Silas v Attorney General [2003] VUSC 86; Civil Case No 068 of 2002 (19 September 2003)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT ROVO BAY, EPI AND PORT VILA, EFATE
(CIVIL JURISDICTION)

Civil Case No. 68 of 2002

BETWEEN:

IAN SILAS
representing himself and his family of
Mate 1 Village, Epi in the Republic of Vanuatu
Plaintiff

AND:

THE ATTORNEY GENERAL
representing the Government of the Republic of Vanuatu
First Defendant

AND:

THE COMMISSIONER OF POLICE,
Vanuatu Police Force, Port Vila, Efate in the Republic of Vanuatu
Second Defendant

AND:

CHIEF TIMOTHY MAHIT
of Ngala Village, Epi in the Republic of Vanuatu
Third Defendant

AND:

PETER AMOS
of Mate 2 Village, Epi in The Republic of Vanuatu
Fourth Defendant

Coram: Chief Justice Vincent Lunabek

Counsels: Mr. Saling Stephens for the Plaintiff
Mr. James Tari for the First and Second Defendant
Mr. George Boar for the fourth and Fifth Defendants
The Third Defendant, Mr. Nehemiah William of Epi Island (now deceased) is no longer a party to the action. His name was struck out as a party to the action on 10 September 2002.

JUDGMENT

This is an amended summons of the plaintiff filed on 27 June 2002 against the First and Second defendants for unlawful interference and/or trespass or without a claim of right and eviction of the plaintiff and his family from the land thereof. The plaintiff claim therefore damages (to be assessed) against the First and Second defendant jointly and severally. The plaintiff claims also for an order for damages (to be assessed) against the Fourth and Fifth defendants for the theft of the plaintiff’s cattle, goats and chickens.

The plaintiff is a Ni Vanuatu citizen and lives at Mate 1 Village, Epi Island. The plaintiff says he is the owner of a custom land on which he erected fence and raise cattle, goats and chicken in the cocoa and coconut plantation.

The First defendant is the Attorney General sued on behalf of the government as the government principal legal advisor responsible for advising the government of the Republic of Vanuatu on all legal matters affecting the day to day running of the national administration of the government.

The Second defendant is the Head of the Vanuatu Police Force, a government Department responsible for maintaining law and order throughout Vanuatu.

The Fourth and Fifth named defendants are Ni Vanuatu citizens and live respectively at Ngala Village and Mate 2 Village, on the Island of Epi.

The Plaintiff says that on or about May 1997, the Rovo Bay Police on the Island of Epi as Agents and Servants of the First and Second Defendants trespassed on the plaintiff’s property without a claim of right and evicted the plaintiff and his family from the land referred to above.

It is particularized that the police attended and held a meeting at Mate Village and accused the plaintiff and his family of having breached a Court Order in respect to a civil action commonly known and referred to as Civil Case No. 48 of 1991 between Nehemiah and Salkon Yonah.

The said Order related to and prohibits development on the land which since the previous court proceedings is commonly known and referred to as the ‘Project Land’

The plaintiff says the police have therefore without due care and diligence executed the said Court Order on a different land (property) instead of the project land and causing the unlawful eviction of the plaintiff and his family therefrom.

The plaintiff says the servants of the First and Second named Defendants threatened the plaintiff and his family that if they continue to work on the land which includes coconut plantation and livestock, then, they would be arrested and be prosecuted.

The plaintiff says, since the meeting, the plaintiff have ceased to work on the land which subsequently saw the livestock being stolen by the Fourth defendant and his family. The cattle fence was not maintained and was left in disrepair.

Due to the non-maintenance of the plantation, the Fifth defendant and his family have periodically trespassed to the plantation and made copra and cocoa therefrom.

The plaintiff says that since the meeting held by the police the whole plantation project including the livestock has turned into ruins and the whole livestock, which includes cattle, goat, and poultry, had completely being destroyed as the plaintiff and his families are in fear the police might deal with them as advised.

By reasons stated above, the plaintiff says he suffers loss and damage. He claims also for interests of 12% since May 1997 to the date of judgment and costs.

The First and Second defendants deny any allegations in paragraph 7 in respect of trespass to the plaintiff’s property but they admit going to the village upon the request of the elders of the village to assist the villagers in respect of the Order made in Civil Case No. 48 of 1991. The action in Civil Case No. 48 of 1991 involves Nehemiah William Vasasia the Third defendant in this action and Salkon Yonah, another member of the village who is not a party to this action or matter.

As to particulars of allegations contained in the paragraphs, the First and Second Defendant’s say as follows:

(i) they admit going to the village to assist the disputing parties of the Court Order in Civil Case No. 48 of 1991 but they deny any allegation of threat and or force against the plaintiff or the plaintiff’s relative or any members of the family. They say the advice and statements made were general and not directed to any particular members of the village.

(ii) they admit subject to the copy of the orders which relate to Land known as project land

(iii) As to other particulars of allegations contained in paragraph 7, they deny them or do not know and so they cannot respond thereto.

The First and Second Defendants deny any allegations in paragraph 8 and also deny any claim for damages against them.

As to the relief sought by the plaintiff, the First and Second defendants deny any orders for damages against the First and Second defendants.

They finally say that the plaintiff’s entire pleadings is defective and does not disclose a cause of action against the First and Second Defendant’s.

The First and Second defendants contended on the grounds that:

(i) The plaintiff has adopted a wrong process by issuing a specifically endorsed writ. The specifically endorsed Writ used only in very special circumstances and is not appropriate in this action or matter.

(ii) The plaintiff failed to plead that the police officers acted in bad faith which is a requirement pursuant to section 40 of the Police Act [CAP 105]. As far as the question of liability issue is concerned, the Police Act recognizes that the plaintiff must show that the Police officers acted in bad faith.

(iii) The Police Officers had been invited by the chiefs and members of the Villagers to assist the disputing parties in maintaining the status quo as portrayed in the Court Order in Civil Case No. 48 of 1991 till the custom ownership issue is settled by the Courts.

(iv) They say in any event, the plaintiff was living on the land referred to in paragraph 7(c) of the plaintiff’s claim and the First and Second Defendant, deny any eviction carried out by the Police Officers.

Further more, the land referred to in paragraph 7(c) was declared by the chiefs on or about the 31^st August, 1998 that Mr. William is the custom owner and not Mr. Ian Silas, the plaintiff. They say there is no claim filed on the Island Court by the plaintiff to show that he has some interest on the land. They say that the plaintiff has no customary right to the land.

They seek the court to dismiss the matter and order that costs be made in favor of the First and Second defendants.

The Fourth and Fifth Defendants say that they deny that the plaintiff is entitled to any loss or damage.

They say the plaintiff at all material times, failed and refused to mend his fence in order to contain his cattle, chicken, and goats from wondering around.

They say the chiefs had on numerous occasions advised the plaintiff to mend his fence and contain his cattle, goat and chicken but the plaintiff failed and refused to do so. As a consequence, they say, the cattle, goats and chicken have trespassed into the Fourths and Fifth defendant’s gardens and ate, damaged, destroyed and totally uprooted the plants and crops grown in the gardens.

They further say that they deny that they kill any bullock, goat, or chicken. They deny also that they make any copra out of the plaintiff’s coconut plantation.

They finally say that if there is a bullock, goat or chicken that they killed, or other persons killed them, the bullock, goats or chicken did not belong to the plaintiff’s.

Summary of Evidence

Plaintiff

The plaintiff by way of Affidavit filed before this Court said that the Policemen from Rovo Bay held a meeting on May 1997 on Mate Village. The Policemen affirmed their position as regards the Court Order that the plaintiff and his families must cease from working on the plantation. The plantation is wholly owned by the plaintiff and is situated closer to the Mate village.

The plaintiff said Nehemiah William reported to the Policemen that the plaintiff and his families have been working on the land, which was subject to Court Order. The Court Order restrains the plaintiff from developing the land.

The plaintiff told the Police during the meeting that the Court Order restrains the people of Mate Village not to work on the land, which is called the ‘project land’. The land is situated in the Big Bay area. The plaintiff says his plantation is not the project land.

The plaintiff confirmed to the Court that he has a coconut plantation that had cattle situated on the Rai land. Mr. Silas also confirmed that he has not gone back into the plantation following the meeting of May 1997 called by the Police at Mate 1 village. He stated that the police officers informed them not to go to the plantation otherwise they would be arrested. During cross-examination, the plaintiff stated that he did not enter the plantation to mend his fence because there was a court order stopping him from doing so. The plaintiff said following the Police advice, himself and his family stopped working on the plantation.

The plaintiff confirmed that after ceasing work on the plantation, the Third and Fourth defendants were taking coconuts and killing his cattle. The plaintiff admits that the fence was not fixed because of fear of being arrested by the Police. He said the Third and Fourth defendants trespassed into his property stealing coconuts and cattle. The plaintiff said he has suffered loss and damages due to the unlawful actions of the defendants.

First and Second Defendants

The witness for the Defence (Don Nehemiah) stated in his evidence that the dispute over the land where the plaintiff’s plantation is located started way back before the police came to read the Court Order in May 1997.

Mr. Nehemiah stated that after the police read out the Court Order, the plaintiff and his family were still using the plantation. He stated in Paragraph 6 of his sworn statement that ‘after the meeting of the police I went to Rai Land in an attempt to assault Norman Sam because they did not stop working on Rai Land.

He said the plaintiff and his family never maintained the fence surrounding the plaintiff’s plantation and that people were killing cattle, goats and chicken before the police came to read the Court Order.

He stated that because of the Land dispute between the claimant and the William Nehemiah’s family this caused the claimant to feel threatened and not repairing the fence, therefore, the fence fell to the ground.

Mr. William Nehemiah Junior stated in his sworn statement that Mr. Ian Silas and his family after the police read out the Court Order, never moved out of the claimant’s plantation. He said in paragraph 3 of his Sworn statement that ‘’Ian Silas and his family members including his relatives are still cutting copra and also making garden on Rai Land. It is not true that Ian Silas’ family had left Rai Land’

Third and Fourth Defendant.

Mr. Timothy Mahit stated that he was at the meeting on May 1997 where the police read the Court Order. He stated that the police just read out the Court Order and there was no threatening words that are or will be likely to stop the claimant from going into the claimant’s plantation.

He stated that the fence surrounding the claimant’s plantation was not repaired and the cattle, goats and chickens have gone out of it before the police came to read out the Court Order.

Mr. Mark George stated on the other hand that the fence surrounding the claimant’s plantation was not repaired before the police came to read out the Court Order.

He stated that people were killing the claimant’s cattle, goats and chickens way before the police came to read the Court Order.

Facts as Found by the Court

The plaintiff in this action is Ian Silas and lives at Mate 1 Village on Epi Island.

The First defendant is the Attorney General sued on behalf of the government as the government principle legal advisor responsible for advising the government of the Republic of Vanuatu on all legal matters affecting the day to day running of the national administration of the government.

The Second Defendant is the head of the Vanuatu Police Force, a government Department responsible for maintaining law and order throughout Vanuatu.

The Fourth and Fifth named defendants are Ni Vanuatu citizens and live respectively at Ngala village and Mate 2 village, on the Island of Epi.

This case branches out from a land dispute between Nehemiah William and Salkon Yonah. This was in 1991. In 1995, the Court issued some orders with respect to the disputed land. Order 7 states that the defendant, Salkon Yonah shall not under any circumstances go upon the project land.

On May 1997, Police conducted a meeting at Mate 1, Epi. The rationale behind the meeting is to discuss the Court Order in relation to the ‘project land’. The issue surrounding the project land is that the plaintiff, Ian Silas has been working on the plantation, which is within the project land. Police Officers said the plaintiff’s plantation is within the project land. Police Officers told the plaintiff and his family to stop from advancing any development on the plantation.

The plantation is situated in a land called ‘Yawi, which contained the gardens of the plaintiff and his families. Police Officers said the project land comprises Yawi and Big Bay. Police Officers said the plaintiff and his family must stay away from the plantation nor do any development such as cutting coconuts for copra. The plaintiff and his families then stopped going to the plantation. They were afraid of being arrested and prosecuted for breaching the Court Order.

Due to Police directions, the plantation was left untouched. The fence surrounding the plantation was out of order. The cattle, goats and domestic animals roam around. People trespassed into the plantation and slaughtered the cattle. The crops and gardens were in dis order.

Application of Law

ORDER

UPON hearing and counsels, the Court makes the following Orders:

1. The plaintiff’s claim for unlawful interference and/or trespass against the first and second defendants is dismissed. There is no cause of action to substantiate trespass by the first and second defendants. The plaintiff failed on balance of probability to prove any unlawful interference by the first and second defendants.

2. The plaintiff’s claim against the third and fourth defendants for stealing and killing of the plaintiff’s animals, is dismissed. The plaintiff fails on balance of probability to prove his claim against the third and fourth defendants.

3. The first, second, third and fourth defendants are entitled to costs.

4. The matter is listed on 14 October 2003 for assessment of costs and enforcement conference.

DATED at PORT-VILA this 19^th Day of September 2003

BY THE COURT

Vincent LUNABEK
Chief Justice