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Leon v Makilili [2022] VUSC 113; Civil Case 3023 of 2021 (26 July 2022)

IN THE SUPREME COURT OF Civil

THE REPUBLIC OF VANUATU Case No. 21/3023 SC/CIVL

(Civil Jurisdiction)

BETWEEN: Ravo Leon

Claimant

AND: Aman Makilili, Vira Makilili, Betasul Taweron, Zacheuas Hulture, Remy Hulture, Vital Hulture, Maki Melewet

Defendants

Date of Trial: 29 June 2022

Before: Justice V.M. Trief

In Attendance: Claimant – Mr T.J. Botleng, via video link

Defendant – Mr L. Tevi, , via video link

Date of Decision: 26 July 2022

JUDGMENT

1. This is a claim in trespass and nuisance, seeking an eviction order and damages for the Claimant Ravo Leon’s cattle that was killed and usage of land.
   
2. Mr Leon alleged that he began to live on Lalovkiki land at South Santo in 1971 and that his younger brother Aman Makilili and the other Defendants entered onto the land without his consent from 1995 onwards. It is alleged that they destroyed Mr Leon’s gardens and killed his cattle.
   
3. Mr Leon is not a custom owner of the subject land. Mr Leon’s Claim is made based on his prior occupation of the land.
   
4. All the evidence was tendered by consent. None of the witnesses were required for cross-examination.
   
5. Despite the extensive evidence filed for Mr Leon consisting of Exhibits C1-C8, it is accepted that there is no direct evidence that the Defendants killed Mr Leon’s cattle. It is asserted that Mr Leon had 36 heads of cattle but now only 6 left but there is no evidence by any eye witness as to who killed the cattle. That aspect of the Claim has not been proved.
   
6. The other aspect of the Claim seeks compensation for use of land. However, there is no evidence of the applicable market rental. Further, the evidence is vague as to how Mr Leon had developed the land and exactly what he had located on it that was subsequently entered onto and developed by the Defendants. Mr Botleng pointed to the photos of the Defendants’ pigs and horses grazing on the land, of the fish pond and their kava planting. That may prove what the Defendants now have on the land but it does not prove what Mr Leon previously had on the land and how it was converted or destroyed by the Defendants. The balance of the Claim has also not been proved.
   
7. For the reasons given, the Claim is dismissed.
   
8. The Defendants filed a Counter-Claim seeking payment of their alleged unpaid labour on Mr Leon’s farm from 1995 to date. The limitation period for claims for unpaid remuneration is 3 years: s. 20 of the Employment Act. Accordingly, the Defendants’ claim is limited to the 3 years prior to when the remuneration was due. More significantly, the Defendants’ evidence Exhibits D1-D4 do not contain any evidence as to what work they did for Mr Leon and the value of that work. The Counter-Claim also has not been proved.
   
9. For the reasons given, the Counter-Claim is dismissed.
   
10. Given the result, costs lie where they fall.
    
11. Counsel informed me that Mr Leon has previously obtained a judgment for damages against Mr Makilili in the Magistrates’ Court but that it has not yet been paid. Enforcement of that judgment is required rather than futile litigation in this Court.
    

DATED at Port Vila this 26^th day of July 2022

BY THE COURT

.................................................

Justice Viran Molisa Trief