Malasikoto v Boe
JUDGMENT
1. I heard Counsel in chambers in relation an urgent application filed by Mr Willie on 8 June 2026. The application was supported by the sworn statement of Chief Silu Malasikoto filed on the same date.
2. Earlier on 8 May 2026 the Claimants applied for urgent restraining orders against the Second, Third, Fourth and Fifth Defendants herein and their agents from creation, signing and registration of the proposed new lease 12/0814/105 [Ex – 12/0814/001] at the Devil’s Point/Tuktuk Area to John Amos and Cindy Amos, the Fourth Defendants.
3. On 21 May 2026 the Court issued the orders exparte, granting the restraining orders sought (as per para. 2 above), costs on an indemnity basis, and liberty to the defendants to apply on 48 hours’ notice.
4. On 28 May 2026 Mr Nalyal filed a Memorandum of the Second and Third Defendants informing that:
a) He acts for them in this proceeding;
b) The Ex parte Orders dated 21 May 2026 were referred;
c) An advice of registration of Lease 12/0814/105 was made on 18 May 2026; and
d) That the Orders dated 21 May 2026 did not have any effect.
5. Mr Nalyal also filed a Notice of Beginning to Act for these defendants on the same date.
6. Subsequently the Claimants filed their second urgent application on 8 June 2026 seeking Orders that:
a) Third, Fourth and Fifth Defendants be injuncted and restrained from dealing with the land comprised in Leasehold Title 12/0814/105 [Ex – 12/0814/001] at Devil’s Point/Tuktuk Area, a parcel of Land reserved for Family Malasikoto located within the Pangona Custom Land boundary and/or causing any development and developing the land in whatever form and/or using the Lease as a guarantee for any financial guarantee purposes whatsoever pending determination of the Claimants’ Supreme Court Claim in this matter and/or such other claims which could be filed by the Claimants against the Defendants.
b) A Mandatory Order be issued requiring the Minister of Lands and the responsible staff and employees of the Ministry and Department of Lands to immediately de-register forthwith Leasehold Title 12/0814/105 [Ex – 12/0814/001] in the Fourth Defendants’ names from the land Register and Records as its registration was done contrary to the law.
c) The Director of Lands and the Chairman of the Land Management and Planning Committee (LMPC) within 7 days be required to furnish the Minutes of the meetings of the LMPC when approved the granting of Lease Title 12/0814/105 to the Fourth Defendants, including the certificate and/or list of lease clearance checks which approved the granting of the said Lease by the Department and Ministry of Lands including the LMPC’s deliberations and decisions regarding the OBJECTION of the Claimants to the new lease.
d) The Attorney General and the State Law Office be required to furnish within 7 days a copy of their legal advice to the Director of Lands; the Director General of the Ministry of Lands which approved or not the grant of the said Lease to the Fourth Defendants including the Claimants OBJECTION to issuing the said Lease.
e) The costs of the application be awarded to the Claimants on an indemnity basis.
Discussion
7. Mr Bong for the First, Second and Fifth Defendants said the Lease has been registered and that the State is not a Party. But Counsel indicated the State would simply abide by Orders of the Court.
8. Mr Nalyal opposed the application. He said the Lease as approved and registered had followed the process and had been registered. He submitted that the proper course would be for the Claimants to proceed under Section 100 of the Land Leases Act to have the Lease cancelled and the Register rectified. He objected to the Orders sought in paragraph 2 of the application. He also raised the delay by the Claimants in not progressing their claim for the last six months since filing.
9. Mr Daniel in response submitted that Mr Nalyal had acknowledged paragraph 6 of the reliefs claimed by the Claimants in their Supreme Court Claim filed on 5 November 2025 which states:
“The First, Second, Third and Fourth Defendants are restrained and injuncted from creating, signing, and registering lease 12/0814/105 [Ex- 12/0814/001] at the Devils Point/Tuktuk Area on Efate Island in the name of John Amos and Cindy Amos.”
10. Further Mr Willie relied on the evidence of Chief Silu Malasikoto filed on May 2026 in support of the first application seeking the exparte orders issued on 21 May 2026. Annexure “C” of that sworn statement discloses the OBJECTION Letter by the Claimants dated 6 March 2026.
11. The final paragraph of the Letter of objection states:
“We hope you consider our clients’ objection seriously and upheld [sic] the objection accordingly pursuant to the laws of this Republic and advise the Chairman of the Land Management Planning Committee as stipulated by the Act.”
12. Mr Bong did not file any evidence by sworn statements from Mr Boe or the Director of Lands and neither did Mr Nalyal. The Memorandum filed by Mr Nalyal is not evidence. It attached a copy of the advice of Registration of Lease 12/0814/105 but it was improper to do so in that manner.
13. Further Mr Nalyal submitted Lease 12/0814/015 was registered following due process but he had no evidence to substantiate that assertion.
14. The evidence by the Claimants is overwhelming and very telling. The letter of objection dated 6 March 2026 has not been acknowledged and it is obvious it has been ignored and disregarded. If indeed a Lease has been registered as indicated by the Advice attached in the Memorandum, it is apparent to me that with the OBJECTION in place, it was by passed in the process. Clearly in my view mistake has been demonstrated. Equally also fraud or dishonestly could be present. The objection letter was copied to the Chair of LMPC, the Minister of Lands and the Director General. Therefore, how could it be by-passed and the Lease granted despite the serious reminder and pleas made by Counsel in last two paragraphs of the letter?
15. Further Mr Nalyal acknowledged paragraph 6 of the claimants’ claims seeking to injunct and restrain his clients and the First and Second Defendants from dealing in any manner with the new lease 12/0814/105 to have it registered into the Fourth Defendants’ names.
16. Despite that specific relief sought, the First, Second, Third and Fourth Defendants have gone ahead and registered the lease when the Claimants claims have not yet been heard and determined.
17. In the circumstances, I accept Mr Daniel’s submission that it is not necessary to file a Section 100 claim to challenge the Lease on the basis of fraud and/or mistake because it is so obvious.
18. In my view commonsense therefore should prevail and the named defendants are to agree to de-register the Lease within 7 days, failing which, the Claimant be at liberty to file a Section 100 claim.
Result
19. The Claimants are successful in their application but only in part. The orders sought in paragraph 6 (a) is granted.
20. The order sought in paragraph 6 (b) of the judgment is granted to be complied with within 7 days from the date of this judgment, by 19 June 2026, failing which the Claimants will file a Section 100 claim under the Land Leases Act.
21. The orders sought in paragraph 6 (c), (d) and (e) are declined as not appropriate at this stage.
22. The Claimants and applicants are entitled to their costs of the application on the standard basis as agreed or taxed.
DATED at Port Vila this 15th day of June 2026.
BY THE COURT
Hon. Justice Oliver A. Saksak