Nov v Family Tangis

JUDGMENT OF THE COURT

Introduction 

1.    This is an appeal of the Supreme Court judgment dated 29 May 2026 in Land Appeal case No. 20/3348 SC/LNDA and Land Appeal case No. 21/274 SC/LNDA. The appeal in the Supreme Court was against the Santo/Malo Island Court’s (SMIC) judgment dated 12 November 2020 in Land Appeal case No. 9 of 1989 on custom land determined as L’Ramuir / Benuara. The Supreme Court judgment of 29 May 2026 was also made in respect to another custom land called Petere; but the Petere custom land was not the subject of the appeal before this Court.

2.    This appeal focused on the issue whether the Supreme Court exceeded its appellate jurisdiction conferred upon it under section 22 (3) of the Island Courts Act by substituting its own findings of customary ownership without first demonstrating any legal or factual error in the findings of the SMIC. 

3.    The appellant has filed an application for leave to appeal to set aside the Supreme Court judgment for jurisdictional error on 10 July 2026. For the reasons given, leave is refused.

Background

4.    On 28 February 1992, an original claim over custom land Terrapol / L’Ramuir, was filed with the SMIC registry with a description of that land boundary and a map of the land claimed in the original claim. The original claimant of that Terrapol / L’Ramuir was Andrew Johnny, the third respondent in this Court. The claim was publicised by the SMIC on 8 August 1997.

5.    The public notice of the claim stated:

“PUBLIC NOTICE

DATE :8/8/97
Publik notis ia hemi stap go long publik long Shark-bay area:
Santo Malo Island Kot l receivim wan kleim blong kraon we name blong hem: TERRAPOL L’RAMUIR.

Man we l kleim kraon ia hemi ANDREW JOHNNY blong Shark-bay..

Spos any wan we l think se hemi kat kastom raet tu long kraon ia hemi kat 30 days blong kam lodgem kleim blong hem long Santo Malo Island Kot.

FILING FEE VT 30,000
30 DAYS HEM] START TODAY

THANK YU TUMAS
(signed)

Island Court Clerk
David Navian"

6.    The notice was also announced on Radio Vanuatu. The boundary of the land claimed was described as:

BOUNDRIES

Long North Namalaius tree wa i stanap colosap long road hernia hill blong Manioc Village i stat. 

Boundry blqng Kerr mo Sasari i stat long stampa blong Namele go kasern South Point. 

Long Eastern boundry solwoter. 

Long East ground ia i blong Kerr, Faletakari, mo Facio i stat long one Nabangura tree long solwota i kam West i kasem fence blong Nitchiku underneath long hill. I stat lo hill i go North long one wood we Laska i planem, name blong wood ia, Lemon Carm, i stat long Leman Carrn i go kasem Nangai tree hernia i confirm North West Boundries.

7.    The map of the area claimed, which was lodged by the original claimant, Andrew Johnny, depicted these areas claimed (A copy of that map was reproduced in the Supreme Court judgment under appeal at paragraph 7).

8.    On 12 November 2020, the SMIC determined the custom owners of L’Ramuir / Benuara and Petere custom land. L’Ramuir / Benuara land was declared to the descendants of Morri being, Timothy Nov, Andrew Johnny and Family Sar, the appellant, third respondent and seventh respondent. Petere custom land was declared to Har Harison and his descendants.

9.    Family Tangis, Family Toa and Morris Moldova (First and Second respondents) appealed this decision of the SMIC of 12 November 2020 to the Supreme Court. The grounds of appeal against the decision of the SMIC were, among other matters, that the SMIC fell into error:

(a)    By deciding not to include all land in the original boundary published by the Island Court in its declaration;

(b)    By deciding not to include custom land marks as boundaries but using Wong Sze Sing fence instead;

(c)    By deciding that the first and second respondents (Timothy Nov and Andrew Johnny in the Supreme Court judgment and appellant and third respondent in this appeal) own the full land when each of them claimed different boundaries within the larger boundary that was publicised.

10.    The Supreme Court in its judgment of 29 May 2026, was satisfied that the claim for the land in dispute was publicised or advertised. A site visit was made to the land in accordance with the Island Court Civil Procedure Rules No. 28 of 2005. That land was “TERRAPOL L’RAMUIR” and boundary of that land was as shown in the map which was filed with the land claim.

11.    Dealing with the main grounds of complaint on the appeal in the Supreme Court, the Court stated:

“(a). Benuara land

24. There is no reasoning or finding as to why the Court diverted from the publicized land and proceeded to hear and determine a dispute relating to I'Ramuir / Benuara land when the land that was publicized was Terrapol I'Ramuir land. Publicity of the claim is mandatory to ensure adequate notice is given to members of the public in the area where the disputed land is located Such notice is to enable people with interests in the land to lodge their counter claims.

25. “Benuara” was not part of the publicized claim as indicated in the publicity notice at [5] above. We are satisfied that “Benuara” land was therefore not publicized in breach rule 1 (7) of the Island Court Civil Procedure Rules. By proceeding to deal with a claim for "Benuara" land without publicity or advertisement, persons who may also have claims of custom ownership over this land were not informed and were therefore prejudiced.”

12.    The Court referred to the decision of the Supreme Court in Kaltapau v Kolou [2016] VUSC 56, which emphasized the importance of the Island Court confining itself to the publicized land.

13.    The Court, dealing with the submissions of the appellants that the Court fell into error by not deciding custom ownership of the full area publicized by the Island Court and instead limiting itself to an area marked by Wong Sze Sing’s fence (the area determined to be L’Ramuir / Benuara Custom Land), stated:

“29. We are of the view that Wong Sze Sing’s fence is not a custom boundary or custom land identity or custom land mark therefore it cannot be used to benchmark or reference a custom boundary. Similarly we are of the view that the Court in its findings at paragraph 3 referred to at [10] above fell into error by finding that these lands were outside the boundary of I’Ramuir / Benuara land when it failed to make any determination as to the boundary that was publicized but instead restricted itself to a boundary referenced with Wong Sze Sing’s fence which is not a custom land boundary mark for the purposes of disputes over custom ownership of land. “

Submissions 

14.    Mr Mesao for the appellant submitted that the Supreme Court committed a jurisdictional error and procedural unfairness in setting aside the Island Court’s findings without identifying any legal or factual error in those findings and without carrying out the appellate review required under section 22(3) of the Island Courts Act. As a result, the appellant was denied procedural fairness because the appeal was not determined according to the limits of the Supreme Court’s appellate jurisdiction. Mr Mesao finally submitted that this appeal falls within the limited supervisory jurisdiction of the Court of Appeal as recognised in Matarave v Talivo [2010] VUCA 3, Sovrinmal v Nakelon [2022] VUCA 25 and Kalsakau v Manarewo [2024] VUCA 51. He therefore seeks leave be granted and the appeal be allowed.

15.    Mr Fiuka for the first respondent submitted that the Court of Appeal has no jurisdiction to deal with this appeal because there is no serious breach of the law by the Supreme Court under section 22(4) of the Island Courts Act which provides that the judgment of the Supreme Court in land appeal matters is final. He also submitted that the Supreme Court made a lawful decision and in doing so, did not exceed its jurisdiction under the Island Courts Act. He seeks that leave be refused and the appeal be dismissed.

16.    Mr Tevi for the second respondent submitted, among other matters, that the SMIC did not discuss the full and correct boundary of the disputed land as it should have, and so it is correct that the Supreme Court directed the Island Court to return and determine the correct land boundary of the original land claim. The Supreme Court did not exceed its jurisdiction. The Supreme Court had, for the purpose of this appeal, made its determination according to the rule of law and it found that the basis on which the SMIC had applied the rules of land tenure on the disputed land is unclear and it should have identified the proper land tenure rules of the area in dispute. He seeks that leave be refused and the appeal be dismissed. 

17.    Mrs Nari for the third respondent submitted that the Supreme Court has powers to make orders that the Island Court could make in relation to the land matters pursuant to s 23 (a) of the Island Courts Act. She submitted that the Supreme Court’s findings and orders that were made on 29 May 2026 will assist the parties for re-hearing. There were procedural errors such as the correct boundary of the land claimed by the original claimant (third respondent) and advertised but not discussed in the hearing by the SMIC. 

18.    She further said that the land claimed was Terrapol L’Ramuir not Benuara custom land. The complaint by the appellant is without a basis.

19.    She finally submitted that the Supreme Court set out the findings of the SMIC in relation to the correct boundary in paragraphs 18-29 of the judgement dated 29 May 2026. The custom of the disputed land is set out in paragraph 9 of the judgment. The complaint in the land appeal matter was in respect to custom applied in the land matter. That issue of the relevant custom applicable is of prime importance in accordance with Article 74 of the Constitution. She relies on Kaltapau v Kolou [2016] VUSC 56. She submits the court should refuse leave and dismiss the appeal.

20.    Mr Willie for the seventh respondent submitted in essence that the central answer to the appeal is that the Supreme Court did not merely substitute its own view of customary evidence. The Supreme Court identified a fundamental procedural defect: the land advertised on the original claim of Andrew Johnny was Terrapol L’Ramuir, but the Island Court proceeded to hear and declare ownership of L’Ramuir / Benuara land within a materially different and smaller boundary.

21.    He said that that mismatch deprived persons claiming interests in Benuara, or in land falling outside or within the altered boundary, of proper notice and an opportunity to lodge claim. The resulting declaration could not safely determine customary ownership against the world at large. A re-hearing after proper identification and advertisement of the land was therefore necessary. 

22.    He submitted that section 22 (4) of the Island Court’s Act makes a Supreme Court land appeal decision final. The Court of Appeal’s exceptional supervisory jurisdiction is therefore narrow and is engaged only where the Supreme Court did not validly exercise the appellate jurisdiction entrusted to it, including a qualifying jurisdictional error or complete lack of procedural fairness.

23.    He further submitted that the present appeal does not meet the threshold. The Supreme Court performed its appellate task: it examined the filed claim, the public notice, identified the sketch and the Island Court’s declaration; identified the mandatory procedural requirements; explained the mismatch, found prejudice to absent potential claimants and ordered the statutory remedy of re-hearing.

24.    He finally submitted that the appellant’s argument that the Supreme Court was required first to identify error before making its decision is contradicted by the judgment itself. Paragraphs 24 to 29 identied the precise errors and explained why the island court declaration could not stand. He sought leave be refused and the appeal be dismissed.

Discussion

25.    There is no right of appeal to the Court of Appeal from the Supreme Court’s decision in a land appeal case: subs. 22 (4) of the Island Court’s Act.

26.    In this appeal, the appellant filed an application for leave to appeal against the judgment of the Supreme Court dated 29 May 2026 and to set it aside.

27.    In Sovrinmal -v- Nalekon [2022] VUCA 25, this Court referring to Matarave -v Talivo [2010] VUCA 3 stated: 

“In Matarave v Talivo, this Court held that the Supreme Court would not be validly exercising its statutory function (to hear an appeal as to ownership of land) if the court was not validly constituted or if the court properly constituted purported to decide custom ownership of land which was not subject to the dispute submitted to the Island Court. We would add that this Court may also interfere with a Supreme Court decision as to ownership of land in other instances of jurisdictional error including where there was such a complete lack of procedural fairness shown in the circumstances of the case that it cannot be said there has been a valid hearing of the appeal by the Supreme Court. This must be assessed on a case-by case basis, but it can be expected that such cases will be rare.”

28.    Mr. Mesao submitted that the Supreme Court committed a jurisdictional error and procedural unfairness because the Supreme Court set aside the SMIC’s findings without identifying any legal or factual error in those findings and without carrying out the appellate review required under Section 22 (3) of the Island Courts Act. As a result, the appellant was denied procedural fairness because the appeal was not determined according to the limits of the Supreme Court’s appellate jurisdiction under Section 22(3) of the Island Courts Act.

29.    With respect, we cannot agree with the above submission. Under Section 22(1) (a) of the Island Courts Act, the Supreme Court is the Court hearing the appeal in all matters concerning disputes as to ownership of land. Under section 22(3), the Court hearing the appeal shall consider the Island Court records (if any) relevant to the decision, receive such evidence (if any) and make such inquiries (if any) as it thinks fit. Section 22(3) of the Island Courts Act is not a limited jurisdiction. It has to be interpreted and applied widely.

30.    In addition, in such cases when the Supreme Court exercises its powers under Section 22 of the Island Courts Act, it has powers to make any such orders as the Island Court could have made or passed in such cause or matter: Section 23(a).

31.    There are many cases where Section 22 (3) was applied widely by the Supreme Court. Two cases illustrate the point:

a)    In Lale v Silas [1986] VUSC 8, an appeal against the judgment of the Island Court of Malekula, the Learned Chief Justice Frederick Cooke who heard the appeal with two advisers stated, among other matters, the following:

 “I allowed the First Appellant (Simon Lale) to call five witnesses in an attempt to  
  substantiate his appeal, mainly to clarify points overlooked by the Island Court.”

b)    In Toto v Pasvu [1987] VUSC 12, an appeal against the decision of the Santo Island Court, the learned Chief Justice Frederick Cooke who heard the Land Appeal with advisers, stated the following: 

“On reading through the judgment of the island Court I regret I am unable to agree with their reasoning particularly their rejection of the sale of the Land in question which took place some eighty years ago. They stated in their judgment: -

“The Court has studied all the papers by both sides during the Court sitting concerning sales of land and records of meetings held some time ago. The Court decides that it will not take note of all these papers because they were from times before independence and also as it did not take into account what happened during the time of politic. The Court decides that it won’t take too much notice of the record of the land sales because the people who sold the land were not the true owners and some of the papers are false’. 
I fail to appreciate their reasoning that because sales took place before Independence, they are not acceptable. How possibly could they seriously have considered who sold the land and who occupied it for the past eighty years. I, therefore consider they failed in their duty and accordingly I quash their decision.”

32.    In this appeal, the Appellant failed to show that the Supreme Court had erred in law let alone made a jurisdictional error in relation to the decision it made on 29 May 2026. The Supreme Court did identify the errors: The unadvised inclusion of Benuara, the unexplained alteration and reduction of the advertised boundary, and reliance on non-customary fence without determining the advertised customary boundary were material because they affected notice, participation and identity of the land being adjudicated.

33.    The following judgments are in support of the Supreme Court decision of 29 May 2026: -

In Kaltapau v Kolou [2016] VUCA 56, this Court emphasized the importance of the Island Court confining itself to the publicized land in the following terms: 

“11. We agree and cannot over-emphasize the importance of an Island Court confining itself strictly to the advertised claim and not entertaining land areas outside the advertised area. This is because the public advertisement of a land ownership claim calls for competing claims to the advertised land, and, if the advertised land area is later allowed to be expanded to include other lands and/or questions, it is very likely that the original claimant will have no interest in the expanded areas but, even more disconcerting, is that other persons with genuine competing claims to the expanded land areas, might well be denied the opportunity to lodge their competing claims because of a lack of any advertisement of the expanded areas calling for competing claims.”

And in Raupepe v Raupepe [2000] VUCA 6 the Court of Appeal in setting aside a transfer of lease stated the principle in the following terns:

“It is a fundamental procedural requirement in Court proceedings concerning the ownership of land that all people who claim, or are likely to claim, an interest in the land be before the Court. There were two reasons for that. The first, is the natural justice reason to ensure that those whose interest might be affected have the opportunity to be heard at the trial and to put whatever information they want to put in support of their position or against somebody else’s position. The second reason is that the judgment of the Court, because it determines for the world at large who owns the land, must be one that binds all those people who might have an interest in the land. A judgment would not bind those people unless they are before the Court as parties.”

34.    Mr. Mesao conceded during the hearing of this appeal that the Supreme Court can rehear the Land Appeal case and make its decision pursuant to Sections 22 (3) and 23 (a) of the Island Courts Act.

35.    We are satisfied that the Supreme Court had properly exercised its jurisdiction under section 22 (3) and 23 (a) of the Island Courts Act and it did not exceed its jurisdiction in its judgment of 29 May 2026.

36.    For the reasons given, the grounds of appeal fail and the application for leave to set aside the Supreme Court decision is declined.

Result

37.    The application for leave to set aside the Supreme Court Judgment of 29 May 2026 in Land Appeal case No. 21/274 SC/LNDA is declined.

38.    The Appellant is to pay the First, Second, Third and Seventh Respondents’ costs of the appeal of VT30,000 each.

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

BY THE COURT

____________________________________
Honourable Chief Justice Vincent Lunabek