Tavui v Jivi

Striking out of the Interlocutory Application and the Supreme Court claim filed 
19 June 2026

1.    This is an Interlocutory Application filed on 19 June 2026 (“The Application”). The Application seeks the following orders:

a.    Pending the determination of this proceeding, the respondents, whether by themselves, their family members, agents, servants, representatives or any other persons acting on their behalf, be restrained from entering onto, occupying, cultivating, gardening, clearing, constructing buildings upon, or otherwise interfering with Viramaso Custom Land situated at Big Bay, Santo Island.

b.    Pending the determination of this proceeding, the Respondents be restrained from erecting any further houses, structures, fences, gardens or developments on Viramaso Custom Land.

c.    Pending the determination of this proceeding, the Respondents be restrained from encouraging, permitting or allowing any third party to enter, occupy or develop Viramaso Custom Land.

2.    The grounds of the Application are, among other matters, that the applicants are the long-standing occupants and possessors of Viramaso custom land and their ancestors occupied, cultivated and maintained the land for many years. The Applicants occupy and exercise possession and control over the land.

3.    A Supreme Court claim was also filed on 19 June 2026. The Claimants claim among other matters for:

a.    A declaration that the claimants are entitled to possession and occupation of Viramaso custom land and permanent injunction against the First and Second Respondents.

4.    A sworn statement of urgency was filed by counsel in support of the Application.

5.    Following sworn statements were filed in support of the Application and the claim on 19 June 2026:

    Sworn statement of Tety Tavui;
    Sworn statement of Pattison Tavui;

6.    An undertaking as to damages was filed by the Applicants on 19 June 2026.

7.    The Application was listed on 16 July 2026 for hearing.

8.    On 16 July 2026, Counsel for the applicants informed the Court that the Application, the Supreme Court claim and the sworn statement statements filed in support were not yet served on the first and second respondents.

9.    The Court was informed that the applicants and the respondents live in Big Bay, Santo, which is far away from Luganville. Counsel sought to have more time.

10.   I informed Counsel for the applicants that I have read the Interlocutory Application and the Supreme Court claim, and the sworn statements filed in support. I informed Mr. Willie that I sense that the 
applicants/claimants claim they have customary possessory rights over the said custom land.

11.    I enquire whether there was a dispute over the custom land in question. Counsel informed the Court there was no dispute over the ownership of the custom land.

12.    Then, I questioned Mr. Willie, Counsel for the Applicants, as to how custom possessory rights over custom land could be ascertained without first ascertaining, assessing and declaring custom ownership rights over the said custom land? The next question is whether the Supreme Court has jurisdiction to decide the customary possessory rights over a custom land?

13.    I pointed to Counsel that, that is the jurisdiction of the customary institutions pursuant to Article 78 of the Constitution, not the Supreme Court, to ascertain, assess and declare ownership of custom land, possessory rights over that custom land and occupational rights over such a custom land and the extent of such customary rights.

14.    I ask Counsel to discuss the matter with his clients before the next conference date.

15.    Today 28 July 2026, before the hearing of the Application started, Mr. Willie informed the Court that after discussions with his clients, they wish to amend their claim by claiming for trespass and damages for trespass.

16.    I informed Mr. Willie that the way the claim was pleaded, the amendment will transform the initial claim into a new claim beyond the very purpose of any amendments. It will not be possible to do so in this case with the current pleadings. The only way to do this is to strike out the Application and the Supreme Court claim so that a proper claim for trespass/damage for trespass can be filed with a related interlocutory application.

17.    Mr. Willie seemed to agree with the suggestions.

18.    The Interlocutory Application has to be struck out because the Interlocutory orders sought are not going to be substantiated or supported by the Supreme Court claim filed on 19 June 2026; and also, the Supreme Court claim for customary possessory rights cannot be claimed by the Applicants before the Applicants are declared custom owners of the said land and their custom possessory rights, too, have to be determined by the custom institutions, not the Supreme Court.

19.    The Interlocutory Applications and the Supreme Court claim filed on 19 June 2026 are both struck out accordingly.  

20.    There are no orders as to costs. The Applicants are to bear their own costs.

Dated at Port Vila, this 28th July 2026.

BY THE COURT

Hon. Chief Justice Vincent Lunabek