Family Touh v Kohia

 JUDGMENT OF THE COURT

Introduction

1.    This appeal involves a challenge to the authority of a Customary Land Management officer            (CLMO), who directed the Southwest Area Land Tribunal (SWALT) not to hear a dispute regarding the Ikiti land on Tanna Island. The SWALT did not proceed to hear the land claim.

2.    The respondents in this appeal filed judicial review proceedings alleging the CLMO acted beyond his statutory powers in directing the SWALT not to hear the land claim. 

3.    The two orders for relief sought were: -

“13. A declaratory order declaring the decision of the first defendant/ respondent to stop the CLMO Mr. Wilson Nasawa from convening the Southwest Area Tribunal from hearing Ikiti land is of no effect it must be quashed. 

14. A mandatory order requiring the CLMO Mr. Wilson Nasawa to recall immediately another conference for the parties to appear before Southwest Area Tribunal to hear their claim on Ikiti land.”

4.    The judge in the Supreme Court was satisfied the CLMO had acted beyond his powers and quashed the direction. The judge directed the CLMO to immediately convene the SWALT to hear the dispute with respect to custom ownership of the Ikiti land.

5.    With respect to the question of any existing decisions as to custom ownership the judge found at para 38:

“For the foregoing reasons I find that there is not an existing joint nakamal decision made by consensus dated 20 January 2025. There are simply minutes of a meeting held on 20 January 2025 attended by a number of chiefs who agree with what another chief president stated, but this was not a validly constituted joint Nakamura meeting nor was any decision made by the members of those nakamals at that meeting, by consensus or otherwise. Accordingly this aspect of the case fails.”

6.    And arising from that conclusion the judge ordered at para 48:

“The first defendant is to file and serve submissions by 4:00 PM on 13 April 2026 to show cause why an Order should not be made quashing the Certificate of Recorded Interest in land dated 3 March 2026 issued to Family Touh”

Out of time Application

7.    This appeal was filed out of time. An application to enlarge time was filed 2 months and 26 days after the time for the filing of the appeal had expired. The appellant was not a party to the judicial review proceedings at the time of the hearing in the Supreme Court and so in addition to seeking leave to appeal out of time they asked to be heard on this appeal. To give judgment on these issues some background to the claim is required as well as consideration of the decision of the judge.

8.    The judicial review judgment was given on 12 March 2026. The appellants applied to join these proceedings on the 14th of April 2026.  The appellant's reasons for the application were that the judge in the judicial review proceedings had answered an issue (see above para 5 and 6) which affected the applicant's interests in the Ikiti land and, they said, was not part of the judicial review relief sought.

9.    The appellants filed their application to be joined as a party 32 days after the judgment was released. The application to be joined as party was granted on 1June 2026. The application to enlarge time in this appeal was filed on 9 June.

10.    In those circumstances it is clear the appellant filed its challenge to the Supreme Court decision in a timely way after they were given leave to join the proceedings. We therefore grant leave to appeal out of time. Given that leave the appellant was entitled to fully participate in the appeal.

Submissions and decision on Para 47(a) order.

11.    The appellant in written submissions challenged the judge's conclusion that the CLMO had no lawful authority to direct the SWALT not to hear the land claim. However during submissions to this Court the appellant accepted the CLMO had no such lawful authority and therefore there could be no challenge to this aspect of the judge's decision.

12.    The first, second and third respondents did not challenge the judge's decision with respect to her finding on this aspect of the judicial review claim.

13.    The 4th and 5th respondents noted they had accepted the decision of the CLMO was ultra vires and of no effect in the Supreme Court. They maintained that position in this court.

14.    We agree with the approach of the parties. The CLMO had no legislative authority to direct the SWALT not to hear the Ikiti land case and so his direction was ultra vires. 

15.    In those circumstances the appeal is dismissed as it affects the declaration in paragraph 47(a) of the Supreme Court judgment as follows; 

“Declaration that the first defendant's decision in the acting national coordinator of the Custom Land Management office (CLMO) Mr. Boe’s e-mail dated 18 June 2025 to Tafea Provincial Customary land officer Mr. Wilson Nasawa stating that the CLMO cannot hold another nakamal meeting to determine the ownership of Ikiti land is ultra vires of no effect and quashed.”

Submissions and Decision on paragraph 47(b) order

16.    The Judge said at paragraph 47(b):

 “Mandatory order that the CLMO immediately reconvene the South West Area Land Tribunal of Tanna Island to hear the dispute as to the custom ownership of Ikiti custom land “

17.    This order relates to the second part of the judge's conclusions in this case (see para 5 above) and the second ground of appeal by the appellant. To understand this ground of appeal some background is necessary.

18.    There is, and has been, a dispute as to the custom ownership of the Ikiti land on Tanna. The disputing parties are the appellant and the first, second and third respondents.

19.    The appellant's claim that there was a decision by a joint nakamal which determined the custom ownership of the land as belonging to Family Nawarak and Family Iamak in 2008 and 2015. The appellants said the nakamal decision is unchallenged and had been filed with the Customary Land Management Office pursuant to s19 and s27 of the Custom Land Management Act.

20.    However an issue relating to the customary land ownership of the Ikiti land came before the SWALT for hearing on 13 June 2025 arising from Family Kohia’s claim to the land. This is when the CLMO intervened into the process. The CLMO concluded that the custom ownership of the land had already been decided in a decision by the nakamal of 2015 and an earlier decision of 2008 and therefore the SWALT should not hear any further application relating to the custom ownership of the land. It was then that the CLMO gave the ultra vires instruction to the SWALT not to proceed with any hearing and the subsequent judicial review claim was filed.

21.    In the decision in the Supreme Court in addition to ruling on the ultra vires question, the judge went on to consider whether the 2008 and 2015 decisions of the nakamal were properly made. (see para 5 above).  Consideration of this issue by the judge will likely have arisen because one of the issues identified by the parties at trial was; 

“Issue 2 Whether or not there is an existing joint nakamal decision determining ownership of Ikiti land”

22.    After examining the evidence of the 2008 and 2015 decisions with respect to custom ownership of the land the judge concluded that neither decision was a lawful decision on the custom ownership of the Ikiti land (see para 5 above). And the Judge said at para 41, after concluding that there was no final nakamal decision recording a custom interest in land:

 “Accordingly I consider making an order to quash the green certificate however before doing so give the first defendant opportunity to be heard as to that. He is to file and serve submissions by 4:00 PM on 13 April 2026 to show cause why an Order should not be made quashing that green certificate.”

23.    The Supreme Court has not held a hearing to consider quashing the green certificate given the appeal filed in this case.

24.    The appellant's case is that the judicial review proceedings were narrow in scope. The proceedings sought orders that the CLMO be prevented from ordering the SWALT not to hear the Ikiti land case. The orders sought in the judicial review pleadings did not seek to set aside previous decisions about the customary ownership of the land nor seek the quashing of the green certificate with respect to the land. 
 
25.    Further the mandatory order which required the SWALT to consider the custom ownership of the land followed the Judge’s conclusion that there were no lawful existing declarations of ownership when she considered the nakamal process. In the absence of any lawful declaration as to custom ownership the Judge found SWALT would need to make a declaration and, as a result of her decision declaring the CLMO’s decision ultra vires, was free to do so. The lawfulness of that mandatory order depends on whether her consideration of the nakamal decisions declaring customary ownership was a valid exercise of her jurisdiction in the judicial review proceedings.

26.    It seems the judge embarked on her analysis of the previous decisions as to the ownership of the land because she was invited to do so by the parties when they identified Issue 2 at trial           ( see  21 above).This involved considering whether there was a previous valid declaration of land ownership which is what the judge undertook.

27.    We are satisfied the judge was wrong to undertake this analysis. This was a judicial review claim. The only decisions required were a finding of the lawfulness or otherwise of the CLMO’s direction to SWALT and whether the court should require the SWALT to convene a hearing. The judge’s decision to embark on a hearing about the nakamal decisions was outside the orders sought by the claimant. The claimants did not plead any challenge to the nakamal decision. It would not have been clear therefore that all the relevant facts were available and all the relevant parties were present and able to participate to ensure a fully informed decision.

28.    Most importantly, the party who had been declared the customary owner in 2008 and 2015 (the appellant) was not a party to nor present at the Supreme Court hearing.  By itself that would have likely been fatal to any conclusion about the validity of the 2008 and 2015 decisions.

Summary and Orders

29.     We are satisfied the judge was correct to find that the CLMO had no lawful authority to direct the SWALT not to hear the land claim. That part of the appeal is dismissed.

30.     We are satisfied that the judge exceeded what she was asked to do by the orders sought in the statement of claim. We are satisfied that the judge's decision to embark on an analysis of the validity of the decisions in 2008 and 2015 was wrong in a judicial review proceeding.

31.    We also set aside order 47(b) directing the CLMO to immediately reconvene a hearing before SWALT. It will be for SWALT to decide how and when the hearings related to the Ikiti land are managed.

32.    We also set aside the order in paragraph 48 of the decision of 12 March 2026 given that no further hearing should be undertaken by the Supreme Court relating to the question of quashing the certificate of recorded interest.

Costs

33.    Finally as to costs we set aside the costs order in the Supreme Court. The 1st and 2nd defendants in the Supreme Court, the 4th and 5th respondents in this appeal, agreed in the Supreme Court that the decision of the CLMO was without jurisdiction as the claimants alleged. The costs order therefore could only have related to issue 2 identified in the Supreme Court judgment. We have found the judge should not have embarked on this analysis. In those circumstances the costs order on the Supreme Court could not have been justified.

34.    As to costs in this Court the 4th and 5th respondents expressed concern in their written submissions that the judge had exceeded what she was required to decide in this judicial review. This was our conclusion. The 4th and 5th respondents accepted the direction by the CLMO was ultra vires. In those circumstances, no order for costs should be made against them in this court.

35.    As to the first, second and third respondents they accepted the error made by the CLMO although some of the respondents only did so at the appeal hearing. They supported the judge’s decision to assess the validity of the decisions of 2008 and 2015 which we have found was wrong. Their identification of the 2nd issue at trial by the 1st, 2nd and 3rd respondents likely led the court into embarking on an analysis she should not have undertaken. In those circumstances a costs award in favour of the appellant and against the 1st 2nd and 3rd respondents is justified. There will be a cost order of Vt90,000 in favour of the appellants. The 1st 2nd and 3rd respondents will each pay VT30,000. 

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

___________________________________
Honourable Chief Justice Vincent Lunabek