Peau v Jack

JUDGMENT

Introduction

1.    This is a trespass claim, filed on 19 February 2025, by Joslyn Peau (“the claimant”). The claim is supported with a sworn statement of the claimant.

2.    No defence was filed by George Jack (“the defendant”).

3.    The matter was listed for first conference on 23 June 2025, and directions were made for the defendant to file their response and defense. The following table shows the timeline given to the defendant to file his defence:

Facts

4.    On 11 December 2023, the claimant bought the land lease title 11/O124/057 (“057 title”), located at Ohlen area, Port Vila. She has never been able to enjoy it as the defendant is residing on it. The claimant has told the defendant on many occasions that she is the owner of 057 title and for him to move out, but he has refused. On 14 October 2025, the claimant sought the legal assistance of the Public Solicitor and a letter was issued against the defendant. Despite the letter, the defendant has continued to live on 057 title.

5.    Upon purchasing 057 title, the claimant had planned to develop the land in the following manner:

a.    Build a shop, and
b.    Build a set of 3 low-cost rent rooms for VT10 – 15,000 per month

She was not able to fulfil these plans as the defendant continued to live on the property.

Issue

6.    The issue to be determined is whether there is trespass by the defendant.

The Law

7.    Section 17(g) of the Land Leases Act (CAP 163) provides,

17.    Unless the contrary is expressed in the register, the proprietor of a registered lease shall hold such lease subject to such of the following overriding liabilities, rights and interests as may, for the time being, subsist and affect the same, without their being noted on the register – 
(a)    Rights of way, rights of water, easements and profits subsisting at the time of first registration of that lease under this Act;
(b)    Natural rights of light, air, water and support;
(c)    Rights to sites of trigonometrical stations and navigational aids conferred by any law;
(d)    Rights of compulsory acquisition, resumption, entry, search and user conferred by any law;
(e)    The interest of a tenant in possession under a sublease for a term not more than 3 years or under a periodic tenancy;
(f)    Any charge for unpaid rates or other moneys, which, without the condition of registration under this Act, are expressly declared by any law to give rise to a charge on land;
(g)    The rights of a person in actual occupation of land save where enquiry is made of such person and the rights are not disclosed; and
(h)    The rights and powers relating to electric supply lines, telegraph and telephone lines or poles, pipelines, aqueducts, canals, weirs, dams, roads and ancillary works conferred by any law;

Provided that the Director may direct registration of any of the liabilities rights and interests herein before defined in such manner as he may think fit.

Discussion

8.    The claimant relies on the lease title 11/O124/057 (“057 title”), located at Ohlen area, Port Vila. The claimant relied on the cases of Combera v. Sope ^[1] and Lava v. Saksak ^[2]. In Combera, the Court of Appeal upheld the Supreme Court decision and affirmed that the appellants did not have legal rights, overriding interests or entitlement to compensation regarding the land at Ohlen Freshwind. In the Supreme Court  the trial judge held that after 1981, the land at Ohlen Freshwind is public land, following the Land Reform (Declaration of Public Land) Order No. 26 of 1981, as it was within the Port Vila urban boundary. Paragraph 8 states,

As from 26th January 1981 the owners of Ohlen Freshwind land have been the Government of Vanuatu. Any former custom landowner, if they had any rights, would only have rights with regard to compensation. As a result of the 1992 “deal” done between representatives of the affected people and the Government the question of compensation has long been settled and dealt with as well. There has been no legal challenge to the 1992 deal and subsequent agreement. The Claimants cannot have been given permission to enter onto or settle on Ohlen Freshwind land by the first defendant. He ceased to have any authority over the land, if ever he had any in the first place, from 26th January 1981…Between 1982 and 1992 the Urban Land Corporation was the only body capable in law of controlling what happened on the land…The end result is the Claimants have no authority to be on the land, they are squatters.

9.    In Combera, the Court recognized the registered lessee to be Freshwind Limited,

5.    On 12 January 1995 lease title 11/0133/008 (“lease 008”) was registered for 50 years between the Minister of Lands (lessor) and Freshwind Limited (lessee).

a.    Lease 008 covers land area of Ohlen Freshwind which was formerly the New Hebrides Registry of Land Titles registration No. 40 and it is an urban land pursuant to the Land Reform (Declaration of Public Land) Order No. 26 of 1981.
b.    On 28 April 1997, lease 008 was surrendered for the purpose of subdivision.
c.    Following the surrender of lease 008, derivative titles were created.

[My emphasis]

10.    The Court of Appeal also addressed the appellants claim under Section 17(g) of the Land Leases Act. They referred to William v. William ^[4], where the Court enumerated seven important matters arising from that particular section. The Court held that the fifth and seventh matters were relevant in that case, where it states in paragraph 29, 
 
29.    For the present purposes it is only necessary to refer to the fifth and seventh matters which read:

Fifthly, s.17(g) operates in respect of “rights”, that is rights recognized by the law of Vanuatu. A person in actual occupation who is a trespasser will have no “rights” which are protected by the provision. A right may arise under custom law, or it might be a right that derives from and through the proprietor of a registered lease or the predecessor in title of that lease. The nature of the rights asserted in this case by the appellants are rights which say derive from Ezra William when he was the registered proprietor of the lease.

Seventhly, the evident intent of s.17(g) is to protect on the one hand a person who is in actual occupation of land pursuant to rights recognized by law, and on the other hand to provide a mechanism for those acquiring leases to protect themselves by making appropriate enquiry and inspection before acquisition. If a person in actual occupation is found on the land, the would-be purchaser, by making enquiry, can have the rights of that person identified so that the consideration for their acquisition can be adjusted, or the proposed acquisition can be abandoned. Alternatively, if the person found in actual occupation does not disclose a right that justifies his or her actual occupation, the would-be purchaser will obtain good title against that person, and will be entitled after registration to recover possession.

The Court held that Section 17(g) protects the rights of parties in actual occupation, and in William, the Court affirmed that Section 17(g) only protects rights recognized by law. As the appellants in Combera are considered as squatters, they cannot claim an overriding interest against a registered lessee.

11.    In Lava v. Saksak ^[5], the court held that the claimant had a legal title and the defendant was a trespasser for over 4 years on the land. In paragraph 6, it states,

The claimant purchased the said land in 2021, the defendant was already living on the land. Trespass is an unlawful act committed against the person or someone’s property; especially wrongful entryon another’s real property. In the case of Ifira Land Corporation Limited v. Pastor Jacob Charley & Ors ^[6], the court held that the claimant had evidence of legal entitlement to the land and that they are the registered lessee of the leasehold title.

12.    In the current case, the claimant purchased 057 title from Freshwind Limited in 2023. The defendant cannot claim that they were given permission to live on the land by Mr Barak Sope (who was behind the mass settlement in Ohlen Freshwind from 1982 – 1992). Mr Sope did not have any authority to do that at the time. Even if he did, in Combera, that authority ceased from 26 January 1981. The defendants cannot claim custom land ownership as compensation has been made between the representatives of the affected people and the government. Given this, the defendant is a trespasser on 057 title.

13.    As a trespasser, the defendant does not have any rights in actual occupation, under Section 17(g).
 
Result

14.    Judgment is given in favor of the claimant.

15.    The defendant and his family members must vacate lease title 11/O124/057, within 30 days.

16.    The defendant must pay costs of VT50,000 to the claimant.

17.    The matter is listed for enforcement conference on 30th November 2026, at 8:30am. 

18.    Damages will be assessed on 18th February 2027, at 8:30am. 

Dated in Port Vila on this 20th day of October, 2026

BY THE COURT

………………………………
Justice B. Kanas Joshua

[1] [2015] VUSC 114.
[2] [2025] VUSC 227.
[3] Combera v. Sope [2015] VUSC 114, at para [8].
[4] [2004] VUCA 16.
[5] [2025] VUSC 227.
[6] Civil Case No. 23/2193 SC/CIVL (18 October 2024).