Wokon v Government of the Republic of Vanuatu [2006] VUSC 25; CC 165 2002 (12 June 2006)

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

JOSELITO WOKON, CHARLES CYRIQUES, RAYMOND BONGNAIM, SYLVANU ORREN & ALPHONE LASSA
First Claimants

LAURENT LEINGKONE AS REPRESENTATIVE OF
BERNARD LEIGNKONE FAMILY
Second Claimant

Mr. Boar for the First Claimants
Mr. Timakata for Second Claimant
Mr. Loughman for the Defendants
Mr. Toa for Third Party

An amended Supreme Court claim was filed on 20 March 2003, the original claim having been filed on 27 September 2002.

In the amended claim, the Claimants indicated that they represented 119 individuals from villages from North Ambrym, Vanuatu. The Claimants alleged that in 1993 Ministers of the Republic undertook to build an airport at Olal, North Ambrym, and the Claimants alleged that they were the custom land owners and were not consulted nor gave their approval to the Government to carry out the building of such an airport, and in fact opposed it.

Despite the Claimants' opposition to the project, on 14 September 1994 Government employees began cleaning and bulldozing the Claimants' properties, gardens, plantations and yam fields to construct that airport. The Claimants contended that such clearing work finished on or about 30 October 1994, but that the airport project itself was never completed.

The Claimants in their claim sought recovery for their loss of property together with exemplary damages and costs on the basis of trespass and nuisance and also claimed that their constitutional rights had been breached. Justice Coventry had earlier decided that there were two bases of the claim namely a common law claim and what was in essence a constitutional petition.

In their defence the Defendants claimed that they had settled any claim in relation to the clearing of the land in various payments which had been made to the Third Party and which had been paid into Court in CC175/03 and alternatively that the Claimants' action was statute barred under the Limitation Act No. 4 of 1991.

In an earlier application filed on 23 September 2003, where the Defendants applied for an order that the Claimants' proceeding be struck out on the basis that the claim was statute barred and on the basis that the claim did not particularized how the Defendants had breached the Claimants' constitutional rights, the Court as presently constituted, held that the Defendants' application to dismiss the claim for breach of the Limitation Act should be adjourned until all the evidence was before the Court and that the Defendants' application to dismiss the constitutional proceeding was declined. (See decision 9 August 2004).

An application was made by Laurent Leignkone as representative of the Bernard Leignkone family to be joined as a Claimant and this application was allowed.

The parties filed sworn statements as to the circumstances surrounding the incident and as to the valuation of property which the Claimants deposed that they had been deprived of.

Cross-examination took place of all witnesses and submission were made by counsel.

The Claimants submitted that the cause of action was based on trespass and nuisance and damages were sought in the sum of VT499,175,565 together with exemplary damages of VT10,000,000 and alternatively based on breaches of Articles 5 (1) (d) and 5 (1) (j) of the Constitution.

The First Claimant submitted that the following issues needed to be determined by the Court:

"1. Whether the Defendant committed the act of trespass and nuisance on the Claimants properties following which there was resultant damages?

As to issue 1, the First Claimants' written submissions was that there was no consultation meeting or agreement between the First Claimant and the Government and correspondence in the papers was referred to. The submission was that the Government accepted that there should have been a meeting but that never took place. An analysis was done of the evidence of the Second Claimant and the evidence of the other parties even though the Defendants had filed no evidence of their own.

As to the second issue, the First Claimants submitted that there was no proper assessment of the crops and fruit trees and that there seemed to have been another assessment at VT30,575,443.

As to issue 3, it was submitted that the Council of Ministers had made another resolution on 11 May 2000 and confirmed their ongoing obligation to liability and that should be the date for which time for commencing an action should run.

Submissions were made on the authorities as to common law trespass and nuisance and the First Claimants submitted that the quantum of damages had been set out in various sworn statements.

As to issue 4, the First Claimants submitted that the Third Party was not entitled to any compensation at all for the clearance of Olal airport because he had no fruit trees and/or crops on the land that the bulldozers cleared. He was not even declared to be the landowner of the Fonmour land until 1996. The compensation was for loss of crops, fruit trees and gardens and not for the custom owners of the land.

As to issue 5, it was submitted that it was clear that there were breaches of the First Claimants' rights in that their properties were destroyed and that they were threatened.

It was further submitted that the provisions of the Land Acquisition Act No. 5 of 1992 were not complied with.

It was in general submitted that for such a fundamental breach, there should be an award of VT100,000,000.

As to issue 6, it was submitted by the First Claimants that the six years for the Second Claimant to file his claim should run from 6 June 1995 that is until 6 June 2001.

The Second Claimant submitted through his counsel that he was part of an agreement with other property owners and the Government for compensation for loss of property. An assessment was carried out in the presence of two government officials in the total sum of VT8,179,694 and it was that amount that the Council of Ministers endorsed as being compensation claimed in their decision no. 70 of 6 June 1995. It was submitted on behalf of the Second Claimant that, notwithstanding any argument as to limitation of time, the constitutional claim was still maintainable for the Second Claimants' protection of law and being unjustly deprived of his property being crops and fruit trees which was his livelihood. It was submitted that the Second Claimant must prove an agreement between him and the First Claimants and that they owned property on the site to be cleared and the property was cleared and that they did not receive compensation. It was submitted that the Second Claimant's evidence substantiated this in his sworn statement, and was further confirmed in cross-examination of the First Claimants' witness Sylvano Orren. It was submitted that much of the remaining evidence of the First Claimants' was inadmissible as being hearsay and that other evidence was inadmissible because it was unreliable and had inconsistencies which could not be resolved. As far as the Third Party case was concerned, the Second Claimant submitted that his claim was based on the ownership of the land and not the ownership of the destroyed property and that the Third Party had been unable to establish that either he or his father had planted crops on the cleared area. The Second Claimant also claimed interest.

The Defendant submitted that the Claimants' claim was statute barred and that the claim for breach of constitutional rights was unsubstantiated and the claim for exemplary damages was speculative and unsubstantiated and that the loss of the Claimants should be limited to the VT8,179,694 and that their loss should be indemnified by the Third Party for the amounts already paid by the Government to the Third Party. It was submitted that as the claim was statute barred, the action for trespass and nuisance were thus not relevant. In addition, the evidence concerning trespass was hearsay and contradictory and that the contention by the First Claimants that the claim was based on some sort of conspiracy between UMP members was a sham because it seems from cross-examination that Mr. Zachary Wokon of the First Claimants was a member of that party in any event. As to constitutional breaches, the Defendant submitted that in the amended statement of claim no particular provision of the Constitution was pleaded as having being breached and that section 218 of the Criminal Procedure Code Act [CAP.136] set out the then bases for a constitutional petition which had not been followed. The petition should not have been part of common law action and in any event it was clear on the evidence that the sum of VT8,179,694 corresponded to the order of the Council of Ministers. It was submitted by the defence that as far as the Third Party was concerned he should receive nothing and should indemnify the Claimants for their losses over and above the monies still held in Court.

"1. Should the Government of Vanuatu pay more money than the total VT8,000,000 to the Third Party and his family;

The Third Party submitted that the First Claimants' evidence was hearsay and inadmissible and the Second Claimant was only claiming for his share of the VT8,179,694. It was submitted that the Defendants relied upon the evidence of the other parties in Court and advanced no independent testimony that the Third Party should not receive the balance of VT5,072,347 which has now been paid into Court because the Third Party was the declared custom owner of the Fonmour land and the Government should be estopped from contending that the money already paid under the consent judgment should be paid to anyone else.

As I said in my decision of 9 August 2004 section 3 (1) (a) of the Limitation Act No.4 of 1991:-

I am of the view that that time limit is absolute and must be complied with. That is in accordance with the principles contained in the Court of Appeal decision of Kalsakau v Hong & ors [2004] VUCA 2; CAC No.30 of 2003 where the Court held that in relation to section 22 of the Island Courts Acts strict compliance with the time limits in relation to an appeal and an application seeking an extension of time for an appeal was essential. There is no provision in the Limitation Act for extension of the time limit in a claim based on a simple contract or on a tort, which appears to be the basis of this action."

The fundamental rights and freedoms of an individual within this Republic are set out in Article 5 of the Constitution of the Republic of Vanuatu which provides as follows:-

There is no time limit for a constitutional petition and I already found in my decision of 9 August 2004 that the constitutional petition as framed should be considered.

The relevant provisions of the Land Acquisition Act No.5 of 1992 relate to notice and formalities required where land is to be used for a public purpose. However that is not relevant to this claim which is for loss of property and not for loss of land.

As I indicated above, the Defendants' application to dismiss the claim for breach of the Limitation Act was adjourned until all the evidence was before the Court. That is now the situation. Nothing in the evidence now adduced persuades me that the First and Second Claimants filed their common law claim for damages within time. In their own pleadings the clearing works were completed on or about 30 October 1994. The original writ of summons was filed on 27 September 2002. That was clearly out of time and the action was not brought before the expiration of 6 years from the date on which the cause of action occurred. I do not accept that the Defendants further admitted liability to the Claimants on 11 May 2000. Even the sworn statement of Charles Cyriaque in response to the issue of the limitations issue indicated that although the First Claimants had written to "four successive of governments, no one of them had the courtesy to respond" and the plain fact of the matter is that the Claimants did not file their claim in time. Clearly the claims for exemplary damages, trespass and nuisance must as a result be dismissed.

However, it is equally clear that the Claimants' constitutional rights were breached because they were unjustly deprived of their property being trees, crops and gardens and have not been compensated. However, they should not be entitled to recover more than has been agreed to.

I find that the annexure "A" to the sworn statement of Laurent Leingkone correctly sets out the agreed compensation for the North Ambrym Airport at Olal and that was confirmed by the decision of the Council of Minister's meeting. The text of the letter (annexure "F") is as follows: -

The fact that the assessment Annexure "A" is exactly the same amount as the approval Annexure "F" is compelling and conclusive in my view and represents the proper amount of compensation. It was after all made at the relevant time and it is the only logical conclusion that the Council of Ministers based its decision on the assessment. I find that the later claims by the First Claimants are exorbitant and excessive and cannot stand. In any event, apart from about four of the witnesses, the evidence is hearsay and inadmissible. I find the other witnesses to be unreliable and inconsistent. There is no basis for the inflated claims and, as the total area of clearing was only 13.24 hectares, all the First Claimants now seek in total could not fit within that relatively small compass. For example Mr. Bob Saksak Noe said that his claim covered 10 hectares which would not leave room for any other Claimants.

The constitutional claim is based on ownership of property and not ownership of land and the Third party has not established that he lost any property thus the amount of judgment in Civil Case 175 of 2003, which has now been paid in full by the Government, does belong to him but to the owners of the trees, crops and gardens which were destroyed. I do not agree that the Defendants are estopped from denying the claim for damages because they consented to Judgment in CC175/03. The full order for Judgment was as follows: -

By consent judgment is entered for the claimant against the defendant for Vt5,072,347 together with costs at the standard rate as agreed or as determined by the Court.

The defendant must pay the judgment sum of VT5,072,347 into Court by 3pm on 8 December 2004. The Registrar must deposit the judgment sum into a commercial bank deposit in an interest bearing account to best advantage until the determination of CC165/02 or until further order of the Court"

That clearly envisages that the judgment sum should be paid into court until determination of this action (CC165/02).

I agree that the amount of the judgment paid into Court in CC175/02 does not belong to the Third Party but to the Claimants and should be paid out to them in terms of the agreement. The Third Party must indemnity them for the balance of the sum of VT8,179,694 and the Third Party is entitled to recover nothing. In confirmation of his position he said under cross-examination that if he had seen the assessment when he received the earlier money he would not have touched it. In addition when the Third Party was asked the hard questions under cross-examination he was unable to comment on many occasions. In any event, I also find that the preponderance of the evidence at the hearing satisfies me that only part of the cleared area is on the Fonmour land of which the Third Party is the declared owner.

Compensation = Revenue lost, due to removal of trees over the period taken for replanted tress to bear fruits plus cost of replanting

Area	Number	Age	Yield	Revenue	Lost revenue	Replanting	total
FONMOUR
Catholic mission	105	70	0	11,092	77,641	22,183	99,824
Joachin Tumurmal	195	70	1	20,599	144,190	41,197	185,387
Zavier Kanas	3	50	0	317	2,218	634	2,852
Charles Siriar	136	60	1	14,366	100,563	28,732	129,296
Noel Atanas	17	50	0	1,796	12,570	3,592	16,162
Micheal Turkon	104	50	0	10,986	76,901	21,972	98,873
Noe Saksak	520	50	2	54,930	384,507	109,859	494,366
Fidel Sali	74	50	0	7,817	54,718	15,634	70,352
Michael Turikon	4	45	0	423	2,958	845	3,803
Bernard Lengen	247	45	1	26,092	182,641	52,183	234,824
Eliza Dorire	175	50	1	18,486	129,401	36,972	166,373
Miain Bongvivi	223	50	1	23,556	164,894	47,113	212,007
Michael Korkor	91	45	0	9,613	67,289	19,225	86,514
Hivir Marco	13	45	0	1,373	9,613	2,746	12,359

ARIMAL	Number	Age	Yield	Revenue	Lost revenue	Replanting	total
Antione Dewa	225	25	1	23,768	166,373	47,535	213,908
Moises Cazar	28	25	0	2,958	20,704	5,915	26,620

COCOA Yield 1,000kg/ha Time to full bearing 4 years Price of produce 90,000 Vt/tonne Cocoa 53,000 Vt/Ha
FONMOUR	Number	Age	Yield	Revenue	Lost revenue	Replanting	total
Joachin Tumurmal	15	25	0	1,023	4,091	602	4,693
Charles Siriar	53	25	0	3,614	14,455	2,128	16,583
Leingkone Bernard	Breadfruit Navel Nadao		12 3 3	96,000 15,000 9,000	600	96,600 15,000 9,000 120,600
Zakari Wokon	Corosol Orange		47 41	1,410 184,500	8,200	1,410 192,700 194,110
Zavier Kanas	Is. Cabb Is. Taro Fiji Taro		40 40 32	20,000 2,400 1,920		20,000 2,400 1,920 24,320
Marie Adriene	Is. Cabb Fiji Taro		35 9	17,500 540		17,500 540 18,040
Charles Siriar	Breadfruit Orange Navel Nangae Corosol Nakavika Namabe Nadao Naus		5 12 14 1 6 3 5 1 1	30,250 56,400 70,000 5,000 180 9,000 15,000 3,000 3,000	250 2,400	30,500 58,800 70,000 5,000 180 9,000 15,000 3,000 3,000 194,480
Noel Atanas	Namabae Navel Mango Breadfruit Nakatambol Corosol		7 10 2 8 4 2	21,000 50,000 12,200 48,400 12,000 60	200 400	21,000 50,000 12,400 48,800 12,000 60 144,260
Michael Turkon	Natagura Orange Nangae Navel Manabe Nakatabol Corosol Breadfruit		2 4 1 6 1 4 9 12	100,000 18,800 5,000 30,000 3,000 12,000 270 72,600	800 600	100,000 19,600 5,000 30,000 3,000 12,000 270 73,200 243,070
Emele Makru	Orange Nangae Nakavika Namabe		5 2 5 1	23,500 6,000 15,000 3,000	1,000	24,500 6,000 15,000 3,000 48,500
Eliza Dorire	Natanura Orange Navel Corosol Breadfruit Mango Nandao Nakavika Naus Is. Cabb		2 28 13 29 12 2 3 4 3 52	100,000 131,600 65,000 870 72,600 12,200 9,000 12,000 9,000 26,000	5,600 600 200	100,000 137,200 65,000 870 73,200 12,400 9,000 12,000 9,000 26,000 444,670
Demiain Bonguiui	Breadfruit Navel Corosol Nakavika Natangura Nandao Sugarcane Pineapple Kumala Banana		12 17 80 4 5 5 111 32 123 31	72,600 85,000 2,400 12,000 250,000 15,000 5,550 4,800 3,690 7,750	600 1,550	73,200 85,000 2,400 12,000 250,000 15,000 5,550 4,800 3,690 9,300 460,940
Michael Korkor	Orange Navel Corosol Nakavika Noduledule Nangae		1 18 8 2 1 1	4,700 90,000 240 6,000 3,000 5,000	200	4,900 90,000 240 6,000 3,000 5,000 109,140
Ernest Saghui	Pineapple Nasese		32 15	4,800 15,000		4,800 15,000 19,800
Edmond Oven	Banana Kumala Is. Taro Fiji taro Is. Cabb Manioc		33 150 183 280 87 123	8,250 4,500 9,150 14,000 43,500 6,150	1,650	9,900 4,500 9,150 14,000 43,500 6,150 87,200
ARIMAL
Timonthy Worwor	Kumala Is. Taro		156 137	4,680 6,850		4,680 6,850 11,530
Marie Denis	Banana Kumala Is. Taro Is. Cabb manioc		12 84 90 287 130	3,000 2,520 4,500 143,500 6,500	600	3,600 2,520 4,500 143,500 6,500 160,620
FONMOUR	Coconut		Cocoa	Kava	Food	Total
Catholic Mission	99,824				107,240	207,064
Joachin Tumurmal	185,387		4,693			190,080
Zakari Wokon					194,110	194,110
Leingkone Bernard					120,600	120,600
Zavier Kanas	2,852				24,320	27,172
Marie Adriene					18,040	18,040
Charles Siriar	129,296		16,583		194,480	340,359
Noel Atanas	16,162		6,883		144,260	167,305
Michael Turkon	98,873		2,190		243,070	344,133
Emele Makru					48,500	48,500
Noe Saksak	494,366		165,200		1,314,920	1,974,486
Fidel Sali	70,352		34,730		39,780	144,862
Michael Turikon	3,803				25,090	28,893
Bernard Lengen	234,824		92,612		1,419,340	1,746,776
Michel Turiri					2,100	2,100
Eliza Dorire	166,373		40,361		444,670	651,404
Damiain Bonguiui	212,007			143,960	460,940	816,907
Michael Korkor	86,514		1,252		109,140	196,906
Ernest Saghui					19,800	19,800
Edmond Oven				46,360	87,200	133,560
Hivir Marco	12,359					12,359



ARIMAL
Timothy Worwor					11,530	11,530
Marie Denis					167,670	167,670
Moises Lazar	26,620			91,500	130,000	248,120
Antoine Dewa	213,908				109,600	323,508
Noel Sagul					27,750	27,750
Eliza Doriri					15,700	15,700

			TOTAL COMPENSATION			8,179,694"

As I have, said I consider that the Defendants acted in good faith in their negotiations and that the amount that was agreed upon between the Defendants and the property owners represented a proper amount of compensation for their losses. The Claimants have endeavoured to set their own scale of losses by adopting the Agriculture Compensation Policy. The letter of 23 May 2002 specifically disclaimed responsibility for the Department of Agriculture for the use of it except as an estimate in particular circumstances and in this case as there were no independent assessments I am of the view that with the effluxion of time the First Claimants' evidence is just ex post facto speculative reconstruction. There was no evidence that their subsequent claims were in any way based on records made at the time of the clearing in 1994 and one witness Mr. Bongvivi Pedro, who was only 14 years old at the time, was honest enough to admit that the paper containing the details of his family's crops etc. had been lost. I am satisfied that recompense for loss must be limited to the assessment, namely VT8,179,614. It would seem to me to be unrealistic and unjust for the Claimants in the constitutional proceeding to endeavour to establish any greater loss because I find as a fact that there was a full and final settlement of the amount of damages. If the Claimants had wished to press for a larger amount, they ought to have filed their proceeding in time and they have failed and neglected to do so.

However there is clearly a constitutional breach because the persons who lost property have not yet been recompensed. Accordingly I direct that the balance of the amount of VT8,179,614 paid into Court in Civil Case No. 175 of 2003 be now transferred to Civil Case No. 165 of 2002 and be distributed on a pro rata basis among the First and Second Claimants in accordance with the above assessment.

I do not find that in the circumstances the claims for exemplary damages have been made out in the constitutional proceeding. Although submissions were addressed to the Court about the nature of the clearing activities by counsel for the Claimants that was not borne out by the sworn evidence particularly against the Defendants and it has not been proved on the balance of probabilities that it was Government personnel who acted in the ways alleged. To the contrary, it seems that others who had some sort of a vested interest acted inappropriately and the Government cannot be held responsible for that. Even Mr. Michael Gorgor admitted under cross-examination that the Government did not threaten them but it was those who wanted the work to be done on that land and it is my finding that the Defendants acted in good faith throughout in negotiating the appropriate settlement for the loss and that their method of clearing cannot be criticized on the basis of the adduced evidence. I do not accept the evidence of Timothee Worwor as to the sacred yam but prefer the evidence of the Second Claimant. Mr. Timothee Worwor's evidence was in my view unreliable and imprecise as to where the clearing took place and I do not find that any sacred Yam was damaged or destroyed by the Defendants. I accept the preponderance of the evidence that neither the Third Party nor his father had planted any trees, crops or gardens. At that stage the Third Party himself had never even lived in the area.

In the circumstances of those findings, I direct that costs must lie where they fall. I am not prepared in the circumstances to award any interest because the original claim was filed very late and the Second Claimant applied to be joined even later.

In summary the claim for common law damages is dismissed as being out of time and I award the sum of VT8,179,614 to the Claimants to be distributed in accordance with the above assessment. As I have said, I find that the Third Party had no right to compensation at the time of the clearing, because he was not the declared custom owner and did not reside in the area and neither he nor his father had planted any trees or crops. The Third Party must indemnity the Claimants for any shortfall in their entitlement from the monies already paid to him by the Defendants.

The Defendants have already fulfilled their obligations by paying the VT8,179,694 in full but I direct that the Claimants and the Third Party must attend an enforcement conference at 9am on 26 July 2006 to determine how the Third Party will indemnity the Claimants. The Third Party must bring with him sufficient documents to enable him to give a fair and accurate picture of his financial circumstances and he must be prepared to say how he proposed to indemnity the Claimants.

Supreme Court of Vanuatu

Wokon v Government of the Republic of Vanuatu [2006] VUSC 25; CC 165 2002 (12 June 2006)