Ravo v Government of Vanuatu [2004] VUSC 103; Civil Case 008 of 2003 (26 July 2004)

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

Civil Case No: 8 of 2003

BETWEEN:

MARINA RAVO
Claimant

AND:

GOVERNMENT OF VANUATU
Defendant

Coram: Mr Justice Oliver A. Saksak
Ms Cynthia Thomas - Clerk

Counsel: Mr Willie J. Kapalu for the Claimant
Mr Michael Edwards and Mr Abel Kalmet for the Defendant

Date of Hearing: 30^th March, 2004
Date of Judgment: 26^th July, 2004

JUDGMENT

ELECTRICITY SUPPLY ACT – TRESPASS TO LAND – Erection of electrical post and cables without consent – continuing threat and risk to lives – DAMAGES – COMPENSATION PAID – ESTOPPEL and TIME LIMITATION

Background Facts

In 1995 the Defendant contracted with a Japanese company to construct a hydro-electricity scheme on Espiritu Santo. Part of this project involved the s\construction of a power line to carry the power from the hydro-electric generator to Luganville Town. The route of the power line was such that it had to cross the claimant’s land held by her through leasehold. That required that a power pole be constructed on the Claimant’s title. The Claimant was not occupying the title in 1995 when the power pole and the cables were erected. When she later discovered this, the claimant contacted the Energy Unit about it. The Energy Unit as agent for the Defendant entered into negotiations with the Claimant in order to resolve the matter. The Energy Unit offered three options to the claimant:-

(a) Whether she could retain her title and receive compensation over that part which the power pole and the cables now stand and crosses?;

(b) Whether to surrender her title back to the Government as the Lessor and be refunded all expenses incurred by her in the process of securing the leasehold?; or

(c) Whether the Claimant would accept being allocated another plot of land?

The Claimant chose to take the first option. She was therefore paid the sum of VT176.000 on 7^th December 1995 which payment she had acknowledged receipt of and accepted. She then commenced residing on the title in 1999.

Nothing further happened until about 2^nd September 2002 when the Claimant spoke to the Principal Energy Officer, Mr Leo Moli about submitting her claims. She lodged her formal claims in her letter dated 6^th September 2002 claiming damages for trespass at the rate of VT100.000 per month commencing in 1996 and continuing until the power pole and cables are removed from her title. The Principal Energy Officer responded to the claiming informing her that they had considered the matter settled when the claimant accepted compensation payment in the sum of VT176.000. That resulted in the claimant filing a Supreme Court claim on 2^nd April 2003. She filed an Amended Claim on 22^nd September 2003.

Claims

The Claimant is claiming general damages in the sum of VT100.000 per month from 1996 to date and continuing unless and until the power pole and cables are removed. She is also claim damages for trespass in a fixed sum of VT100.000, and costs. She seeks an order that the post and cables be relocated to enable her safety and the full use and enjoyment of the land.

Burden of Proof

The Claimant has the burden of proof on the balance of probabilities.

Evidence

The Claimant testified orally and was cross-examined in relation to her sworn statement dated 9^th July 2003 tendered into evidence as Exhibit P1. She acknowledged accepting an offer of compensation for the sum of VT176.000. She alleged risks to lives by high voltage overhead cables carrying 1,000 – 50,000 volt to within 3 metres of her leasehold property. She alleged that vegetation directly underneath the cables were affected by the power passing through the overhead cables. She confirmed she was given two other options but did not choose them as they would be expensive to her. Her witness was Tari Vurobaravu. He told the Court that on inspecting the site he said the cables are too low and that as such they pose a high risk to the occupants of the property. His sworn statement was tendered as Exhibit P2.

The Defendants produced evidence orally and by affidavits from Leo Moli, the Principal Energy Officer and Vincent Bovet. Their respective sworn statements were tendered into evidence as Exhibits D1 and D2.

Issues and Findings

The Claimant submitted two issues.

1. Whether the erection of the post and overhead cables affect full use and enjoyment of the land and poses risk to life?
   

I find no evidence from the Claimant that the overhead cables pose risk to lives. She did not produce evidence showing that either herself or her relatives have been treated for shock or the like. She did not produce photographic evidence showing withered vegetations or the difference before the posts and cables were erected and after. Her witness did not either. They only think there are risks but have not shown the actual risks. Therefore this issue is answered in the negative.

2. Whether compensation pay out of VT176.000 cater for the future effect of overhead cables and posts?
   

The Claimant accepted payment of VT176.000 as compensation in 1995. She was given two other and better options. She chose not to take them. She waited until April 2003 to file her claim.

I accept the Defendant’s submissions that the Claimant’s claim is time-barred. Section 6 of the Electricity Supply Act [CAP. 65] is clear. It states:-

“Every person who sustains any damage or loss of a certain and materials nature by reason of the exercise of any of the powers conferred by section 5 upon the concessionaire may make application for compensation in writing in that behalf to the concessionaire or the Minister, as the case may be, at any time before the expiration of 1 year after the act, matter or thing in respect of which such damage or loss alleged to have been sustained, and if he fails to make application within such period his claim to compensation shall be barred." (emphasis added)

The claimant is indeed estopped from making further claims for compensation for erection of a pole and cables on and over her property. That was a one-off payment and it is my view that she cannot claim anymore. However it appears to me that the Claimant is also seeking compensation for future effects. Reading section 6 of the Act carefully I think that his is not altogether ruled out. Such a claim in my view can be entertained on the following conditions –

(a) That there is actual damage, loss or risk suffered by the occupant(s);

(b) The Claimant(s) can show by admissible and relevant evidence that such damage, loss or risks have been incurred; and

(c) The claim (if any) be made in writing to the appropriate authorities within 1 year after the act, matter or thing has occurred.

In this I am not satisfied that the claimant has suffered risk, damage or loss. I therefore answer this issue in the negative.

I therefore accept the Defendant’s submissions that the Claimant’s claims should be dismissed with costs.

In the circumstances I make these Orders –

(1) The Claimant’s claims are dismissed in their entirety.

(2) The Claimant will pay the Defendant’s costs of and incidental to this proceeding.

DATED at Luganville this 26^th day of July, 2004.

BY THE COURT

OLIVER A. SAKSAK
Judge