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Jimmy v Karie [2002] VUCA 6; Civil Appeal Case 3 of 2002 (26 April 2002)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

Civil Appeal Case No. 03 of 2002

IN THE MATTER of an Appeal by Willie Jimmy from Civil Case No. 117 of 2000
in the Supreme Court of Vanuatu being:

BETWEEN:

WILLIE JIMMY
of P.O.BOX 684, Port Vila,
VANUATU
Appellant

AND:

TOARA KARIE
of P.O.BOX 118, Port Vila,
VANUATU
Respondent

Coram: Chief Justice V.LUNABEK
Justice B. ROBERTSON
Justice D. FATIAKI

Counsels: Mr. Nigel G. MORRISON for the Appellant.
Mr. Jack KILU for the Respondent.

Hearing Date: 25th April 2002
Judgment Date: 26th April 2002.

JUDGMENT.

This is an appeal against the judgment of Coventry J. delivered on 21^st December 2001.

The appellant and respondent are owners of neighbouring land. The boundary fence was originally erected in the wrong place but now it has been put right. The appellant’s cattle and fowl strayed on numerous occasions onto the respondent’s land and damaged and destroyed crops and trees. The respondent shot one of the appellant’s cattle. The next morning, the appellant and some of his men came to the respondent’s house at Anaburu, Port Vila and assaulted him.

The trial Judge has summarised the plaintiff/respondent claims in this way:-

1. Trespass for the defendant’s occupation of the plaintiff’s land due to the fence being erected in the wrong place.

2. Trespass for the trees planted by the defendant on the encroached land.

3. Trespass by the defendants stock and fowl onto the plaintiff’s land, causing damage to crops.

4. The assault and battery upon the plaintiff.

Firstly, the trial Judge awarded nominal damages of 20,000 Vatu for the trespass up to July 1999. Further, from that time until June/July 2000 when the boundary fence was fully put right, the learned trial Judge awarded full damages. On the encroached land, His Lordship found an assessment for loss of use for that year to be 25,000 Vatu.

Secondly, His Lordship found that the Plaintiff/Respondent has the benefit of the trees planted by the Defendant/Appellant on the encroached portion. He then, declined the plaintiff/respondent’s claim to this effect.

Thirdly, he found the plaintiff/respondent has proved a loss caused by the straying of the defendant’s animals. On the face of the evidence before him, he found that the plaintiff/respondent has shewn that at least two thirds (2/3) of what he claims against the defendant/appellant has been proved. His Lordship, therefore, awarded the sum of Vt. 838,937.

Finally, he dismissed the respondents claim based on assault and battery for the reasons as set out in the judgment.

Initially there was an appeal against all the orders but it is now restricted to the following findings:

1. The learned Judge found the defendant liable to the plaintiff in the amount of Vatu 838,936 having found the plaintiff had shewn that at least two thirds of the claimed amount proved against the defendant.

The ground of this appeal is that:-

1. There was no or insufficient evidence to support the learned Judge’s findings.

It is submitted for the appellant that on the face of the evidence,

(i) Neighbour Simbolo and appellant, Jimmy had stock which entered the respondent’s property and destroyed crops.

(ii) The identity of the stock (whether then belonged to Simbolo or Jimmy) was, at least on occasion, unable to be established.

The trial Judge noted that the evidence of Willie George is clear. This witness states:

“Mi save identifaem buluk blong Mr. Jimmy from oli kat mark long olgeta”, (paragraph 4 of his affidavit). This witness also said “mi witnessem fulap taem we buluk mo faol blong Mr. Willie Jimmy insaed long property blong Mr. Karie mo spolem ol fruit trees mo ol garden crops we mi nao mi planem blong Mr. Karie”.

The trial Judge said the respondent accepted that Mr. Simbolo’s cattle also strayed onto his land and caused problems.

Mr. Karie replied “other neighbour, Simbolo, his cows would come in but only at times. Simbolo’s bullocks did not cause the damage stated here. They had been one before but not up to the garden”.

The trial Judge accepted the fact that the respondent has been bringing the fact of the appellant’s straying livestock to the notice of the appellant for a long time, since 1998, yet the trespasses by the appellant’s animals continued. In December 1999, the respondent shot dead a trespassing cow of the appellant.

The respondent set out the trees and crops he says were damaged by the appellant’s animals. (See at paragraph 12 and Annexure D of his affidavit of 21 June 2001). The trial Judge accepted the respondent’s figures for the value of the crops of Vatu 1,258,405.

His Lordship found that the respondent has proved a loss caused by the straying of the appellant’s animals.

The trial Judge concluded that whilst a Court must not guess, a reasonable figure can be awarded on the face of the evidence. He found that the respondent has shewn that at least two thirds of what he claims against the appellant has been proved. He therefore awarded the sum of Vatu 838,937.

We draw attention to the observations of this Court in ANZ Bank (Vanuatu ) Ltd v. Francois Marchand Civil Case No. 12 of 2000 (unreported) where the Court in dismissing a similar ground of appeal said, at PP. 4/5:

“The alleged deficiencies (in the evidence justifying the award of damages) were not squarely put to the respondent ........ and in effect deprived the respondent of any opportunity to call additional evidence to address the alleged deficiencies.

The problem with such an approach to litigation is that it has the potential to lead the Court, and the opposing party to think that the possible deficiencies are not being relied upon by the party who fails to raise them during the trial. This has the effect of leading the other party into a false sense of security. Once the nature of a claim by a party is identified to the court and supported by some evidence, even though that evidence may be scant and imprecise, it is for the other party to challenge it fairly and squarely and to put to the opposing party what that party proposes to rely upon. After all, even in the adversarial system of justice, the court is concerned to do justice according to the true facts of the case”.

In similar vein in the present case the respondent’s claim was based entirely on an assertion that it was the appellant’s cattle and fowls and no body else’s that had caused the damage to his crops and trees. It was no part of his claim that some of the damage could be attributed to the cattle of another neighbour Simbolo.

It was incumbent on the appellant in those circumstances in the event that he wished to attribute to Simbolo some of the blame for the damage caused to the respondents crops, to either joint Simbolo as a party to the proceedings or call affirmative evidence in support of whatever portion of the alleged damage he claimed is attributable to Simbolo’s cattle. This the appellant failed to do and it is too late now to seek this Court’s intervention.

We are of the view that under the stated circumstances and the evidence before him, the trial Judge is entitled to apportion the respondent’s claims in the way he did.

We are not impressed by the arguments and submissions advanced on behalf of the appellant.

There is no basis to interfere. The appeal is dismissed. The respondent is entitled to costs.

Dated at Port Vila this 26^th day of April 2002.

BY THE COURT

Justice B. ROBERTSON
Justice D. FATIAKI
Chief Justice V. LUNABEK