IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE No. 8 of 2002

BETWEEN:

AKAU KALTAMAT & FAMILY
C/-State Area, Port Vila
Plaintiff

AND:

CHIEF KAS KALOU
Eddie Karsi
Richard Kalses
Kalokul Karis
Jeffrey Tanga
Pierre Kalfau
Sial Roy
Pakoa Kalses
Kaltap Richard
Allen Richard
Royise Ben
Berry Supu
Sponer Kalou
Christian Timothy
Kalfau Samson
Merakwi John Ten
Kalosik Kalour
C/- Eton Village, Efate
Defendants

Coram:	 Chief Justice Vincent Lunabek

Counsels: George Boar for the claimants
Ronald Warsal for the defendants

JUDGMENT

1.	Introduction

This is an application for damages for trespass and nuisance against the defendants.

2.	Brief Background of the Case

The plaintiff by way of amended statement of claim dated 1st day of July 2003 said the defendant trespassed and damaged his properties and assets. The plaintiff says each and every defendant conspired and act in unison with each other and people from Tanna and Epau to damage his properties.

The plaintiff says he continues to suffer loss of properties and have had to seek comfort from friends and relatives to house and take care of his needs.  He further said the defendants without lawful excuse entered and trespassed into his properties. He said the defendant’s entry was without his knowledge and was done in a calculated manner when he was not in his premises. Following the defendant’s trespassed and unlawful entry, the plaintiff’s properties including its contents thereof were totally burnt and destroyed.

The plaintiff now claims for damages and compensations for the losses he sustained during the burning of his properties.

The plaintiff, Akau Kaltamat is from Eton Village, South East Efate. On the 23rd of December 2001 at around 8:00 am the plaintiff went to the Village and stayed there until the 27th of December 2001.

On the 23rd of December 2001, the plaintiff made preparations for the Christmas celebrations on the 25th of December. This, of course, featured things like going to the garden to cut woods to prepare a shelter and collecting crops for final preparations of food.

On the 26th of December 2001, the plaintiff went to the garden, collect some crops then headed back to Port Vila.

On the 27th of December 2001 at around 8:00 am, the plaintiff went back to Eton Village to pick up his grand daughter, Roline. When the plaintiff reached the Teuma Shopping Centre, he met one of the defendants, Kalosik. Kalasik was driving a lorry towards Port Vila. The plaintiff says he waved to Kalosik but Kalosik did not respond to him.

On picking up his grand daughter, he returned to Port Vila. At around 11:00 am he was right at the old French Prison at the Stade area. He said he met Kalosik, this time the lorry contained a lot of man, woman and children from Tanna. He said Kalosik did not wave to him.

The plaintiff says Chief Kass Kalou and the defendants have already attempted to assault him in some occasions in the past. He said if he had been staying back at the village during that time, they might have badly assaulted him. The plaintiff was told later that people of Eton burnt his house and destroyed his property.

Each and all defendants deny strongly that they are liable for trespassing and damaging the plaintiff’s properties. They also deny they are responsible for nuisance.

3.	Summary of Evidence

•	Plaintiff’s Evidence

At least two witnesses gave evidence in support of the plaintiff’s version of events. Ann Kaltamat and Andrew Felix.

Ann Kaltamat said she did not know who burnt the plaintiff’s house nor even know who destroyed the plaintiff’s properties.

She alleges that the movement of her husband was a bit strange on the 26th December 2001 until the date the incident occurred.

She said she heard the bell was ringing. A sign of course, of the coming together of the people. She did not know the rationale behind the coming together of the people of the village. The Chief’s police later told her that she must prepare some food to feed people.

On the last ringing of the bell, her cousin sister approached her and told her people all went to Forari to see the plaintiff’s elder brother about some plots of land to which some people of Tongoa resided on.

She said she later saw the lorry containing people of Eton, Epau and Tanna, driving towards Forari. On the 27th of December 2001 in the evening, her husband returned home. She asked him about what happened. He never responded. On the same evening she saw her husband drunk Kava with some men from Tongoa and Tanna.

When her husband returned home from drinking Kava, he persuaded her that she must leave on the following day. She refused bluntly. Her husband insisted. On the 28th of December 2001 she left the village with her son. On their way she saw a lot of people from the village gathered together. They threw bad words at her. She walked quickly as if nothing happened. She said she saw the door of his father’s house (plaintiff) being damaged. 

Andrew Felix gave evidence that he was not at Eton Village during the burning and damaging of the plaintiff’s property. He said he did not know who damaged the plaintiff’s property. His father is the eldest brother of the plaintiff. He said he did not know as to who burnt the plaintiff’s house.

On the 27th of December 2001, he was at home with his wife, father and children. At 4:30PM, he went to the garden. His wife later called him with a message that some people were assaulting his father. He ran hastily back home. He said he saw Eddie and Chief Kas Kolou. They were standing together with the people of Epau and Tanna.

He said these people stoned him when they saw him. He hid himself behind the Kitchen. He saw them broke in his brother’s house and stole his belongings. He said he saw these people assaulted his father.  He named all the people from the Eton Village. Their names were in his Affidavit marked as Exhibit C3.

•	Defendant’s evidence.

All the defendants named herein gave evidence that they were not involved in one way or the other in damaging the properties and burning the house of the plaintiff. Every defendants said they were informed or told the next day about the incident. They said they did not know who burnt the house.

The evidence of each of the defendant’s were considered and recorded by the court.

4.	Facts as found by the Court

The plaintiff, Akau Kaltamat is living in Port Vila. He is from Eton village. He has an elder brother. His elder brother lives at Forari with his families.

The defendants are all from Eton village. The defendants and the plaintiff know each other very well.

On the 27th December 2001, the plaintiff’s eldest brother was assaulted at Forari by some of the defendants and some men from Tanna.

On the 28th of December 2001, the plaintiff’s house was burnt during the night. All the properties contained in the house were damaged. The plaintiff was living in Port-Vila town during which his house was burnt.  He did not see who set fire on his house in the night of 28 December 2001.

The plaintiff’s witness, Ann Kaltamat, did not know who burnt the house. She left the village in the morning of 28 December 2001 for Port Vila. She saw many people of Eton gathered together. She said they threw bad words at her. When she left Eton for Port-Vila her father’s house was not yet burnt.

I find that the other plaintiff’s witness, Andrew Felix, was in the same position as the plaintiff’s other witness. He did not know who entered and burnt the plaintiff’s houses on 28 December 2001.

The evidence is that on 27 and 28 December 2001, there were lots of people in the village of Eton. People celebrated Christmas in the village. They are people from Eton village including the defendants, some people from Tanna including women and children. Others are from Epau Island.

It is a fact that on 27 December 2001, some of the defendants, not all of them and some people from Tanna Island went to Forari to visit a land boundary and they assaulted the plaintiff’s eldest brother who lives and resides there.

It is also a fact that Anna Kaltamat saw so many people of Eton village on 28 December 2001 before she left for Prot-Vila with her son. Some of those threw bad words to her. She did not say that any of the defendants threw bad words to her. There is no evidence that any of the defendants threw bad words at her. The only part of her evidence which makes reference to a defendant is that her husband, Sial Roy, one of the defendants behaved in a certain way and asked her to come to Vila with their son. How this is linked with the incident of 28 December 2001 or about any internal matter between the couple is difficult to say.

There is no evidence from the claimant and his witnesses that any of the defendants on 28 December 2001, entered into the yard and set fire to his house. The plaintiff suspected that the defendants are liable for the damages of his house. Suspicion is not factual evidence to prove a claim. A claim must be established by proven facts.

There is no evidence of any conspiracy by the defendants as alleged by the claimant before the Court.

5.	Application of Law

•	Trespass

Trespass is an unauthorized interference with a person’s possession of land. The emphasis is placed on a direct interference or invasion of the claimant’s possessions, voluntarily and deliberately.

There is no evidence before the Court to show that any of the defendants directly and/or physically invaded the claimant’s possession of his properties on the night of 28 December 2001, and upon such an invasion which must be voluntary and deliberate, damaged the claimants’ houses by setting fire on them.

The claimant has failed to prove his claim for trespass on the balance of probabilities against the defendants.

•	Nuisance

Nuisance is defined as the imposition of liability as the result of an act or omission whereby a person is annoyed, prejudiced or disturbed in the enjoyment of his property. The disturbance may take the form of physical damage to land property or, more usually, of the imposition of discomfort upon the occupier (Law of Torts, Saleron & Henston 21st Edition at page 53).

Private nuisance is the unreasonable interference with an occupier’s use or enjoyment of his rights over his land. (Text Book on Torts) Michael A. June, 6th Ed. P. 278).

There is no evidence to suggest and to show that any of the defendants physically damaged the claimant’s properties on the night of 28 December 2001. There is no evidence that any of the defendants physically interfered unreasonably with the claimant’s use or enjoyment of his right over his properties at the time in question.

The claimant fails to prove liability in respect to nuisance on the balance of probability against the defendants.

The claimant’s case and evidence is essentially brought and conducted on the basis of interferential evidence. At the end of the trial and taking the evidence together and as a whole, it is not possible to find otherwise as there were not sufficient proven facts to constitute the basis of a reasonable inference to be drawn.

Order

1.	The claimant’s claim is hereby dismissed.

2.	The defendants are entitled to costs to be agreed or taxed.

3.	The assessment and determination of costs and the enforcement conference is set on 8 November 2003 at 4.00PM.

DATED at PORT VILA this 17th day of October 2003

BY THE COURT

Vincent LUNABEK
Chief Justice