Goiset v Sope

JUDGMENT OF THE COURT

Introduction
 
1.    On 1 April 2003, the applicant entered into a sub- lease agreement with Rakesa Sope, the proprietor of leasehold title 11/0B31/006 (“the 006 lease”) for a period of 10 years. There was a further 10 years right of renewal. The monthly rental payable was VT 30,000. The agreement also contained a clause that the applicant had the right of first refusal to purchase the 006 lease, should Mr Sope decide to sell it. Steps were taken to register a sub-lease, (including obtaining Ministerial consent), but not followed through. Shortly after the sub-lease was entered into, and some repairs were undertaken, the applicant started occupying the property. 

2.    The applicant alleges Mr Sope also agreed to sell the 006 lease to her in 2003, and as a result, she paid a deposit of VT 2 million towards the purchase price. There is however, no evidence of a written sale and purchase agreement at that time.

3.    Mr Sope passed away in 2004. It was not until 2012 that there was a grant of administration in     the deceased estate to Mr Sope’s wife, Edmon. The applicant did not become aware of the grant of administration until some years later. 

4.    In 2015, Edmon Sope and her daughter Patricia Sope agreed to sell the 006 lease to the applicant. On this occasion, there was a written sale and purchase agreement entered into by the parties on 5 June 2015. Relevant terms included:

a.    The purchase price payable was VT 6 million. 

b.    The agreement recorded that the applicant had paid VT 2 million to Rakesa Sope in 2003 as partial consideration for the purchase. 

c.    The balance of the purchase price was VT 4 million.

d.    Settlement was to take place within 120 days, subject to the consent of the Minister of Natural Resources to the transfer of the lease title.

e.    The vendor was to execute a transfer instrument and apply for the consent of the lessor for the transfer of the lease to the purchaser.

5.    Consent to the transfer of the 006 lease was obtained from the Minister of Lands on 28 March 2019. The applicant also paid the required stamp duty and the lease transfer fee of VT 200,000 in 2019. But she did not at any stage present a transfer of the 006 lease in registerable form to the Director of Lands. 

6.    Notwithstanding the 2015 agreement for sale and purchase, the first respondent subsequently agreed to sell the 006 lease to the second respondent, also pursuant to a written sale and purchase agreement.  In 2018, the applicant became aware of the first respondent’s intention to sell the lease to the second respondent. As a result, she lodged a caution on the title. 

7.    The second respondent completed the requirements for registration. He obtained Ministerial consent to the transfer and presented a transfer of the 006 lease in registerable form to the Director of Lands. Following removal of the caution, the second respondent was registered as the proprietor of the 006 lease on 12 May 2020. 

8.    The applicant then filed a claim seeking rectification of the 006 lease pursuant to s 100 of the Land Leases Act [CAP 163] (“the Act”). She contended that registration of the transfer to the second respondent has been obtained by mistake or fraud. The respondents filed defences to the claim.

9.    As the primary judge said, there were two issues to determine:

a.    The applicant’s standing to bring the claim under s 100 of the Act; and 

b.    Whether the Director of Lands had any legal obligation to register the 006 lease to the applicant, given the applicant had not complied with the legal requirements of the Act? 

10.    The primary judge dismissed the claim. [1] The primary judge held that the applicant lacked standing to bring the claim under s 100 of the Act, as she was neither the lessor nor the lessee. In making that finding, the primary judge applied this Court’s decision in Mataskelekele v Bakokoto [2020] VUCA 31. 

11.    The primary judge went on to consider whether the Director of Lands was under any legal obligation to register the 006 lease in the applicant’s favour.  The primary judge said that ss 5 and 76 of the Act require persons intending to obtain leases to do so in the prescribed form, which the second respondent did, by lodging the requisite forms for registration.

12.     However, while the applicant took some steps towards registration by paying fees and obtaining Ministerial consent, she did not follow through with an application in the prescribed form for the transfer of the 006 lease to her. The second respondent was eligible to be registered as the lessee as he complied with the requirements for registration of the transfer into his name. Therefore, the applicant did not prove the claim for fraud or mistake.

Application for enlargement of time to appeal

13.    The judgment was delivered on 27 June 2025. Therefore, an enlargement of time to appeal is needed, as the applicant did not take any steps to appeal until 18 March 2026. The applicant contends her lawyer at the time, Mr Yawha, did not tell her that judgment had been delivered.  She only became aware of the decision following receipt of an eviction letter dated 14 October 2025. 

14.    In Laho Limited v QBE Insurance Vanuatu Limited [2003] VUCA 26, this Court set out the factors to be taken into account in deciding whether or not to grant an enlargement of time to appeal. ^[2] These factors are:

1.    The length of the delay
2.    The reasons for the delay
3.    The chances of the succeeding if time for appealing is extended and
4.    The degree prejudice to the potential respondent if the application is granted

Length and reasons for the delay

15.    As we have said, the application for enlargement of time to appeal was filed on 18 March 2026. Nine months have elapsed between the delivery of the judgment and the filing of that application. The applicant’s position though is that she did not become aware of the judgment until October 2025. Even so, the applicant did not take any steps to appeal out of time for another five months.

16.    The reasons for the delay are not satisfactorily explained. The applicant lays the delay at the feet of her previous lawyer Mr Yawha. The applicant contends that despite repeated requests, Mr Yawha did not release the file to her new counsel, Mr Warsal. She asserts Mr Yawha also said he would file a sworn statement in support of the enlargement of time, but has never done so. This explanation is unconvincing. While the applicant may not have had the file held by her lawyer, it would have been a straightforward matter to seek permission to review the Supreme Court file and copy the relevant material. It could have been done immediately the applicant had decided to appeal out of time.

Prospects of success of the appeal

17.    The applicant seeks time be enlarged to appeal, on the basis the appeal has good prospects of success. The proposed grounds of appeal are:

a.    That the primary judge erred in law and fact in finding the applicant had no standing to bring the claim under s 100 of the Act. 

b.    That the primary judge erred in failing to find the applicant had an overriding interest under section 17 (g) of the Act.

c.    That the primary judge erred by wrongly applying the principles set out in Worwor v Pio [2011] VUCA 8. 

18.    We disregard the contention that the primary judge erred in failing to find the applicant had an overriding interest under section 17 (g) of the Act. The claim, as pleaded, was for rectification of the register under s 100 of the Act. An overring interest under section 17 (g) was not pleaded at all. It was inappropriate for that issue to be raised for the first time on appeal. When we raised this with Mr Warsal during the appeal hearing, that ground was withdrawn. 

19.    Rectification of the register may be ordered if a registration has been obtained by mistake or fraud. Section 100 of the Act provides: 

100. Rectification by the Court
 
(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.

20.    Relevantly, ss 5 and 76 of the Act set out how registration is effected, and provide: 

5. Manner of registration

 Registration shall be effected by an entry in the register in such form as the Director may from time to time direct and by the cancellation of the entry, if any, which it replaces.

76. Form of instruments

(1)    Every disposition of a registered interest shall be effected by an instrument in the prescribed form or in such other form as the Director may in any particular case approve.
    …..

Standing to bring the claim

21.    In reliance on this Court’s decision in Mataskelekele v Bakokoto [2020] VUCA 31, the primary judge held that because the applicant was neither a lessor nor lessee, she had no standing to bring the claim. However, Mataskelekele does not exhaustively state what constitutes standing to bring a claim. Further, we do not think it is of any assistance in determining the applicant’s standing to bring a claim under s 100 of the Act, as the interest asserted in that case was as a claimed custom owner. 

22.    Section 100 of the Act is silent as to who may apply for rectification of the lease title. The issue has been considered by the Court of Appeal in a number of cases, starting with Naflak Teufi Limited v Kalsakau [2005] VUCA 15.

23.    In Naflak Teufi v Kalsakau, this Court noted that s 100 is an empowering section for the Supreme Court, and that a person seeking to invoke s 100 must include a person who has an interest in the register entry sought to be rectified. This Court said: 

The particular aspect of section 100 that requires clarification in this appeal, is the question of who may make the application or who may invoke section 100 of the Land Leases Act?

The answer to the question is not immediately apparent as the section itself does not speak about Applicants or Claimants; it is purely an empowering section for the Supreme Court. That is not to say that no one may apply to invoke section 100 outside the Court itself.

We are satisfied on a consideration of the object and purpose of the section that, at the very least, a person seeking to invoke section 100 must include a person who has an interest in the register entry sought to be rectified and which it is claimed was registered through a mistake or fraud. Not only must there be proof of mistake or fraud but also that such mistake or fraud caused the entry to be registered. Furthermore, it has to be proved that the mistake or fraud was known to the registered proprietor of the interest sought to be challenged or was of such a nature and quality that it would have been obvious to the registered proprietor had he not shut his eyes to the obvious or, where the registered proprietor himself caused such omission, fraud or mistake or substantially contributed to it by his own act, neglect or default. We use the word 'interest' in the widest possible sense although accepting it may have in appropriate circumstances be distinguished from a mere busy body.

….

In light of the foregoing and our interpretation of section 100 of the Land Leases Act, we are satisfied that an Applicant for rectification of a register does not have to be able to show a right to be registered by way of substitution. In other words, a successful application pursuant to section 100 of the Land Leases Act can lead to rectification by way of cancellation or amendment of an entry in the register not necessarily in the registration of the person who initiates the challenge. The suggestion in our view that an Applicant for rectification must have a personal or legal right to be registered in place of the interest being challenged places an unwarranted gloss on the plain words of section 100.

24.    We consider the primary judge construed what constitutes a sufficient interest to invoke s 100 too narrowly, when the principles in Naflak Teufi v Kalsakau are applied. Notably, this Court said the word “interest” was to be used in the widest possible sense. The applicant did not have to be able to show a right to be registered by way of substitution, which was in effect the finding of the primary judge. We accept the applicant had an interest in the register entry sought to be rectified, and so had standing under s 100.  We think the interest arises from a combination of factors:

a.    The applicant had a right to exclusive possession of the property, as she had been     in occupation of the 006 lease for a number for years under the sublease. 

b.    More importantly, the first respondent had agreed to sell the 006 lease to the     applicant pursuant to the 2015 sale and purchase agreement. 

c.    The applicant had made a part payment of VT 2 million towards the purchase     price, as acknowledged in the 2015 agreement. 

d.    Some steps had been taken towards registration of the lease. Ministerial consent     to a transfer of the lease had been obtained, and the stamp duty and transfer fee     had been paid. 

25.    These factors may well mean that the applicant had an equitable interest in the land.

26.    Therefore, we consider the primary judge erred in finding the applicant lacked standing to bring a claim under s 100 of the Act. 

Did the primary judge err in finding there was no mistake or fraud? 

27.    The primary judge found that as the second respondent was the first in time to complete all the requirements to register the transfer, he was eligible to be registered as lessee. The primary judge said the second respondent became the registered proprietor of the 006 lease as he completed and lodged the requisite forms for registration of the transfer. The primary judge was correct to find that once the procedures under the Act have been complied with and the required fees paid, there could be no reason to withhold registration. 

28.    Conversely. the applicant did not at any stage present a transfer instrument in the prescribed form capable of being registered. As the primary judge said, the applicant admitted at trial she failed to lodge an application for registration at the Lands Department. That finding has not been challenged, and nor could it be, given the applicant’s acknowledgement in the Supreme Court that she did not present a transfer capable of registration. 

29.    A lease can only be transferred by an instrument in the prescribed form. A transfer is completed by registration of the transferee as proprietor of the lease and by filing the instrument. ^[3] The applicant took some steps towards registration, such as obtaining Ministerial consent and paying the required fees. However, she did not follow through with an application in the prescribed form for transfer of the 006 lease in her favour. 

30.    As the applicant did not present a transfer for registration in the prescribed form, there was no basis at all upon which she could be registered as the proprietor of the 006 lease. 

31.    The applicant contends that the registration of the second respondent as proprietor was obtained by fraud. The second respondent’s defence, as pleaded, was that he was a bona fide purchaser for value, so the lease could not be rectified. There was nothing before the primary judge to suggest the second respondent had notice of the applicant’s interest of the 006 lease or acted fraudulently. Thus, he had an indefeasible lease title by virtue of s 15 of the Act, and as this Court has said, the “register is everything”. ^[4] The applicant’s contention is without merit.

32.    The primary judge held the applicant had not proved her claim for fraud or mistake. In so finding, the primary judge reasoned the second respondent was the first in time to complete all the requirements to register the transfer in his favour, so was eligible to be registered a proprietor. We can see no error in that finding. Therefore, notwithstanding our view that the applicant had standing to seek rectification under s 100 of the Act, there is no prospect the appeal can succeed. 

33.    As we said to Mr Warsal, the applicant’s remedy is damages for breach of contract, as the first respondent may have breached the terms of the contract by not transferring the 006 lease to her. Breach of contract is a separate issue to a claim for rectification under s 100, so could not have been pleaded in the s 100 claim. Thus, we do not think issue estoppel or res judicata apply, to preclude the applicant brining a claim for breach of contract. ^[5]  That said, counsel will need to consider if there is any impediment to such a claim under the Limitation Act, and the applicant may need to proceed very promptly. 

Prejudice to other parties  

34.    There is no discernible prejudice to any other party if enlargement of time was to be granted. The affected party is the second respondent, who is protected by s 100 (2) of the Act. 

Conclusion

35.    The five month delay between the applicant becoming aware of the judgment and seeking enlargement of time has not been satisfactorily explained. The reasons for delay are not credible. The applicant should not have blamed her former lawyer’s failure to release the file. It was a straightforward matter of asking for permission to review the Supreme Court file. Further, for the reasons set out above, there is no prospect of the appeal succeeding. Accordingly, we refuse the application for enlargement of time. 

Disposition of the application

1.    The application for enlargement of time is refused. 

2.    The applicant is to pay each respondent’s costs of VT 50,000. 

DATED at Port Vila this 15th day of May 2026.
BY THE COURT 

Hon. Chief Justice Vincent Lunabek 

[1] Goiset v Sope [2025] VUSC 173.
[2] The factors in Laho have been recently applied by this Court. See Tevi v Bani [2026] VUCA 4 and Ruben v Nalwang [2026] VUCA 7.
[3] See s 60 (1) and (2) of the Act.
[4] Ratua Development Ltd v Ndui [2007] VUCA 23.
[5] See the recent consideration of these concepts by this Court in Lapenaml v David [2026] VUCA 14 and Achary v Obmudsman of the Republic of Vanuatu [2026] VUCA 2.