4.   &nbssp;&nnbp; &nsp; &nbbp;&nnbsp; &nbbsp;
Than>The assault and battery upon the plaintiff.
p>
I heard evidence from the
plaintiff, his wife Anne Karie and his workman Willie Slie 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 wThey 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.&nb"> &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; The Trespass<
>
It is not disputed that the
defendant’s boundary fence was oras 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. &bsp; ;&nbpp; &&nsp;; &nbp; &nbp; &&nbp;;
The plae 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 nnter- by tfendant.
p>
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3. & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
There isino dispute that the deft’s c and have
trespassed unto the plaintiff’s land. The defendant himself self has ahas acceptccepted
that. He however challenges the plaintiff’s figures fd proof of damage.
He 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”.
/p>
The plaintiff ts that Mr.
Simbolo’s cattle also strayed onto his lais 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) 001) 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 o crops. Although there has 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 spect of any aspect of this this case. I do
not consider
it would have assisted.
4. &nsp; &nbbsp; &nbbsp; &nbp;
p;
The assanlt and battery upon the plaintiff. It is agreed that in the
eg of p>st
I have aed the evidence of
the plaintiff and his wife. I am satisfied one pushed the plaintifintiff from
behind, one tore
his pilot’s shirt and another punched him in his face.
The defence witness Robert
Taliban says only the plaintiff, tfendant and his two small ball 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 Roand two other boys. He said Robert slapped the
plaintlaintiff and
the defendant arrived after the “fight”.
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Both witnessetradicted the
evidence for the plaintiff concerning the straying cattle and the damagdamage
caused.
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I find that boese
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.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Whilst the piff was giving
evidence both these defence witnesses stared at the plaintiff. The wite witness
Taliban glared
persistently in a hostile manner and was warned about his
behaviour.
Where the evidence of Taliban
and Rotia differs frot of the plaintiff and his witnesses I prefer that
of of the latter.
The defendant himself gave
evidence last asould not attend at an earlier hearing. He accepted
th 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 resohe matter in a customary anry 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 questquestion 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 the defence say. They incluincluded the
defendant.
There was an argument about the
shot bullock. That row includeddefendant. The situation beon 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 s is Willie Jimmy. The plainplaintiff’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.
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There might have been a strong
case to su this had the defendant been cross-examined by the
pl 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+87).
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 21st
day of December 2001.
>
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R.J. COVENTRY
Judge
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