Rave v Vuroese [2009] VUSC 125; Civil Case 10 of 2008 (9 October 2009)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(CIVIL JURISDICTION)

Civil Case No. 10 of 2008

BETWEEN:

MR VARI RAVE, KAMI TUAVOKE, TAVI MELE
AND JOHN TITI AND NOEL TIEYA
of South Santo.
First Claimants

AND:

SEREMELE TANOMALUM, BEN JAMI NAVIRA,
LULU TAVOUSIMOLI, TELEPOE TAUKA, LAJEMOLI VULESI,
KONE TOAVAKE, CHIEF SAI VANUA
all of South Santo.
Second Claimants

AND:

DAVID VUROESE & FAMILY AND
MANITY JIMMY & FAMILY
of Sarakoru Village, South Santo.
Defendants

Mr Justice Oliver A. Saksak

Mr Saling N. Stephens for the Claimants
No appearance by the Defendants

JUDGMENT

1. The Claimants obtained judgment in their favour by judgment published on 20th May 2009. The Claimants called evidence on 10th November 2008 after which an oral judgment was delivered. Parties were given 14 days each to file submissions as to quantum of damages. The Claimants filed their submissions on 20th August 2009. The Defendants have not done so and the Court dispenses with their submissions.

2. As indicated in the judgment of 20th May 2009, the Defendants have never at any time in the course of this proceeding filed any proper responses and/or defences. They have taken and shown a negative approach to the matter and have not made any attempt to be part of the proceeding at any time. That attitude is nothing but a discourtesy to the Court. People who do not wish to participate in a proceeding when they are named as parties, without any valid cause or excuse, can expect to have judgment entered against them in their absence.

3. So it is with the Defendants in this case. The Claimants claims are uncontested and unchallenged. The Claimants have proven by evidence of their witnesses that the Defendants had trespassed, caused damage to their gardens and garden crops and caused unlawful conversions of properties. As such, the Claimants are clearly entitled to damages. And they are also entitled to orders of possession as sought in their claims. The only issue is the amount of damages to be awarded.

4. Each of the Seven (7) Claimants claiming as the Second Claimants claim damages under three separate heads –

(a) Damages for Loss or conversion of Properties;

(b) Damages for trespass; and

(c) Exemplary damages.

5. In the Court's opinion, damages should be allowed only under two heads –

(a). Damages for Loss which in a sense is special damages; and

(b). General damages which essentially covers damages for trespass and exemplary damages.

6. And each of the Second Claimants claim separately for trespass at VT500, 000 and exemplary damages for VT600, 000. This is not appropriate in the circumstances. It is sensible and appropriate to simply add the two figures together and then to divide the total by seven (7) as follows:-

VT500, 000 + VT600, 000 = VT1, 100,000 ÷ 7 = VT157, 143.

7. Each of the Second Claimants is entitled to as follows:-

(i) Seremele Tanomalum –
Damages for loss –	VT182.630
General damages –	VT157.143
Total -	VT339.773

(ii) Benjaming Navira –
Damages for loss –	VT31.370
General damages –	VT157.143
Total -	VT188.513

(iii) Lulu Tavousimoli –
Damages for loss –	VT230.580
General damages –	VT157.143
Total -	VT387.723

(iv) Tilepoe Tauka –
Damages for loss –	VT9.450
General damages –	VT157.143
Total -	VT166.893

(v) Lajemoli Vulesi –
Damages for loss – VT264.130
General damages – VT157.143
Total -	VT421.273

(vi) Kone Toavake –
Damages for loss –	VT3.750
General damages –	VT157.142
Total -	VT160.892

(vii) Chief Sai Vanua –
Damages for loss –	VT17.800
General damages –	VT157.143
Total -	VT174.943

The overall total amount of compensation the Claimants are entitled to is the sum of VT1, 840,010.

8. There is therefore entered judgment in favour of the seven (7) Claimants named as Second Claimants in this proceeding for the sum of VT1,840,010 against the Defendants.

9. The Claimants sought jointly or severally two further reliefs –

1. For an order that the Defendants deliver up vacant possession of the land known as Vakaria within 30 days from the date of judgment; and
   
2. For an order that the Defendants, their servants and agents be prohibited from re-entering the said land after delivery of same to the Claimants.
   

10. Clearly, the Claimants have established trespass on land by the Defendants. As such, they are entitled to the orders they sought.

11. The formal Orders of the Court are –

1. The Claimants are entitled to judgment.
   
2. The Defendants will pay damages to the Second Claimants in the total sum of VT1, 840,010.
   

100. The Second Claimants will divide the sum of VT1, 840,010 amongst themselves in the manner set out in paragraph 7 of this judgment.
     

4. The Defendants will deliver up vacant possession of Vakaria Land within 30 days from the date of this judgment.
   
5. The Defendants by themselves, their servants and agents are hereby restrained from re-entering Vakaria Land after delivery of same to the Claimants.
   
6. The Defendants will pay the Claimants' costs of and incidental to this action to be agreed, or taxed by the Masters.
   

DATED at Luganville this 9th day of October 2009.

BY THE COURT

OLIVER A. SAKSAK
Judge