Meltek v Public Prosecutor [2005] VUSC 142; CRC 060 2005 (13 December 2005)

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

CRIMINAL CASE No. 60 of 2005

BETWEEN:

RAPHAEL MELTEK
Applicant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Christina Thyna for the Applicant
Mr Abel Kalmet for the Respondent

JUDGMENT

This is an appeal filed on 13 October 2005 in Port Vila, against a judgment of the Magistrate’s Court at Lakatoro, Malekula of 27 September 2005.

The appeal seeks an order to set aside the above judgment of the Magistrate’s Court.

In the Magistrate’s Court, the appellant was charged with the offence of maliciously damaging a bamboo plant by cutting down 72 bamboo canes, contrary to section 133 of the Penal Code Act [CAP. 135]. The appellant pleaded not guilty to the charge. The Magistrate proceeded to hear his trial. On 27 September 2005, the learned Magistrate convicted the Appellant as charged and sentenced him to pay compensation in the amount of VT36,000 to the complainant before the 30^th October 2005. Failure of compliance would result in 6 months imprisonment.

The appellant then appealed against the judgment of 27 September 2005 and sought order to set it aside. The critical ground for the appeal is that the Magistrate erred in law in determining the ownership of a property which is part of the resources of a land the ownership of which is yet to be determined by the courts. On the facts before the Magistrate’s Court, the bamboo plant was planted on the land of PVR, the ownership of which is still pending for determination by the Supreme Court. The learned Magistrate did not make any finding adverse to that fact.

In his judgment, the learned Magistrate said that:

“There is proof of property being damaged by the accused (Appellant). In application of the finding, and the law the subject bamboo plant would rest upon the complainant’s possession and ownership. The tried question is over a specified property being damaged. There is clear proof of ownership. It is reminded that its determination would not extend to the issue of land which is currently pending before the principal Tribunal. Thus, in light of the foregoing evidence, this Court is persuaded by the prosecution’s case to find the defendant guilty as charged.”

With respect to the learned Magistrate, his finding is not in accord with the law. The Magistrate acknowledged that the land on which the bamboo plant is affixed is part of PVR land yet to be determined by the competent Tribunal. It is apparent that PVR land is a leased land.

“Land” is defined by the Interpretation Act [CAP. 132] in its schedule provision as follows:-

““land” includes any estate or interest in land, all things growing on land and houses, buildings and land covered by water;” (Emphasis added)

Further Section 1 of the Land Leases Act, [CAP. 163] provides that:

““land” includes land above the mean High water mark, all things growing on land and buildings and other things permanently affixed to land but does not include any minerals (including oils and gases) or any substances in or under land which one of a kind ordinarily worked for removal by under ground or surface working.” (Emphasis added)

The bamboo plant is one of the “things permanently affixed to land” on which it is planted. The question then is, can the learned Magistrate determine the ownership of the bamboo plant independently of that of the land to which it is affixed for purpose of conviction under section 133 of the Penal Code Act [CAP. 135]? The answer must be in the negative.

The bamboo plant is part of the land of PRV which is currently in dispute before the Supreme Court. The learned Magistrate could not be satisfied of any claim of ownership of the said property.

Any ownership as to other things affixed to the said land including the bamboo plant will be determined together with the PRV land case. The respondent could not claim ownership as to the bamboo plant until the dispute on the land is determined.

In the present case, there is evidence and the Magistrate was satisfied beyond reasonable doubt of the damage of the bamboo plant by the Appellant who cut down 72 bamboo canes. There is no evidence beyond reasonable doubt about a critical element of the offence of malicious damage to property under section 133 of the Penal Code, namely, the owner of the bamboo plant. The Magistrate should have stopped the case there and then as there is a reasonable doubt as to who owns the bamboo plant out of which the Appellant cut down 72 bamboo canes.

The prosecution concedes for the appeal to be allowed. For the foregoing reasons, the Court makes the following orders:

1. The appeal in Criminal Case No.60 of 2005 between Raphael Meltek (Appellant) and the Public Prosecutor (Respondent) is allowed.
   
2. The judgment of the Magistrate’s Court delivered at Lakatoro, Malekula on 27 September, is hereby set aside in its entirely.
   
3. There is no order as to costs.
   

DATED at Port Vila this 13^th day of December 2005

BY THE COURT

VINCENT LUNABEK
Chief Justice