Atin v Customary Land Managment Office
Reasons for striking out the Constitutional Application case No. 718 of 2026 at the First Conference Hearing on 14 April 2026.
I. Introduction
1. This is a Constitutional application (“the application”) filed by Family Atin against the Republic of Vanuatu. The application was filed on 20 March 2026 with a sworn statement filed on the same date. The application and the sworn statement in support were served on the Attorney General on 1st April 2026. The application was made pursuant Articles 6 and 53 of the Constitution.
II. Relief sought
2. The Applicant seeks following orders pursuant to Articles 6 and 53 that:
a) The Supreme Court decision in Moltamaute -v- Taftumol [2020] VUSC 128, Land Appeal case 05 of 2025 (29 June 2020) has infringed the constitutional rights of the Applicant under Articles 73 and 74.
b) Consequently, the Certificate of recorded interest issued following the above-mentioned Supreme Court decision has also infringed the Constitutional rights of the applicant under Articles 73 and 74 of the Constitution.
c) Consequently, the dispute of the custom ownership of Belmol must be reheard.
d) Costs.
III. Grounds of the Application
3. The Applicant challenges the decision of the Supreme Court dated 29 June 2020 in Land Appeal case No. 05 of 2015 because the Supreme Court did not allow the applicant to be party to that case due to time limit.
4. The Applicant being removed from the case denies them their right to claim ownership of Belmol.
5. The issuance of the Certificate of recorded interest to Family Taftumol dated 20th June 2020 infringed their rights under Article 73 and 74 of the Constitution.
IV. First Conference hearing pursuant to Rules 2.7 and 2.8 of the Constitutional Procedure Rules 2003
6. A first conference hearing was held on Tuesday 14 April 2026 at 2:00 pm in the afternoon at Dumbea Court Room.
7. I noted that Mr. Yawha filed a response to the application on behalf of the sixth Defendant on 13th April 2026.
8. I decided not to hear Counsel representing the Republic of Vanuatu nor any other Counsel representing any other respondent apart from Counsel of the Applicant (Mrs. Tabisa Harrison).
9. I enquire into the application. I ask Mrs. Tabisa Harrison to explain to me whether this application has a Constitutional foundation. She referred to the application and sworn statement of Sylvain Atin filed in support. She said the Supreme Court decision in Moltamaute -v- Taftumol [2020] VUSC 128, Land Appeal case No. 05 of 2015 (29 June 2015) has infringed the Constitutional rights of the Applicant under Article 73 and 74. She said further that as a consequence of the said decision of the Supreme Court, the Certificate of recorded interest issued following the said decision, has also infringed the Constitutional rights of the applicants under Articles 73 and 74 of the Constitution.
10. I ask Mrs. Tabisa Harrison, how the decision of the Supreme Court of 29 June 2020 infringed the rights of the applicant? And on what basis? She did not answer the questions. But I understand from the grounds of the application and the sworn statement of Sylvain Atin filed in support that the Supreme Court decision in Land Appeal case 05 of 2015 did not allow the Applicant ‘s Family to be a party to the case due to time limit.
11. On 14 April 2026, I made an oral ruling that the Constitutional application No. 718 of 2026 is struck out as it was misconceived, inappropriate and an abuse of the process of the Court.
12. What follow are the written reasons of the oral decision, I made on 14 April 2026.
V. Consideration
13. I have read the application, the grounds of the application and the sworn statement filed in support. The parties to proceedings started by a Constitutional Application are: (a) the applicant; and (b) the Republic Vanuatu, as the Respondent (Rule 2.4 (1) (a) of the Constitutional Procedure Rules 2003).
14. I noted that the application referred to a decision of the Supreme Court in Land Appeal case 05 of 2015 made on 29 June 2020 which did not allow the applicant to be a party in that appeal because of limitation time. There was no copy of that decision which was attached to the sworn statement of the Applicant in support of the Application.
15. So, I searched and obtained a copy from the Pacific Island Legal Information Institute (Paclii).
16. Part of the judgement dealing with Family Atin, the Applicant, is reproduced below at pp 2-3: -
“FAMILY ATIN
8. The questions were raised following a decision of this Court in Land Appeal Case No 3 of 2011 on the 28th of October 2013. The appeal was against a previous decision of the Santo Malo Island Court but over the same Land as in this appeal. Saksak J. after hearing the appeal decided to allow the appeal and to refer the matter back for a re-hearing before a differently constituted Santo Malo Island Court and that there be no more new parties added but that the proceeding be restricted only to the parties as named in the Land Appeal Case 03 of 2011.
9. In responses to the questions raised, this Court finds that:
a. There were only five parties in the Land Appeal proceeding in 2011 namely Family Tura, Family Taftumol, Loyror Lin, Family Kaven and Family Uri Warawara & Family Vara Vara.
In Paragrph 8.1 of the Court’s decision in the Land Appeal Case 03 of 2011, the Court ordered that ...no new parties should be allowed to file their claims and that the re-hearing should strictly be between the four parties to the appeal...
b. The Appellants Family Atin have been given a fair opportunity over and over again to present their claim of customary interest in the previous Courts but have failed to do so.
c. The Grounds of Appeal upon which the Appellant Family Atin are relying fail to disclose or point to any errors in the Santo Malo Island Court’s judgment dated 12th June 2015.
d. Family Atin may only claim but under or through the interest of Family Tura
10.There was also a ruling made by the Supreme Court on the 15th of June 2015 on an application from Family Atin ’s legal counsel at that time Mr Britten Yoseph to withdraw Family Atin ’s Notice and Grounds of Appeal.
11.The Court finds that, in accordance with the customary practice of Santo, Family Atin may raise a claim of customary interest but only under or through Family Tura because their interest is only one of clan or tribe or what is referred to in the Santo language as ‘Vun’ but not directly relevant to customary ownership of customary land. In other words, unless the patrilineal blood lineage is completely extinguished, she or her descendants may raise a claim of a secondary interest not based on a personal and individual family capacity but under a tribe or “Vun”.
12. On these findings this Court had ruled and I again re confirm that Family Atin is not to be added as a separate party in this Appeal proceeding and their appeal is accordingly struck out”.
17. I noted that the decision of the Supreme Court that “Family Atin is not to be added as a separate party in this appeal proceeding and that their appeal is accordingly struck out” was made in line with the directions and orders made in the management of the appeal that no new party be added to the case at that stage of the proceeding. I also noted that the Court referred to the position of “Family Atin as having been given a fair opportunity over and over again to present their claim of customary interest in the previous courts but have failed to do so”.
18. The Court also referred to a ruling made by the Supreme Court on the 15th of June 2015 on an application from Family Atin’s legal counsel at that time Mr. Britten Yosef to withdraw Family Atin’s Notice of Appeal and Grounds of Appeal.
19. The said decision alleged to have affected the rights of Family Atin, was made by the Supreme Court on these findings.
20. It is now 6 years since the decision of the Supreme Court complained of, was made. There is no appeal made against that part of the decision since 29 June 2020. The delay of 6 years is too long a challenge. The finality in the judgements of the courts must be respected.
21. The question is how the decision of the Supreme Court of 29 June 2020 infringed the right of the Family Atin under the Constitution? Mrs. Tabisa Harrison failed to explain how the decision infringed the right of the Applicant under Articles 73 and 74 of the Constitution.
22. The decision of the Supreme Court of 29 June 2020 complained of, was made when the Supreme Court was acting with its ordinary functions under the Constitution and the Judicial Services and Courts Act [CAP 270]. If the effect of its decision was that Family Atin was prevented from participating in Land Appeal case 05 of 2015 (because of their own failure), such a decision could not constitute an infringement of the Constitutional rights of the Applicant. The effect of that decision would be one effected in accordance with the law (see Francois -v- Ozols [1998] VUCA 5; See also Kalnpel -v- The Government of the Republic of Vanuatu [2023] VUCA 10).
23. Mrs. Tabisa Harrison admitted in part that the Constitutional Application was filed because of the decision of the National Coordinator to provide a Certificate of Recorded Interest to the Family Taftumol over Tambotal, Belmol and Beleru custom lands based on the said Supreme Court decision.
VI. Decision
25. The Constitutional Application is inappropriate, an abuse of the process of the Court and it is clearly untenable.
26. It is worth that I repeat the observations of D’Imecourt CJ in President of the Republic of Vanuatu -v- The Attorney General [1992] Vanuatu Law Reports 575 at 591 cited by Your Humble Servant in President referral [1998] VUSC 18: -
“[G]reat caution will be exercised by the Supreme Court of Vanuatu to ensure that the safeguards guaranteed under the Constitution are not abused and that its value is not diminished by applications to the Supreme Court that are frivolous, vexations or abuse of the process of the Court” (See Kalnpel -v- The Government of the Republic of Vanuatu [2023] VUCA 10).
27. The Constitutional Application is struck out.
28. I made no order as to costs.
.
Dated at Port Vila, this 22 April 2026.
BY THE COURT
________________________
Hon. Chief Justice
Vincent Lunabel