Poruja v Vanuapuru
JUDGMENT OF THE COURT
Introduction
1. Conflicting decisions concerning the ownership of the Vanuapaura custom land in the southern part of Santo have given rise to disputes and litigation extending over a long period.
2. The first of the decisions (the 2005 Decision) was made on 15th July 2005 by the Supe Natavui Tano Island Land Tribunal (the Supe Natavui Tano ILT). It declared the appellant, Family Poruja, to be the custom owners of the Vanuapaura custom land.
3. In the second of the decisions (the 2008 Decision), the Vaturani Joint Village Land Tribunal (the Vaturani JVLT) declared the first respondent (Family Vanuapuru) to be the custom owner of the same land.
4. Relying on the 2005 Decision, on 18 October 2018 the National Coordinator of the Custom Land Management Office (CLMO) issued a Certificate of Recorded Interest (the Green Certificate) to Family Poruja.
5. In the Judicial Review Decision which is the subject of this appeal (Vanuapuru v Republic of Vanuatu [2026] VUSC 17), the primary Judge found that the 2005 Decision was not a binding decision of custom ownership as it has not been made in the accordance with the Customary Land Tribunal Act [CAP 271] which was then in force. The Judge made an order quashing the Green Certificate which had been issued in reliance on the 2005 Decision. Finally, the Judge found that Family Vanuapuru was, by reason of the 2008 Decision, entitled to be issued a green certificate in respect of the Vanuapaura custom land and made an order that the National Coordinator of the CLMO issue that Certificate.
6. Family Poruja now appeal to this Court.
Ground 1: The Validity of the 2005 Decision
7. By Ground One in the Notice of Appeal, Family Poruja contend that the primary Judge had been wrong to find that the 2005 Decision had not been made in compliance with the CLT Act. Ultimately, counsel did not maintain that position but sought nevertheless to maintain the validity of the Decision. It is appropriate therefore to address the Ground in full. We will also address in relation to this Ground Family Poruja’s fourth Ground, namely, that the Judge had given insufficient weight to their evidence and submissions concerning delay and the merits of their defence.
The Customary Land Tribunal Act
8. At the time of 2005 Decision, the CLT Act provided for the determination of disputes concerning custom ownership. The primary judge set out in the judgment several of the relevant provisions and we refer to them without reciting them in these reasons.
9. Relevantly for the purpose of the present appeal, the CLT Act provided an ascending hierarchical structure for the determination of disputes concerning custom ownership. In the first instance, such disputes were to be resolved by village land tribunals, which could be single village or joint village tribunals (Part 2).
10. Persons dissatisfied with the decision of a village land tribunal could, depending on the circumstances, appeal to a custom sub-area land tribunal (Part 3) or a custom area land tribunal (Part 4). Finally, Part 5 of the CLT provided for island land tribunals to hear appeals from custom Act land tribunals, certain village land tribunals and certain custom sub-area land tribunals. The jurisdiction invested in an island land tribunal was to “determine the appeal” made to it (s.43 (1). If an island land tribunal upheld the appeal against a primary decision, and a person or group was not satisfied with that decision, that person or group could seek a rehearing of the original decision (s. 24 (1)). In that event, the island council of chiefs was required to establish another island land tribunal to rehear and determine the dispute, as if it was hearing and determining the dispute for the first time (s.24 (4)).
11. All the land tribunals established or recognised by the CLT Act were required to determine the rights of the parties to the dispute according to custom (s. 28 (1)).
The decision of the primary judge
12. Having set out the CLT Act provisions, the Judge noted that there was no provision empowering island land tribunals to hear and determine land disputes at first instance, at [30]. That is to say, the CLT Act vested island land tribunals with appellate jurisdiction only.
13. The Judge then found that there was no evidence that there had been a first instance decision of a village, custom area or custom sub-area land tribunal before the Supe Natavui Tano ILT made its determination in the 2005 Decision, at [31]. It could not therefore have been exercising the appellate jurisdiction vested in it when it made the 2005 Decision. Instead, it had purported to exercise a first instance jurisdiction which was not vested in it. The consequence was that the 2005 Decision was not authorised by the CLT Act and was not a binding determination of custom ownership, at [43].
14. The Judge also noted that the invalidity of the 2005 Decision had not gone unrecognised. As early as 9 November 2005, the Custom Land Tribunal office sent a letter to the Supe Natavui Tano Council of Chiefs informing it that the making of the 2005 Decision had been contrary to the CLT Act.
The appeal
15. At the hearing, counsel for Family Poruja did not contend that the Judge had been wrong in finding that the Supe Natavui Tano ILT had purported to exercise a first instance jurisdiction. He accepted, quite properly, that the ILT had appellate jurisdiction only.
16. Nevertheless, counsel maintained that the 2005 Decision should be recognised as valid. He referred to matters bearing on the quality and character of the 2005 Decision. These included that the Supe Natavui Tano ILT had conducted the hearing in a proper manner, that it had made a proper examination of the evidence, that its members had been independent and that, as individuals, they had had the appropriate standing to determine issues of custom ownership.
17. Counsel also emphasised other matters: that in 2005 it had been a member of Family Vanuapuru, Pastor Vanuapuru, who had insisted that the Supe Natavui Tano ILT make the determination of custom ownership and that the ILT had proceeded only because it had acceded to that insistence; that the 2005 Decision had been recognised by the issue of the Green Certificate; and that there had been no application to the Supreme Court under s.39 of the CLT Act in respect of the 2005 Decision.
18. The difficulty for Family Poruja is that even if all these matters be correct (and we express no conclusion about that), they do not assist them on this appeal. The lack of jurisdiction of the Supe Natavui Tano ILT to make the 2005 Decision could not be made good by the request, insistence or consent of Pastor Vanuapuru. Absent a specific provision, parties cannot by their consent bestow a jurisdiction on a statutory tribunal which that tribunal lacks. If the Supe Natavui Tano ILT lacked jurisdiction, then it lacked jurisdiction, irrespective of the beliefs of the parties about that jurisdiction.
19. Nor do the circumstances that the Supe Natavui Tano ILT was constituted by persons with the required standing or that it conducted the hearing in a proper manner overcome the lack of jurisdiction. The ILT may well have been acting conscientiously in the making of the 2005 Decision but that does not alter the fact that it had no jurisdiction to do what it did. The issue of the Green Certificate on the basis of a mistaken belief that the 2005 Decision was valid does not assist Family Poruja either. Its purpose is to assist in giving effect to determinations which are valid or deemed by statute to be valid.
20. Family Poruja is correct in submitting that there was no application to the Supreme Court under s. 39 of the CLT Act but, as the Judge found, Family Vanuapuru had taken numerous previous steps to have the invalidity of the 2005 Decision recognized.
21. It is convenient at this point to address the complaint in Ground Four that the Judge gave insufficient weight to Family Poruja’s evidence and submissions concerning “delay and overall merit of [their] Defence”.
22. Family Poruja did not identify any relevant evidence or submissions at trial said to have been given insufficient weight. Both the evidence and submissions at the hearing before the Judge were wholly in writing. Those documents were in the appeal books before this Court, making it relatively easy to see what Family Poruja had placed before the Judge.
23. Having reviewed that material, we can see that Family Poruja did not make at trial several of the submissions they now make. These include the submission to the effect that Family Vanuapuru had “slept on their rights” for 20 years, the submission concerning the interests of finality in litigation, the submission that Family Vanuapuru’s judicial review application amounted to a collateral attack on the decision of the Island Court (Land) on 29 June 2023 dismissing an application made by Family Vanuapuru under s.45 of the Custom Land Management Act (the CLM Act), and the submission that Family Vanuapuru’s judicial review application had been made outside the six month period fixed by r.17.5 of the Civil Rules for the bringing of such applications.
24. There can be no criticism of the Judge for not addressing matters not raised before her. Accordingly, the complaint that the Judge did not give sufficient weight to the evidence and submissions of Family Poruja concerning delay and overall merit lacks a proper foundation and must be dismissed.
25. In short, Grounds 1 and 4 fail.
Ground 2: The Quashing of the Green Certificate
26. By this ground, Family Poruja alleged error by the Judge in quashing the Green Certificate. We did not understand Family Poruja to present any submission on this ground which was additional to the submission on Grounds 1 and 4. As the Green Certificate was founded on the 2005 Decision, and Ground 1 is rejected, it follows that Ground 2 must also fail.
Ground 3: The issue of a Green Certificate to Family Vanuapuru.
27. Family Poruja submitted that the Judge had been wrong to order the National Coordinator of the CLMO to issue a green certificate to Family Vanuapuru in reliance on the 2008 Decision.
28. They raised two principal matters in support of this contention. First, they referred to matters said to undermine the validity of the 2008 Decision, including (they contended) a lack of notice to them of the hearing leading to that Decision and alleged shortcomings in the matters on which the Vaturani JVLT had relied.
29. The Judge did not address these matters in detail. It is evident that the Judge considered that s.58(1) of the CLM Act which came into force on 20 February 2014 made it unnecessary to do so.
30. Section 58 (1) provides (relevantly) that the decisions of joint village land tribunals made before the commencement of the CLM Act and which were not challenged within 12 months of the commencement of the CLM Act are deemed to create “a recorded interest in land in respect of the person or persons determined by the tribunal to be a custom owner.”
31. The term “recorded interest in land” is defined in s.2 of the CLM Act to mean:
recorded interest in land is a decision made by a customary institution as to who the custom owners of an area of land are which when recorded, will be used by the National Coordinator as a basis for:
(a) the identification of custom owners for the purposes of a negotiator’s certificate application under the Land Reform Act [CAP 123]; or
(b) the rectification of lessors in leases in existence prior to the commencement of this Act, and to avoid doubt a Supreme Court or Island Court decision made prior to the commencement of this Act is deemed to create a recorded interest in land.
32. As there had been no challenge to the 2008 Decision before 20 February 2015, s.58 (1) applied on its own terms to deem it be a determination of the custom owners which could be used by the National Coordinator.
33. If Family Poruja had wished to avoid s. 58 (1) of the CLM Act having this deeming effect, it had been incumbent on them to challenge the 2008 Decision in the manner contemplated by the CLM Act and to do so before 20 February 2015. They had not done so. The Judge was accordingly correct in concluding that it was unnecessary for her to address the criticisms which Family Poruja now made about the 2008 Decision.
34. Secondly, Family Poruja referred again to what they said was the delay of Family Vanuapuru in bringing the judicial review proceedings. We note again that Family Poruja sought to rely, inappropriately, on matters which they had not raised before the Judge. There can therefore be no error in the Judge not addressing those matters.
35. Ground 3 fails.
Conclusion
36. For the reasons set out above, we make the following orders:
(i) the appeal is dismissed;
(ii) the appellant is to pay the costs of the first and second respondents, fixed in each case in the sum of VT50,000.
DATED at Port Vila this 15th day of May, 2026.
BY THE COURT
Hon. Chief Justice Vincent Lunabek