Namuri v Customary Land Managment Office

Court Court of Appeal

Case type Civil Appeal

Case number 1650 of 2026

Hearing date 05 Aug 2026

Decision date 14 Aug 2026

Official PDF document

Judge(s) Hon. Chief Justice Vincent Lunabek; Hon. Justice Ronald Young; Hon. Justice Anthony Besanko; Hon. Justice Dudley Aru; Hon. Justice Viran Molisa Mackenzie; Hon. Justice Maree Mackenzie; Hon. Justice Josaia Naigulevu

Appellant(s) Samuel Namuri, Toy Kaiasi, Pascal Kapere, Jacques Nauka, Johanin Nauka

Defendant(s) Customary Land Management Office - First Respondent; Jonah Kapus - Second Respondent

Counsel Mr E Molbaleh for the Appellant; Mr L Huri for the First Respondent; Mr D Yawha for the Second Respondent

JUDGMENT OF THE COURT

Introduction

1. The applicants Samuel Namuri, Toy Kaiasi, Pascal Kapere, Jacques Nauka and Johanin Nauka seek to appeal the Supreme Court decision as to Rule 17.8 matters dated 24 April 2026 striking out their judicial review claim. In that claim, the applicants had sought review of the issuance of a Certificate of Recorded Interest in Land (colloquially known as a ‘green certificate’) by the National Coordinator of the first respondent Customary Land Management Office (‘CLMO’) to the second respondent Jonah Kapus.

2. The applicants require extension of time to appeal as their appeal papers were filed 11 days outside the thirty days appeal period prescribed by rule 20 of the Court of Appeal Rules 1973 (the ‘Rules’). The respondents opposed the application for extension of time.

3. Rule 9 of the Rules empowers this Court to enlarge the time prescribed by the Rules for doing anything to which the Rules apply. This Court outlined the matters to be taken into account in determining whether an extension of time should be granted to file an appeal in Laho Ltd v QBE Insurance (Vanuatu) Ltd [2003] VUCA 26 and Sangary v Vemol [2025] VUCA 3. The factors to be considered include:

a. The length of the delay;
b. The reasons for the delay;
c. The chances of the appeal being successful if time were extended; and
d. The degree of prejudice to the potential respondent if the application were granted as well as the degree of prejudice to the potential appellants if the application were refused.

4. The Court decided to defer a ruling on the application until after hearing the substantive appeal as an assessment of the merits will dictate whether the application for extension of time to appeal should be granted.

Background

5. On 9 July 2024, the National Coordinator of the CLMO issued a green certificate to the second respondent in respect of Kasipimene custom land on Tanna island pursuant to a decision dated 15 July 1986 by the South Area Council of Chiefs of Tanna island (the ‘1986 council of chiefs’ decision’). The green certificate relates solely to the 1986 council of chiefs decision.

6. On 26 November 2024, the applicants filed their claim for judicial review. On 15 May 2025, they filed the amended judicial review claim by which they sought a quashing order of the claimed fraudulent green certificate, an order that all parties reconvene a nakamal meeting pursuant to the Custom Land Management Act No. 33 of 2013 (the ‘CLM Act’), costs and any other order deemed fit. The grounds relied on include that the applicants are claimants for the custom ownership of Kasipimene custom land, that the second respondent edited the custom ownership declaration in his own favour and that the custom ownership of Kasipimene custom land on Tanna island is still under dispute before Ianarow Nakamal.

7. The first respondent did not file a defence, abiding the orders of the Court.

8. The second respondent filed a defence on 21 March 2025 and sworn statement in support of the grounds of his defence on 26 March 2025.

The Supreme Court decision

9. The primary Judge held a conference to consider the matters set out in Rule 17.8 of the Civil Procedure Rules (‘CPR’) to ensure that this was an appropriate matter for the Supreme Court. Pursuant to rule 17.8(3) of the CPR, the Court will not hear the claim unless satisfied as to all 4 matters set out in that rule:

a. The claimant has an arguable case; and
b. The claimant is directly affected by the decision; and
c. There has been no undue delay in making the claim; and
d. There is no other remedy that resolves the matter fully and directly.

10. The primary Judge’s focus was on the 1986 council of chiefs’ decision rather than on the decision sought to be reviewed – the issuance of the 9 July 2024 green certificate.

11. The primary Judge was satisfied that the applicants had an arguable case as the 1986 council of chiefs’ decision did not state that Kapus was the custom landowner of Kasipimene land.

12. The primary Judge was also satisfied that the applicants were directly affected by the 1986 decision, and that there was no other remedy to resolve the matter fully and directly.

13. As for the remaining rule 17.8(3) matter, the primary Judge considered that the 1986 decision was made 38 years before the filing of the claim hence there had been undue delay in making the claim. She therefore declined to hear the claim and struck it out.

The Grounds of Appeal

14. The applicants set out their grounds of appeal (if extension of time to appeal was granted) in an Amended Notice and Grounds of Appeal filed on 26 June 2026. We summarise the grounds of appeal as follows:

a) That the primary Judge erred by striking out the judicial review claim on the basis of undue delay. The decision for which judicial review was sought is the CLMO’s issuance of the green certificate dated 9 July 2024. The claim was filed shortly after the green certificate was issued. However, the Judge took into account the 38-year period between the 1986 council of chiefs’ decision and the filing of the claim as the delay period; and

b) That the primary Judge erred in failing to take into account that the South Area Council of Chiefs of Tanna island had no jurisdiction to determine the custom ownership of land thus its 15 July 1986 decision is not binding in law. Therefore, there was no legal basis for the CLMO to issue a green certificate in respect of that 15 July 1986 decision and furthermore, to the second respondent who was not even declared as the custom owner of the subject custom land.

15. The respondents submitted that the applicants should not be permitted to raise for the first time on appeal the South Area Council of Chiefs’ lack of jurisdiction and that there was no legal basis for the 9 July 2024 green certificate when neither of these matters was pleaded in the judicial review claim.

16. Mr Yawha also submitted that there were other decisions as to the custom ownership of the subject land which were made after the 1986 decision which would also be relevant to the determination of the judicial review claim. It is difficult to see what relevance any custom ownership decisions after the 1986 council of chiefs’ decision would have to the issuance of the 9 July 2024 green certificate.

Consideration

17. The issue raised by the first ground of appeal (as summarised above) is whether the delay in filing proceedings, if any, is from the 1986 council of chiefs’ decision or from the CLMO’s decision on 9 July 2024 to issue a green certificate.

18. Rules 17.4(1) and (2), and 17.5(1), of the CPR, provide as follows:

17.4 (1) A person claiming judicial review may file a claim claiming:

(a) a declaration about an enactment; or
(b) a mandatory order, a prohibiting order or a quashing order about a decision.

(2) The claim must name as defendant:

(c) for a declaration, the Attorney General; and
(d) for an order about a decision, the person who made or should have made the decision.
...
17.5 (1) The claim must be made within 6 months of the enactment or the decision.

[emphasis added]

19. “Decision” is defined in rule 17.2 of the CPR to mean, relevantly, “a decision... in relation to the exercise of a public function...”

20. The CLMO National Coordinator is responsible pursuant to subs. 19(3) of the CLM Act to issue a certificate as to a recorded interest in land. Therefore, the issuance of such certificate is a decision in relation to the exercise of a public function. ^[1]

21. A person may claim judicial review by filing a claim claiming (a) a declaration about an enactment; or (b) a mandatory order, a prohibiting order or a quashing order about a decision: rule 17.4(1) of the CPR.

22. The claim must name as defendant for an order about a decision, the person who made that decision: rule 17.4(2)(b) of the CPR.

23. Applying rule 17.4(1) of the CPR to the present case, the applicants sought a quashing order of the CLMO National Coordinator’s decision to issue a green certificate dated 9 July 2024 to the second respondent, in accordance with rule 17.4(1)(b) of the CPR.

24. The applicants named the CLMO as the first defendant (in this Court, the first respondent) in accordance with rule 17.4(2)(b) of the CPR.

25. It is plain, therefore, that the decision under challenge in the applicants’ claim for judicial review is the CLMO National Coordinator’s decision to issue a green certificate dated 9 July 2024 to the second respondent.

26. Rule 17.8(3)(c) of the CPR provides that the judge will not hear the claim unless he or she is satisfied that, “there has been no undue delay in making the claim”.

27. The primary Judge considered that the 38-year period between the 1986 council of chiefs’ decision and the filing of the claim constituted an undue delay. However, the primary Judge erred in doing so as the 1986 council of chiefs’ decision was not the decision under challenge in the applicants’ claim; the decision under challenge was the CLMO’s issuance of the green certificate on 9 July 2024.

28. Rule 17.5 of the CPR is relevant. It provides that a judicial review claim must be made within 6 months of the enactment or decision.

29. In the present matter, the applicants sought judicial review of the CLMO decision of 9 July 2024, therefore they had to file their claim for judicial review within 6 months after that: rules 17.4(1) and 17.5(1) of the CPR.

30. The applicants filed their claim on 26 November 2024. This was four months after the CLMO decision of 9 July 2024, which was the decision for which judicial review was sought, therefore the applicants complied with rule 17.5(1) of the CPR.

31. It follows that there was no undue delay on the part of the applicants in making the claim.

32. For the foregoing reasons, the first ground of appeal is made out and the appeal will be allowed on this ground. Therefore, we do not need to consider the remaining grounds of appeal.

33. In conclusion, the applicants’ explanation for their 11-day delay to file the appeal papers has not been contested. That is, that they needed more time to work for money to pay for the appeal fees and associated fees and costs. The respondents accepted that they would not suffer prejudice if the application for extension of time to appeal was granted. On the other hand, the applicants would suffer significant prejudice if the application were refused given the custom ownership of land involved. Given our assessment of the merits of the appeal, the application for extension of time to appeal must be granted.

34. It is however pertinent to observe that it is well settled that a council of chiefs has no jurisdiction to determine the custom ownership of land. Therefore a council of chiefs cannot make a decision that is binding in law as to the ownership of custom land: Valele Family v Touru [2002] VUCA 3, Wells v Nalwang [2024] VUCA 48 at [6] and Tokataake v Family Kalsakau [2024] VUCA 16 at [11]. ^[2]

35. We suggest that the parties consider the legal position as to jurisdiction to determine custom ownership of land when the claim is remitted back to the Supreme Court.

Result and Decision

36. The application for extension of time to appeal is granted.

37. The appeal is allowed.

38. The decision as to rule 17.8 matters dated 24 April 2026 is set aside.

39. The matter is remitted to the Supreme Court for hearing of the claim (as amended).

40. Costs must follow the event. The respondents are to pay the applicants’ costs of the appeal, with the first respondent to pay VT37,500 and the second respondent to pay VT37,500, within 28 days.

DATED at Port Vila, this 14th day of August 2026

BY THE COURT

____________________________________
Honourable Chief Justice Vincent Lunabek

^[1] Section 19 of the CLM Act provides as follows:

19. (1) Where the custom owners are determined by a nakamal, the custom land officer must ensure that the written record of the determination is filed with the office of the National Coordinator.
(2) When a determination is filed with the office of the National Coordinator, the written record of the custom owner determination and the area of land that is owned by the group will become a recorded interest in land that may not be challenged except on the grounds of improper process or fraud.
(3) The National Coordinator is responsible for maintaining a list of all of the decisions that have become recorded interests in land and where requested by a custom owner will provide a certification of the names of the custom owners and the representatives of the custom owners.

^[2]This Court stated as follows in Tokataake v Family Kalsakau [2024] VUCA 16 at [11]:

11. Following Independence, only a competent Court set up by law could determine custom ownership (see Valele Family v Touru [2002] VUCA 3), or following the enactment of the Customary Land Tribunal Act No. 7 of 2001, a customary land tribunal. Since the Sixth Amendment of the Constitution which came into force on 21 January 2014, disputes as to land ownership and any disputes over custom land must be resolved by customary institutions and procedures pursuant to the Custom Land Management Act No. 33 of 2013: see the judgment of this Court delivered in this session in Tura v Family Taftumol, Civil Appeal Case No. 1481 of 2023.