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Mele v Rene [2009] VUSC 120; Civil Case 40 of 2005 (18 September 2009)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(CIVIL JURISDICTION)

Civil Case No. 40 of 2005

BETWEEN:

VIRA MELE & RONGO VIJI
Claimants

AND:

CHIEF MAXIME RENE
First Defendant

AND:

ATANAS ATO, SANIEL ATO, VELIX ATO, ALICK SIE MORRIS, MOIS PHILIP, ARNOLD VIRA and CHRISTOPHER JEAN CLAUDE
Second Defendants

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Saling N. Stephens for the Claimants
Mr Jack I. Kilu for the First and Second Defendants

Date of Hearing: 11th May 2009
Date of Judgment: 18th September 2009

JUDGMENT

1. The Claimants claim for damages totalling the sum of VT1,910,000 made up of –

(a) Damages for trespass – VT10.000

(b) Loss of 30 heads of cattle at VT20.000 per heads VT600.000

(c) Cattle breeds of one head per year x 30 heads – VT1.200.000

(d) Damage to wire fence – VT20.000

(e) Abusive language to Manager Rongo – VT20.000

(f) Threatening with knife – VT20.000

(g) Costs of action – VT50.000

2. The Claimants allege that in October 2000 one of the defendants namely Saniel Ato with Arnold Vira and the others chased the Claimants cattle out of their fence. They were about 40 heads altogether which they chased out. They allege this happened on the instruction of the First defendant. They allege a meeting was arranged by the First defendant at which he made admissions of giving instructions to the defendants to chase the Claimants’ cattle out of their fence. Further admissions were made for the return of 10 heads of cattle with a promise to return the other 30 heads at a later date. These 30 heads of cattle have never been returned to date.

3. The Claimants’ claims are supported by the evidence by sworn statements of Elder Rongo Viji, of 20th September 2005, Chief Tavaliu Sirovulu of 20th September 2005 and of Vira Mele also of 20th September 2005.

4. The defendants filed a Defence on 20th December 2005 generally denying knowledge and liability for the claims.

5. On 9th February 2006, the defendants filed evidence by sworn statements from –

1. Chief Maxime Rene, First Defendant
   
2. Atanas Ato;
   

100. Channel Ato; and
     

4. Piloi Alexi. He filed a further sworn statement on 9th March 2006.
   

6. On 29th May 2006, the Claimant Vira Mele filed sworn statements in reply to the further sworn statement of Piloi Alexi of 9th March 2006.

7. The case was called for hearing on 11th May 2009. Only Counsels were present in Court on that date and informed that since neither of them had served any notices to cross-examine their witnesses they had agreed to rely on four sworn statements by the Claimants and on four statements by the defendants. These were taken as read into evidence. Counsel then agreed to file written submissions within 21 days from the Claimants and within a further 21 days thereafter from the defendants.

8. The Claimants filed their submissions after a reminder from the Court only on 20th August 2009. The Defendants have not done so and the Court will dispense with their submissions.

9. I have examined the claims of the Claimants in light of the evidence made available to the Court and I am satisfied on the balance of probabilities that the Claimants have proven the following heads of damages –

1. Trespass
   
2. Loss of 30 heads of cattle
   

100. Abusive language
     

4. Threatening
   

The Claimants will have judgment only for these heads of damages.

10. The Court is not satisfied the Claimants have proven by evidence showing-

1. How many of the 30 heads of cattle lost were cows capable of breeding one calf per year; and
   
2. Damage to fence.
   

These will be disallowed by the Court.

11. There will therefore be judgment in favour of the Claimants against the First and Second Defendants jointly and severally but only for general damages covering –

12. The Claimant’s are entitled to their costs of and incidental to this action on the standard basis to be agreed or taxed by the Masters.

13. An enforcement conference will be called within 28 days after this judgment for the Defendants to explain how they will pay the sum of VT640.000 held against them.

DATED at Luganville this 18th day of September 2009.

BY THE COURT

OLIVER A. SAKSAK
Judge