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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT PORT VILA
(Civil Jurisdiction)
Civil Case No. 117 of 2000
BETWEEN:
TOARA KARIE
(Plaintiff)
AND:
WILLIE JIMMY
(Defendant)
JUDGMENT
The plaintiff and defendant are owners of neighbouring land. The boundary fence was originally erected in the wrong place. That has now been put right. The plaintiff says the defendant’s cattle and fowl strayed on occasions onto his land and damaged and destroyed crops and trees. The plaintiff shot one of the defendant’s cattle. He says the next morning the defendant and some of his men came to his house and assaulted him.
The plaintiff’s claim can reasonably be divided into four parts.
1. Trespass for the defendant’s occupation of the plaintiffs’ land due to the fence being erected in the wrong place.
2. Trespass for the trees planted by the defendant on the encroached land.
3. Trespass by the defendants stock and fowl onto the plaintiffs land, causing damage to crops.
4. The assault and battery upon the plaintiff.
I heard evidence from the plaintiff, his wife Anne Karie and his workman Willie Songi George. For the defence I heard evidence from Robert Taliban, James Rotia and the defendant.
I accept the evidence of the plaintiff and his wife. They gave their evidence in a calm and measured way, taking care to consider each question and answer it. There was no exaggeration or embellishment in their answers. I also accept the evidence of Willie George. It was given in a straightforward and open way.
There is a little dispute in fact between the plaintiff’s case and that of the defendant. I will deal in turn later with the defence witnesses.
1. The Trespass.
It is not disputed that the defendant’s boundary fence was originally erected on the plaintiff’s land. This has now been rectified. It was an error in the original survey. A similar error occurred on the other side of the plaintiff’s land, that adjoining Mr. Simbolo’s. That was rectified after an agreed resurvey without the need for legal action. The plaintiff gave up a slice of what he originally thought was his land.
The error was known to the defendant from, at the very latest by July 1999. He has had the report and plans of the government surveyor and plenty of opportunity to obtain his own survey. He steadfastly refused to put the matter right until after commencement of these proceedings. Indeed, ever then there were delays and adjournments before this was done. The encroached area is about 6,800 square metres. I award nominal damages of 20,000 vatu for the trespass up to July 1999. However from that time until June/July 2000 when the boundary fence was fully put right I award full damages. The encroached land is valued at Vt109,000. Whilst I have no exact figures I find, in these circumstances, an assessment for loss of use for that year to be Vt25,000. I will consider submissions on legal costs in relation to this later.
2. The plaintiff now has the benefit of the trees planted by the defendant on the encroached portion. There can be no claim in respect of this. There is no counter-claim by the defendant.
3. There is no dispute that the defendant’s cattle and fowl have trespassed unto the plaintiff’s land. The defendant himself has accepted that. He however challenges the plaintiff’s figures for and proof of damage. He is also aware that the cattle of the neighbour on the other side, Mr. Simbolo, have strayed and caused damage.
The evidence of Willie George is clear. He states “Mi save identifaem buluk blong Mr. Jimmy from oli kat mark long olgeta,” (paragraph 4 of his affidavit). He also says “Mi witnessem fulap taim we buluk mo faol blong Mr. Willie Jimmy I kam insaed long properti blong Mr. Karie mo spolem ol fruit trees mo ol garden crops we mi nau mi planem blong Mr. Karie”.
The plaintiff accepts that Mr. Simbolo’s cattle also strayed onto his land and caused problems. Mr. Karie has been bringing the fact of the defendant’s straying livestock to the notice of the defendant for a long time, since 1998, yet the trespasses by the defendant’s animals continued. Indeed, Mr. Karie in December 1999 shot dead a trespassing cow of the defendant.
At paragraph 12 and Annexure D (affidavit dated 21st June 2001) the plaintiff set out the trees and crops he says were damaged by the defendant’s animals. There was no challenge to this evidence and these figures. There were some challenges to where the damaged crops were and fences across the middle of the property. These were rejected by the plaintiff.
I accept the plaintiff’s figures for the value of the crops. Although there has been no specific evidence from a forestry officer, the plaintiff was closely involved in the purchase of plants and trees and would have had a good first hard knowledge of their value.
Challenge was made about how much damage was caused by Simbolos’ cattle and the fact that there was confusion as to whose cattle were causing the damage. Mr. Karie replied “other neighbour, Simbolo his cows would come in but only at times, Simbolo’s bullocks didn’t cause the damage stated here. They had been on before but not up to the garden.”
Neither party’s counsel invited the Court to inspect the land in respect of any aspect of this case. I do not consider it would have assisted.
In his closing address defence counsel made strong submissions on this point. I find the plaintiff has proved a loss caused by the straying of the defendant’s animals. Whilst a Court must not guess, a reasonable figure can be awarded on the face of the evidence. I find that the plaintiff has shewn that at least two thirds of what he claims against the defendant has been proved. I therefore award the sum of Vt 838,937.
4. The assault and battery upon the plaintiff. It is agreed that in the evening of 21st December the plaintiff shot and killed one of the defendant’s cattle. The next morning several men went to the plaintiff’s residence at Anamburu. Some of them were employees of the defendant. There was an argument and the plaintiff was assaulted. The plaintiff alleges the defendant was present and the men were the servants or agents of the defendant and had been sent by him.
I have accepted the evidence of the plaintiff and his wife. I am satisfied one pushed the plaintiff from behind, one tore his pilot’s shirt and another punched him in his face.
The defence witness Robert Taliban says only the plaintiff, the defendant and his two small boys and another small boy were present. He admitted slapping the plaintiff twice on the face. He denied that the plaintiff “rowed” with the defendant.
James Rotia for the defence said he was there with Robert and two other boys. He said Robert slapped the plaintiff and the defendant arrived after the “fight”.
Both witnesses contradicted the evidence for the plaintiff concerning the straying cattle and the damage caused.
I find that both these witnesses are not reliable. They obviously have a loyalty to the defendant. They clearly watered down the facts of the assault; further, the injuries suffered by the plaintiff would require more than two slaps. I also find they have understated the amount of straying that occurred by the defendant’s cattle and the damage caused.
Whilst the plaintiff was giving evidence both these defence witnesses stared at the plaintiff. The witness Taliban glared persistently in a hostile manner and was warned about his behaviour.
Where the evidence of Taliban and Rotia differs from that of the plaintiff and his witnesses I prefer that of the latter.
The defendant himself gave evidence last as he could not attend at an earlier hearing. He accepted there was some straying but not where there were crops. He said the plaintiff had killed his chickens in the past.
He said he was aware of the bullock being shot and waited to resolve the matter in a customary and peaceful manner. He said “I went there myself, I sent the boys to take the cattle. Robert Taliban was working for me. I can’t recall where I was at the time of the assault… As soon as I arrived the fight was going on. My instruction was only to deliver the cattle … If I was there (when the fight was going on) I would have stopped them. He recollected seeing blood on the plaintiff’s shirt. He said present were himself, James, Taliban and Williams maybe there was another one who was not my employee”. “When I talked to Karie the boys were around me.”
I found the defendant was evasive when it came to the question of his witnessing the assault. His answers were ambivalent. The plaintiff said “ Willie Jimmy was in front, normal distance for conversation. Robert came in front and punched me. Three or four others standing around”. Where the plaintiff’s evidence and that of the defendant differs, I prefer that of the plaintiff.
I find there were more people from the defendant’s side present than the defence say. They included the defendant.
There was an argument about the shot bullock. That row included the defendant. The situation became intimidating for the plaintiff when some of those present came very close to him and one went behind. He was then assaulted, (the battery).
The only defendant named on the amended writ who has been served is Willie Jimmy. The plaintiff’s lawyer will have to explain to the plaintiff why this is so. The argument of the plaintiff is that the defendant was angry about the shot bullock, went around to the plaintiffs house with several henchmen to intimidate him and have him assaulted, and knowing he would be.
There might have been a strong case to support this had the defendant been cross-examined by the plaintiff’s lawyer about many aspects of the case. It could be said it was ‘unwise’ or ‘asking for trouble’ or “necessarily intimidating” for the defendant to visit the plaintiff in those circumstances with a number of men. However, it is for the plaintiff to prove his case. On the balance of probabilities I cannot say the plaintiff has shewn the defendant himself assaulted the plaintiff by intentionally creating in the plaintiff the apprehension of imminent harmful or offensive contact, nor that he was a party to the battery. I dismiss that part of the claim.
Accordingly I give judgment for the plaintiff in the sum of Vt. 883,937 (20,000 +25,000+838,937).
Having heard the parties on costs, I award party and party costs to the plaintiff up to the time the fence was fully put in the correct place. Thereafter each party must bear his own costs.
DATED AT PORT VILA this 21st day of December 2001.
R.J. COVENTRY
Judge
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