sworn statement of Ishmael Kalsakau of 1 March 2005. The orders were issued because the Court was satisfied that the Claimants had a serious question to be tried. And that serious question remains. It is important to know the reasons for which the orders were granted in the first place to fully appreciate why such orders were made and further whether they can be set aside now.

Discussions

16.	It is important in such an Application as this, in the circumstance, where an Interlocutory Application has been made earlier for interim injunctive orders and the Court had granted those, and then further Interlocutory Application is made to change the earlier injunctive orders, to appreciate the reasons why the claim was brought in the first place. What is pleaded and what are the remedies being sought. Secondly, what are the rational for the granting of the existing injunctive orders being challenged for removal under the new Interlocutory application. The Applicants must address the Court on those aspects. They must tell the Court why the existing injunctive order can no longer be maintained.

17.	How do we do that? We go back to the legal principle that will help us. In this case it’s the rules of procedure found in Civil Procedure Rules 2002. Part 7 deals with Interlocutory matters. The orders granted on 2 March 2005 were on the basis that the Claimants have a serious question to be tried and that if the Orders were not granted, the Applicants would be seriously disadvantaged.

18.	The connection between those orders and the claim is that the Applicants then were custom owners, but the Defendants had not sought nor obtained their consents when they entered into an arrangement between themselves to deal with a property of the Applicants and sought to have their lease registered. They wanted to protect their rights as owners of the land and beneficiaries of the Trust.

19.	I have heard counsels and read the Applications, which I consider as a single application, and, in my view, in order to get a just result in the circumstances, I need to go back to the very beginning, starting with the claim.

20.	The Claimants in paragraph 1 of their claim pleads that the “Claimants apply for, Declarations and Orders of Rectification, eviction and restraint”. They further pleaded that they are custom owners of the land.

21.	They pleaded that the Certificate of Registered Negotiator was obtained through fraud or mistake on the part of the Defendants. As a result of such fraud or mistake, they have suffered loss. They further pleaded that on 11 March 2002 the Defendants entered into Agreement between themselves for dealings in the land, and they pleaded that the agreement was an act of fraud.

22.	Consequently they sought orders of the Court:-

•	To declare the Registered Negotiators Certificate over title 12/1041/001 null, void and of no effect; 
•	To rectify the Certificate; 
•	To declare the Agreement of 11 March 2002 between the Defendants not binding on the Claimants; 
•	To evict the Defendants; 

23.	Clearly the dispute between the Claimants and the Defendants in the main proceedings is not about who are the custom owners of the land, but rather whether the process followed to obtain a lease certificate was obtained by fraud or mistake. If a lease has been actually granted pursuant to the certificate then, it is clearly a section 100 action under the Land Leases Act and not a section 8 action under the Land Reform Act. Considering the nature of the claim, it cannot in my view, be a matter that can come within section 8 of the Land Reform Act.

Serious question to be tried?

24.	The test under Part 7 of the rules as to whether the Court should grant an order of this nature is twofold:-

(a)	Is there a serious question to be tried? 

(b)	Would the Applicant be seriously disadvantaged if the order is not made? (where the balance of convenient lies). 

25.	The balance of convenience can have a very wide ambit but includes factors such as whether damages would be satisfactory remedy and the status quo. At the end however, the Court must consider in the light of those factors where the overall justice of the case lies.

26.	It is clear that establishing that there is a serious question to be tried is not the same as establishing that there is “a probability” “a prima facie case” or “a strong prima facie case”. It is rather a threshold question about which the Court must first be satisfied.

27.	The Orders issued on 2 March 2005 were on the basis firstly, that there is a serious question to be tried, and that is whether the certificate was obtained by fraud or mistake.

28.	In this Application, the issue then must be whether the serious question to be tried has gone away or no longer exists.

29.	The Court acknowledges that the Orders being sought to be removed has a history that goes well over 2 years now. That history has been contributed to firstly, by the Claimants fragmentation and the confusion as to who represents who in the proceeding. The proceedings began with Indigène Lawyers representing the majority of the Claimants, Mr. Morrison representing the Kalsilik Family also Claimants and Daniel Yawah representing the Defendants. We now have a total of 5 lawyers representing the Claimants. Some of the Family Claimants have broken up further into smaller groups and have taken up new positions in this proceeding as opposed to their original position, ie, to maintain the status quo until the substantive issue is determined. There are now 3 lawyers representing two defendants.

30.	In addition a number of Applications were filed that have never got off the ground at all but placed in the melting pot.

31.	The destruction of the Court House by fire on 7 June 2007 did not help matters further. It simply piled on to the frustrations. As at the date of hearing of the Application the Court file is basically one third of what it had before the fire.

32.	Another reason for delaying the decision on this Application is because the Court does not have copies of the Application, sworn statement of urgency and the sworn statement in support of the 2005 Application from which the 2 March 2005 Orders were made.

33.	The evidence, from recollection from what was filed before the fire, has not changed. That is, the question raised whether the grant of the certificate was as a result of fraud or mistake remains. That is, in my view, a serious question to be tried under the Land Leases Act (section 100).
34.	
Would the Applicant be seriously disadvantaged if the order is not made? 

35.	The answer to this question, in my view, is no. The nature of the claim is that the Claimants as custom owners do not want the chief and Epuen Trust deal in their land as if they are the custom owners. Their complaint arises out of two situations, firstly, the declaration by the Efate Island Court where it held at page 2:- 

“Follem olgeta baontri we wanwan parti isoem long map, Kot iwantem mekem iklia long fofala parti se disisen blong Kot bambae iblong talem out nomo se who istret kastom ona long eria we Erueti aelan istap long em mo wea nao stret baontri blong Epuen, weta emi Rentapau riva or Enam bay …” 

And where it finally held:- 

“Lukluk bak long olgeta (7) seven poin antap Kot iwantem givim last desisen blong em nowia se; follem kastom blong Epuen Land Dispute Kot ibiliv strong se stret mo tru kastom ona blong Erueti aelan hemi go long Hae Chief Kolou blong Eton Village mo everi family we hemi representem mo semtaem oli anda control blong hem. Kot ibiliv strong se stret baontri we Epuen igo finis long em hemi long Rentapao riva …”

36.	That ties in with the claim by the Claimants that Chief Kas Kolou was declared as custom owner of Eruity Island but not other lands within Epuen. 

37.	The second situation is the one relating to the process followed to obtain a Certificate and Agreement between the Defendants to deal in the lease title in Epuen. The custom owners did not give their consent to any such land dealings envisaged by the Agreement. 

38.	The essence of their claim is that:- 

(a)	Chief Kolou and Epuen Trust must not deal with their custom lands as if it were theirs; 

(b)	They must be consulted and their consents given in any proposed land dealings within their customary land as determined by the Efate Island Court. 

39.	During the hearing, Mr. Morrison and Mr. Nalyal conceded that they do not wish to prevent any custom owner from benefiting from transactions or developments on his land. If the Government can be more precise about the leases it is concerned with and their exact locations, accommodations can be reached for transactions to proceed. In other words, the injunction in orders 1 and 2 of 2 March 2005 must remain to protect unauthorized land dealings. However, where custom owners are in agreement because the development is on their land, they can always come back to Court to seek specific variations of those orders as they would apply to their case pending the determination of the substantive issues in the claim. 

40.	The application for interim orders to vary the Order of 2 March 2005, especially order 1 and 2 to have them set aside is refused. 

41.	It is important to concentrate on resolving the substantive issues in the claim. 

42.	The proceedings is adjourned for conference on 31 August 2007 at 4.30 p.m. 

DATED at Port Vila, this 21st day of August, 2007.

H. BULU
Judge.