Tarilongi v Gaua [2008] VUSC 76; Civil Case 17 of 2005 (19 November 2008)

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

CIVIL CASE No.17 OF 2005

BETWEEN:

BENUEL AND ANNIVA TARILONGI
Claimants

AND:

ABRAHAM GAUA
Defendant

Coram: Chief Justice Vincent LUNABEK

Counsel: Mr Daniel Yawha for the Claimants - present
Mr John W. Timakata for the Defendant – not present

ASSESSMENT OF DAMAGES

The Claimants are husband and wife. They reside in Vila and are registered owners of a Lease Title No. 04/2611/001 ("the property") situated at Fanafo area, Santo.

The Defendant resides at Sarakata area, Luganville, Santo and was the former owner of the above mentioned property. The Claimants filed a claim against the Defendant on 14 February 2005. They claim for:

1. Damages at VT5,288,000 and continuing

2. Interests of 5% per annum

3. Costs and any other order deemed just by the Court.

Sometime on 8 July 2004, the Claimants purchased the said property from ANZ Bank (Vanuatu) Ltd through a loan in the amount of VT15,125,000 and established a crop and livestock farm called "the business".

Since 8 July 2004, the Claimants notify the Defendant to vacate their property as the Defendant prevented them access and full possession of the said property in order for them to operate their business.

By reason of the Defendant’s conduct, the Claimants claim they are entitled to charge the cost of the Defendant’s cattle grazing on their property since 8 July 2004. They estimate their claim at 2,340,000 based at a minimum of VT10,000 per day for a total of 750 cattle of the Defendant.

The Claimants claim also that they had suffered estimated revenue loss for poultry sales, peanut sales, maniocs sales and yams sales and they assessed their loss at VT2,569,000.

The Claimants claim further for disbursement costs as a result of trying to get access and possession of their property. They claim an amount of VT 379,000.

The Defendant filed a defence on 27 October 2005. The Defendant does not dispute the fact that the Claimants purchase the property the subject of this case, but disputed the procedures employed by ANZ Bank (Vanuatu) Limited (the Bank) in selling and transferring the property to the Claimants.

The ANZ Bank (Vanuatu) Limited is not cited as a party or Third Party in this case. There is no dispute that the Claimants are the owners of the land lease title No.04/2611/001 ("the property").

The Claimants file sworn statements in support of their claim. The Defendant file sworn statement in support of his defence. The matter was set for hearing on 20 February 2007. At the trial, the Defendant and his counsel did not turn up.

The Court proceeded to hear the claim of the Claimants in the absence of the Defendant. The Claimants relied on the sworn statements of Mr Tarilongi filed 8 June 2006 and 30 June 2006.

I read and consider the defence and the sworn statements filed by the Defendant in support of his defence.

I find and I am satisfied that the Claimants are entitled to some damages based on the sworn statement of the Claimants. The next question is what type of damages and how much?

I bear in mind of the total amount claimed. I bear in mind of the continuing effect of the loss and damages occurring which must be more than the total amount of damages claimed in the claim. In the assessment exercise, I make some disallowance to mitigate uncertainty and the unforseen circumstances. The Claimants are entitled to:

(1) Rental charges for grazing of cattle assessed at VT2,500,000

(2) Loss of revenues: 2,500,000

(3) Expenses for disbursements: 379,000

The assessment is made based on material evidence contained in the sworn statements of Mr Tarilongi filed 8 and 30 June 2006 in support of the claim.

The judgment is entered for the Claimants in the sum of VT5,379,000 at 5% interest per annum (from the date of filing of claim to date of judgment. The Claimants are entitled to costs to be agreed or assessed. Enforcement conference date: Tuesday 2 December 2008 at 8.00AM o’clock.

DATED at Port-Vila this 19th day of November 2008

BY THE COURT

Vincent LUNABEK
Chief Justice