Tovor v Republic of Vanuatu

JUDGMENT OF THE COURT

Introduction

1.    This is an appeal from orders made by a judge of the Supreme Court. The parties to the appeal are Eric Enock representing Family Tovor as appellant and the Republic of Vanuatu as the first respondent and Chanel Warkon, Sei Yercet, Charlot Rorokos, Petro Rite, Manuel Warkon and Paulicap Lal as second respondents. 

2.    In the proceedings at first instance, the appellant sought an order under s.100 of the Land Leases Act [CAP.163] (the Act) that the rectification of Lease title number (04/0942/002) (002 lease) be declared null and void. Section 100 gives the Court the power to order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake. Although an allegation of fraud is contained in some of the documents, it is clear that the appellant’s case relies on the ground of mistake. The appellant sought an order cancelling the first’s respondent’s rectification of the registered lessor of the lease from the appellant to the second respondents. The appellant also sought an order that the first and second respondents be held severally liable to pay the appellant general damages in the amount of VT 15,000,000. Finally, the appellant sought an order that the second respondents be held liable to compensate the appellant for logging on the 002 lease carried out on several occasions between the years 2016, 2019, and 2022 in the sum of VT 3,000,000

3.    The primary judge dismissed the appellant’s claim and ordered that the appellant pay the first respondent’s costs. Her Honour made an order that the second respondents bear their own costs. Her Honor held that the appellant was not entitled to an order rectifying the register and that the appellant was not entitled to damages. 

The Key Facts

4.    On 4 November 1997, the Supenatavui Tano Council of Chiefs of Santo Island declared Family Tovor as the custom owners of Votalit custom land. On 15 June 2005 the Supenatavui Tano Island Land Tribunal endorsed the decision that was made by the Council of Chiefs in 1997.

5.    On 6 May 2009, the N’Kep North East Santo Area Land Tribunal (N’kep tribunal) declared the second respondents as the custom owners of Lohenioc custom land part title 699. On 3 November 2010 and following the declaration of the N’kep tribunal, the Director of Lands rectified the registered lessor of the 002 lease by removing the appellant’s name and replacing it with the second respondents’ names. The 002 lease area is an area of approximately 111ha. The Lohenioc custom land as declared includes approximately 73 ha of the lease area. 

6.    In a plea in its Defence to the Amended Statement of Claim which was not responsive to any particular allegation in the Amended Statement of Claim the first respondent alleged that on the 26th of May 2009 an appeal was lodged against the decision of the N’kep Tribunal to the Island Land Tribunal. That letter is referred to as, “Letter of Appeal dated 25 May 2009”. That letter (if it exists) was not produced to the Court. 

7.    On 9 July 2009, agricultural lease title number 04/0492/002 between Enock Tovor for Family Tovor (lessor) and Rolland Tovor (lessee) for 75 years commencing on 30 June 2008 over an area of 111ha 43a 94ca was registered.

8.    As we have said, on 3 November 2010, the Director of Lands rectified the registered lessor of the 002 lease by removing the appellant’s name and replacing it with the second respondents’ names. 

9.    On 16 August 2017, the larotkar Joint Nakamal declared the appellant as the custom owner of Votalit custom land, and he was issued a Certificate Recorded Interest in Land (colloquially known as a “green certificate”) by the Custom Land Management Office (“CLMO”) on the 21st of September 2017.

Relevant Legal Principles

10.    Section 100 of the Act is in the following terms:

(1)    Subject to subsection (2) the court may order rectification of the register by directing that any registration be cancelled or amended where it is so empowered by this Act or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.

(2)    The register shall not be rectified so as to affect the title of a proprietor who is in possession and acquired the interest for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default

11.    Section 9 of the Act is in the following terms:

(1)    The Director or any staff of the Department of Land are not liable for anything done or omitted to be done in good faith in exercising his or her functions or powers under this Act.

(2)    Subsection (1) does not apply, if it is if it is proven that the Director or any of his officers acted in bad faith or in dereliction of their duties or exercise of their powers under this Act.

12.    The primary judge also referred to section 24 of the Act. It is not necessary for us to set out the terms of this section in view of the conclusions we have reached. 

13.    There are two important legal principles to be noted at this stage.

14.    First, a decision of the Council of Chiefs does not give rise to a binding decision; the Island Court has the jurisdiction to make a binding decision. In Wells v Nalwang [2024] VUCA 48; (15 November 2024) this Court said the following (at [6]):

“The decision relied upon by the applicants (Appellants in these proceedings) is of a Supenatavuitano Land Tribunal, and that decision itself is based upon a hearing which took place before Supenatavuitano Council of Customary Chiefs of Sanma Province in 2001. There was no hearing before the Land Tribunal, nothing more than an endorsement of the decision of the Chiefs. This became necessary because of a decision in this court in Valele Family v Touru [2002] VUCA 3, in which it was said that a Council of Chiefs could not make a binding decision regarding ownership of custom land and that such authority or jurisdiction lay with the Island Court, and by extension, the land Tribunal.”

15.    At the risk of stating the obvious, that means in the circumstances of this case the decision made by the Council of Chiefs on the 4th of November 1997 did not give rise to a binding decision regarding ownership of custom land. The authority of jurisdiction to make such a binding decision lay with the Island Court and the Land Tribunals. 

16.    Secondly, s.100 of the Act has a causation requirement. In Roqara v Takau [2005] VUCA 5 (at page 9) this Court said the following:

“A Party seeking rectification under s.100 of the Land Leases Act, it is not sufficient to prove that a mistake occurred in the course of a transaction which ultimately concluded in registration of the interest which it is sought to have removed from the register.

In terms of s.100, the Court must be satisfied that “the registration has been obtained, made or omitted by fraud or mistake.”  The section imposes a causal requirement. The mistake must lead to the impugned registration being made. The onus is on the party seeking rectification not only to establish a mistake, but also to satisfy the court that it caused the registration to occur.”

17.    There is an important point to be made here. The mistake must be present at the time of registration in order to satisfy the causal requirement. Furthermore, the onus is the party seeking to establish the mistake to establish the causal requirement. On the other hand, in our view, it is not necessary for the mistake to have been known at the time registration occurred.

18.    No doubt acting on the parties’ identification of the relevant issues, the primary judge formulated the essential issue under section 100 of the Act as being whether the Director of Lands was aware of the appeal against the decision of the N’kep tribunal made on the 6th of May 2009 at the time when he registered the rectification of the registered lessor of the 002 lease from the appellant to the second respondents, that is to say, on 3 November 2010. With respect, and as we will explain, we do not consider that formulation of the key issue under s. 100 to be correct.

Analysis with respect to s.100 of the Act

19.    It will be seen from what we have said above, that three decisions are of possible relevance in determining whether the primary judge erred in refusing to make an order under section 100 of the Act. 

20.    The first decision to be considered is the decision made by the Supenatavui Tano Island Land Tribunal on the 15th of July 2005. The issue is whether the Island Land Tribunal made an effective decision regarding ownership of the Votalit custom land, although, as it happens, the precise relevance of this issue is somewhat unclear. The Court raised the issue during the course of argument on the appeal. At one point, counsel for the appellant said that he did not dispute that the decision of the N’kep tribunal on 6th May 2009 could form the basis of an order under s.100 but it did not in this case because the decision was not final and binding until the appeal was disposed of. At other stages in the argument, the appellant’s position was not clear. We will consider the effectiveness of the decision of the Island Land Tribunal on 15 June 2005.

21.    The Court was given only one document in relation to the decision made by the Island Land Tribunal on the 15th of June 2005. The document is dated the 25th of June 2005 and the subject of the document is the “Endorsement of Votalit Custom Land.” The document contains three dot points and is relevantly as follows:

“Following the declaration of Soupe Natavui Tano Council of Custom Chiefs of Sanma Province that declared already VOTALIT custom land on 4 November,1997, there was never any appeal against the decision under today [sic].
Soupe Natavui Tano Island Council of Custom Chief [sic] of Sanma Province that the custom land belongs to Mr Chief Emil Tovor who has true custom ownership on it
Soupe Natavui Tano Island Land Tribunal is now endorsing for Mr. Chief Emil Tovor, the custom owner of the land since1997 to date there is no dispute on it.”

22.    We have looked carefully at the procedural and substantive legal obligations on an Island Land Tribunal in considering and making a binding decision regarding ownership of custom land. Those obligations are set out in the Custom Land Tribunal Act [CAP. 271].

23.    With respect, we cannot think that, by reference to the record of decision before the Court, the Island Land Tribunal applied its mind to the decision it was required to make. The record suggests that the Island Land Tribunal relied on the decision of the Council of Chiefs and the fact that there was no appeal. In those circumstances and in light of the evidence before the Court, we consider that the Island Land Tribunal has not brought an independent mind to the decision it was required to make.

24.    We come now to the second decision, being the decision of the N’kep tribunal made on 6 May 2026. As we have said, the appellant accepted at one point that, but for the appeal, the decision of the N’kep tribunal on 6 May 2009 would form a proper basis for the rectification of the registered lessor of the 002 lease on 3 November 2010. In our view, the correct question in this case is not whether the Director of Lands or the staff of the Department of Land knew of the appeal before 3 November 2010, but whether there was in fact an appeal before that date.

25.    In fairness to the primary judge who appears to have proceeded on the basis that there was an appeal on 26 May 2026, the first respondent had pleaded a letter of appeal dated 25 May 2009, although (as we have said) that plea was not responsive to any of the pleas made by the appellant. The Court asked about the existence of the letter in the course of submissions on the appeal. Not only was the letter not produced, but the submissions made by counsel raised considerable doubt about the existence of such a letter. We are not satisfied that such a letter existed before 3 November 2010 when the registration was made.

26.        However, before expressing a final conclusion on this issue, we should mention two letters which were before the primary judge at the trial. Both letters are from the Customary Lands Management Office (CLMO) and they are dated 25 January 2017 and 30 August 2017 respectively. They advise of an appeal and that the ownership of the custom land Lohenioc is still under dispute. 

27.    The appellant relied on these letters at trial to establish that the Director of Lands knew of an appeal before 3 November 2010. Although both letters refer to an appeal, neither establishes that the Director knew of an appeal before 3 November 2010, as the primary judge correctly concluded. More to the point having regard to the approach we consider to be the correct one, neither establishes that there was an appeal prior to 3 November 2010.

28.    The third decision is that made on 16 August 2017 at a nakamal meeting held at larotkar village and was a declaration that the appellant is the custom owner of Votalit custom land. That declaration was made some seven years after the registration was effected. It cannot give rise to a mistake within the terms of s.100 of the Act.
29.    In our view, the appellant has not discharged the onus of establishing that the registration was caused by a mistake, and although for different reasons, we consider that the primary judge was correct in refusing to make an order under s.100 of the Act.

Other Claims

30.    It is not strictly necessary for us to consider the other claims made by the appellant in view of our conclusion that s.100 was not engaged. However, we note that the following observations of the primary judge as to the other claims.

31.    The primary judge said that even if s.100 had been engaged, she did not consider that s.100 gave rise to any cause of action sounding in damages against the Director of Lands or any of the officers of the Department of Lands.

32.    With respect to the appellant’s claim for damages in relation to logging activities on the 002 lease, the primary judge said that there was no evidence detailing what those logging activities were, nor of any loss or damage caused to the appellant by reason of the second respondent’s logging activities. 

33.    Finally, with respect to the appellant’s claim for general damages, the primary judge said that no cause of action sounding in damages had been pleaded.

Conclusion

34.    The appeal must be dismissed. The first respondent claims costs of VT 30,000. Charlot Rorokos was separately represented on the appeal. He claims costs of VT 50,000. The other second respondents claim costs of VT 50,0000. Orders for costs are made in those terms.

DATED AT Port Vila, this 14th day of August 2026
BY THE COURT

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Honourable Chief Justice Vincent Lunabek