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Valele Family v Touru: The Legality of Customary Land Disputes in Vanuatu (Case Note) [2006] JSPL 15; (2006) 10(2) Journal of South Pacific Law

CASE NOTE

VALELE FAMILY v. TOURU [2002] VUCA 3

The Legality of Customary Land Disputes in Vanuatu

DEBRA MACKENZIE

INTRODUCTION

This Court of Appeal decision appears to strike a serious blow to any notion of a dual legal system in Vanuatu, as far as the process of land disputes are concerned. The Court seemed to go out of its way to dispel the notion that land disputes might be settled outside of the formal Court system. In a particularly formalistic and technical decision, the Court of Appeal calls into question the legitimacy of traditional land dispute processes holding that the Courts are the only bodies that have “lawful jurisdiction and power to make a determination that binds everyone.”

THE CASE

This was an Appeal against the dismissal of an application for an interlocutory injunction. The injunctive relief sought pertained to profits arising from the use of custom land (hereinafter called the Natinae land). The Appellant had instituted proceedings in the Island Court in 1997 to dispute ownership of the Natinae land. Application was made to the Supreme Court for an account of moneys received by the Respondent on behalf of the custom owners, and for continuation of injunctive relief until the resolution of the ownership issue.

The primary Judge substantially upheld the contentions of the defendant (Respondent) that he was the custom owner of the Natinae land. The case was unusual in that the evidence put before the primary Judge by the defendant raised factual and legal arguments as to why the claim for an account of moneys received by him would inevitably fail. In the result, the primary Judge concluded that custom ownership had been determined, and on this basis, dismissed the Appellant’s claim for a continuation of injunctive relief.

THE ISSUE ON APPEAL

The primary issue on appeal was whether or not the custom ownership claims of the Appellants had been finally determined against them.

THE APPELLANTS’ (PLAINTIFFS’) ARGUMENT

In support of the claim for the injunction, the Appellants asserted before the primary Judge that they were the custom owners of the disputed Natinae land; that there was a long running dispute with the Respondent as to the custom ownership of the Natinae land; and since 1982 the Respondent had received the lease payments for the disputed land and had paid none of it to the Appellants. In 1997 the Appellants instituted proceedings in the Island Court to have the dispute over custom ownership of the Natinae land determined, and that claim remained unresolved. Lastly the Appellants contended that the Island Court was the only body with the jurisdiction and authority to make a binding determination of custom ownership, and until it did so the Natinae land remained land over which custom ownership was in dispute.

THE RESPONDENT’S (DEFENDANT’S) ARGUMENT