Molbarav v Loy
DECISION
1. Following an application filed on 13th February 2026 by the claimant seeking an order for consolidation of this case with CC 25/1595, the Court on 29th May 2026 issued the order for consolidation of the two cases.
2. Subsequently on 11 May May 2026 the claimant filed another application seeking leave to amend the Supreme Court Claim filed initially on 18th November 2025. The draft of the amended claim was filed along with the application on the same date.
3. Further, the claimant filed an application seeking summary judgment on 9th July 2026.
4. The applications have not yet been determined. On 29th May 2026 the Court determined only the application for consideration but directed Mr Botleng and Mr Ngwele to file responses and submissions in relation to the application for leave to amend the claims and adjourned its decision to be formulated on the papers.
5. Mr Kapalu filed some initial submissions on 4th February 2026 in support of the initial claims. On 3rd June 2026 he filed submissions in support of his application to amend the claim. And on 14th July 2026 he filed submissions in response to the defendant’s submissions filed on 25 June 2026.
6. In terms of the evidence, Mr Kapalu filed a sworn statement on 9th July 2026 in support of his application for summary judgment. Earlier on 20th March 2026 he filed a further sworn statement of Marie Molbarav in support of her claim in relation to the location of the Vanuatu Agriculture Rural Training Centre ( VARTC) within Lease No. 04/2641/019. He filed a sworn statement on 18th November 2025 in support of the initial claims.
7. For the Defendant, Mr Botleng field a Response to the claimant’s application to amend on 9th June 2026. He filed a statement by Kalmasei Kalsakau on 15th July 2026 and final submissions on 13th July 2026. He filed a Defence to the Amended claim on 10th June 2026.
8. Mr Ngwele filed a Defence and Counter-claim of the Third Defendant in CC 25/1595. There appears to be no written submissions from Mr Ngwele. And I have not seen any submissions from Mr Avock and the Attorney General in respect of the two applications by Mr Kapalu.
9. Mr Botleng opposes both the application for leave to amend and for summary judgment. He submits that:
a) The Court has no jurisdiction to deal with the merits of the claim as it raises the issue of customary boundaries, this being within the jurisdiction of the Island Court.
b) The claim is res judicata relying on the case of Molbarav v Republic (2025) VUCA 17 and that the claimant is estopped.
c) The claim is an abuse of process.
d) The claims of Joseph Livo and Marie Molbarav should be dismissed with costs of VT 80,000 against each of the claimants in the total sum of VT 160,000.
Discussion
10. First the question of boundaries and the jurisdiction of this Court. Ground A of the application relates to the exact location of the VARTC. Marie Molbarav asserts Lease 019 is located on Nambuluoaru Custom Land. Family Loy asserts that Lease 019 is located on Sarautu Custom Land within Part 479. From these assertions, boundary is clearly in issue and I accept Mr Botleng’s submission that this Court has no jurisdiction to hear the claimant’s claim.
11. A further point for consideration. In Land Appeal Case No. 2/86, the subject of the appeal was over disputed land called SARAUTU. On the attached map to the judgment as “ MM8” to Marie Molbarav’s statement of 18 November 2025 which is now coloured in orange and green with a number 479. The Orange part is numbered 1500 and 465. Of note is the fact that all that land coloured orange is called “ SARAOUTOU”. This is contrary to what the deponent is saying in her paragraph 9 of her statement that the land coloured in orange is Nambuluoaru custom land. The question I pose is whether Timothy Molbarav’s claim in the Island Court in 1986 to Nambuluoaru land or to Sarautu land? Secondly, if it was a claim to Nambuluoaru Land, why Nambuluoaru land is not mentioned or referred to in the 1986 judgment?
12. Next point, who coloured the map and when? For what purpose and before which Court of competent jurisdiction?
13. It appears to me from the evidence that the name or Land known as Nambuluoaru did not exist in 1986, only land called Saraoutou existed. If Nambuluoaru existed, Timothy Molbarav would have laid claim to it before the Island Court and the judgment in Land Appeal Case No. 2/86 would have mention of it. But it never mentioned it once.
14. The annexure “ MM2” to the deponent’s statement is a Minute of a Family Nakamal Meeting held on 13 September 2016 at Nambuluoaru village, South East Santo. It refers to the boundary of Nambuluoaru village. However in the map annexed as “ MM8” Nambuluoaru village is not shown, rather all that is shown is “ SARAOUTOU” which is that whole area covering 479,1500 and 465.
15. The annexure “ MM4” is the Ruling of the Island Court ( Land) dated 15 March 2019 by which the Island Court held there was no dispute over the ownership of Nambuluoaru land and that it was not a reviewable decision.
16. That ruling flies in the face of the Map annexed as “ MM5” which shows only “ SARAOUTOU”. There is no Nambuluoaru. On annexure “ MM6” is another map showing Nambuluoaru station, however this is not consistent with the map in Annexure “ MM5”.
17. Second, is this claim res judicata? I take note of the earlier case of Molbarav v Republic [2025] VUCA 17 where the claimants appealed and their appeal was dismissed. Despite them losing the appeal, they have filed this further claim. I accept the submission that the claimant is estopped from claiming. And they doing so amounts to an abuse of process.
18. Finally whether the applications by the claimant should be dismissed? I accept Mr Botleng’s submission that the application for leave to amend the claims, and for summary judgment should be dismissed with costs.
19. Accordingly the formal orders are:
a) The claimant’s application for leave to amend claims is refused and dismissal.
b) The claimant’s application for summary judgment is refused and dismissed
c) Civil Case 25/3528 is struck out in its entirety.
d) The claimant shall pay costs of the Defendant, Philemon Loy in the sum of VT 80,000 within 28 days from the date hereof.
20. Civil Case 25/1595 will continue to be managed for further hearing.
DATED at Port Vila this 23rd day of July 2026
BY THE COURT
Hon. Justice Oliver A Saksak