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Kuckry v Republic Vanuatu [2015] VUSC 73; Civil Case 111 of 2008 (12 June 2015)

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


CIVIL CASE NO. 111 OF 2008


BETWEEN:


NAKAT KUCKRY and TANGAP KAPEN
Claimant


AND:


THE REPUBLIC OF VANUATU
First Defendant


AND:


RICHARD BUCKLEY
Second Defendant


Coram: Justice Mary Sey


Counsel: Jack I. Kilu for the Claimant

Lennon Huri (SLO) for the First Defendant


JUDGMENT


Introduction


  1. The Claimant’s Claim is for:
    1. The registration of lease Title No.11/0121/015 in the name of Nakat Kuckry;
    2. Damages for trespass, unlawful eviction, wrongful arrest and false imprisonment.
  2. That part of the claim relating to the registration of lease of land has been resolved and it will not form part of the case anymore.
  3. The case is confined now to Nakat Kuckry’s causes of action alleging trespass, unlawful eviction, wrongful arrest and wrongful detention against the First Defendant only.

Background Facts


  1. Mr. Tangap Kapen had entered into some business arrangements with the Second Defendant and during the course of their business transactions Mr. Kapen ended up owing the Second Defendant the sum of VT800, 000. The Second Defendant then commenced court proceedings in Richard Buckley v Tangap Kapen Civil Case No.92 of 2002 to recover the money from Mr. Kapen.
  2. By Enforcement Orders dated 19 November 2004, the Supreme Court ordered Mr. Kapen to pay the sum of VT30,000 per month on the last day of each month, commencing on 30 November 2004, to George Vasaris & Co. Trust Account No: 2654 until the judgment debt and interest thereon at the rate of 10% from 2002 was paid in full. Mr. Kapen failed to comply and Mr. Buckley obtained an Enforcement Warrant dated 9 March 2005 which authorized the seizure of Mr. Kapen’s lease Title No.11/0121/015 for sale by the Sheriff.
  3. As a result, Mr. Kapen made arrangements with his younger brother Mr. Nakat Kuckry to assist him in paying off the debt. A written Agreement was prepared by George Vasaris & Co whereby Mr. Kuckry arranged to take over Mr. Kapen’s monthly repayments to Mr. Buckley in return for Mr. Kapen’s lease Title to be transferred to Mr. Nakat Kuckry.
  4. The Agreement was entered into on 17 June 2005 and Nakat was to make 48 monthly payments of VT30,000 which should be completed in the month of July 2010. Mr. Buckley agreed to withhold execution until payments were completed and the first Enforcement Warrant dated 9 March 2005 was suspended. In the meantime, Nakat moved his family onto Tangap Kapen’s property and they resided there.
  5. Despite the fact that Nakat was continuously making his payments to George Vasaris and Co, Mr. Buckley somehow obtained a second Enforcement Warrant in order to seize the property and sell it to recover his debt. The Warrant which was issued on 21 November 2006 specifically named Tangap Kapen as the Enforcement Debtor, and directed the Sheriff and Police to take possession of Lease Title No.11/0121/015 and sell it by auction.

The Claim


  1. The Claimant submits that on 30 November 2007, the Police entered onto the property and arrested him and forcefully took him down to the Police Station where he was locked up in Cell No.6. Upon being released from the Police cell the next day, he was told by the Police to appear before the Magistrates’ Court on 4 December, 2007 without any charges being laid against him. He did appear before the Court on that date, but was advised by the Court that there was no case against him.
  2. The Claimant further submits that whilst he was locked up in Cell No.6, the Police trespassed onto the property and packed up his family’s belongings and loaded them onto a Police truck. His wife and four children – one, 14 years old, two twin boys both 11 years old, and his 4 year old son were forced out of the property by the Police and cautioned to stay out of the property. The family’s belongings were taken by the Police to a relative’s house (Simil Johnson’s house) and carelessly left lying around in his yard. The Claimant says his cats, dogs and pigs were simply dumped in the yard where the pigs died and the dogs and cats went astray and got lost. Rain damaged the family’s other personal properties, worth a total of VT293, 000.
  3. It is further submitted that Nakat had to relocate his family to Fresh Water Area, at Serah’s rent house for the rent fee of VT30,000 per month. During their stay at the rent house from 30 November 2007 until September 2008, Nakat spent a total of VT270,000 on rent charges.
  4. The Claimant claims that he is entitled to be compensated by the First Defendant as follows:
(a) Damages for trespass -
VT1, 500, 000
(b) Damages for unlawful eviction -
VT3, 500, 000
(c) Damages for unlawful arrest and false imprisonment -
VT2, 500, 000
(d) Exemplary/Common Law Damages
VT1, 500, 000


General Damages
(i) Damaged personal properties including Lost/stolen animals
(ii) Damaged house/stolen garden crops
(iii) Rent house charges at Fresh Water Area
(iv) Water bill incurred by security men

TOTAL :
VT293, 000
VT123, 206
VT270, 000
VT 13, 056
--------------------
VT9, 699, 262
===========

The Defence


  1. While conceding that the Enforcement Warrant was executed by the police officers nine (9) days after it had expired, the First Defendant contends that the Claimant’s arrest was made in accordance with the law in that the Second Defendant had lodged a complaint alleging trespass and unlawful entry.
  2. The First Defendant submits that the police officers suspected upon reasonable grounds that the Claimant had committed a cognisable offence and as such arrested the Claimant pursuant to section 12(1) and the Schedule of the CPC. It is further submitted that the police officers acted in good faith and that there is no evidence to show that the officers acted with malice or unlawfully. The First Defendant further contends that these being cognisable offences, the police did not need a warrant of arrest prior to arresting the Claimant and it is submitted that the subsequent detention of the claimant was not unlawful.
  3. On the issue of damages, It is submitted that even though the police officers executed the warrant after it had expired, the First Defendant cannot be held liable for the loss of some of the properties as alleged by the Claimant to have been damaged in the course of the eviction and that the Claimant is not entitled to any of the reliefs or damages he claims.

The Evidence


  1. Much of the evidence dealt with the background facts set out above. The Claimant filed 4 sworn statements - one by the Claimant himself dated 3rd February 2009; one by his wife Eunice Nakat dated 6th September 2010; one by Tangap Kapen dated 10th February 2009 and one by Simil Johnson dated 6th September 2010.

The Defendant filed one sworn statement of police officer David Bong dated 28th September 2010 in support of the Defence.


The Issues


  1. The issues posed for the Court’s determination were identified by counsel in their written submissions as follows:

(e) Whether the First Defendant is liable to pay damages for:


(i) the Claimant’s damaged personal properties;

(ii) the damages caused by the security men to the Claimant’s residential house;

(iii) expenses for the rent house at Fresh Water Area.


Discussions


  1. I now consider and determine together the issues in (a) – (e) above.
  2. It is clear to me that there was really no reason for the Second Defendant to have obtained the second Warrant because Nakat was continually repaying the outstanding debt. In fact, Nakat’s last payment was made at the end of October 2007 whereas the second Warrant was obtained way back on 21 November 2006 just over a year after they had entered into the Agreement on 17 June 2005.
  3. The said Warrant was to lapse on 21 November 2007 but it never got executed until 30 November 2007 which was nine (9) days after it had already lapsed. This is conceded by the First Defendant. As such, this Court finds that the police officers’ actions to execute the warrant after it had expired were unlawful.
  4. On the issue of trespass, I note from the evidence that at the material time, the property was not yet registered in the name of the Claimant. However, he and his brother Tangap Kapen, who was the registered lessee of the property, had already put in place an arrangement to effect the transfer of ownership to the Claimant who was already residing on the property with his family.
  5. In the case of Fittlers Investment Ltd v David Abel and Others Civil Case No.234 of 2006 dated 14th March 2008, Tuohy J. in dealing with an unregistered occupant of a lease title, read an extract from a New Zealand case called De Lunfectionary Ltd v. Wgton [1958] NZ8] NZLR 272 in which the Court referred to an even earlier case called Rewi [1917] NZLR 479. Tuohy J. then remarked ated at paragraphs 11 – 13 as follows:lows:

“11. In that che reent was in possession of land subject to the Land Land Transfer Act under an unregistered lred lease. The Judge said that that person in possession of the land under an unregistered lease was in possession with a complete title in equity. His equitable right was a right to the possession of the land during the term of the lease, and was a right which prevailed under the rules of equity notwithstanding the fact that the lease and the transfers had not been registered. He had, by virtue of this complete equitable right, the right to sue for any wrongful injury sustained by him as fully as if he was holding the property under a registered instrument. Neither the lease nor the transfers of the lease while they remained unregistered passed any legal estate in the land, but they conferred upon the respondent an unquestionable right to maintain an action against a wrongdoer.


    That is enough in itself to answer the raised by Mr. Daniel. It is simply not correct in law. A person in possession of land unde under an unregistered lease or sublease is entitled to maintain an action for trespass against someone who without right comes onto the land.

. In . In actual fact to maintain an action for trespass it is not even necessary to have an unregistered lease or a sublease. Isufficient to have de facto possession of the land even if that is wrongful..............&#...”


23. In this present case, the Claimant’s counsel has referred me to this Court’s judgment dated 27 January 2015 in the case of Mamelin v Republic of Vanuatu Civil Case No. 31 of 2013. In considering the issue in that case, I referred to the PNG case of Bob v Stettin Bay Lumber Company Ltd [2008] PNGC 120 (22 August 2008) where the Court held that:


“To succeed in an action for trespass to land, a plaintiff must prove five things:


(a) the defendant entered land, either directly (in person) or indirectly (e.g by propelling an object or a third party on to the land); and

(b) the defendant did so by some intentional act;

(c) the defendant had no lawful authority;

(d) the plaintiff was in lawful possession of the land; and

(e) the plaintiff’s enjoyment of the land was interfered with.


  1. I am inclined to accept the Claimant’s submission that all the five elements of trespass are to be found in this present case. In the circumstances, I find that trespass was in fact committed by the police upon their entry onto the Claimant’s property on 30 November 2007. I am also satisfied that the Claimant had an equitable right over the land and I find that his eviction pursuant to an expired Warrant was unlawful.
  2. Mr. Kilu referred me to the Court of Appeal judgment in Warte;v Republic of Vanu Vanuatu [2013] VUCA 10 where the Court ad VT1, 000, 000, 000 to Mrs. Dornic for trespass. Counsel then submitted that the Claiin this present case would be entitled to damages for tresptrespass in the sum of VT1, 500, 000 given the fact that it was obviously clear to the Police that they were acting upon the authority of an expired Enforcement Warrant, and yet they proceeded to trespass upon the Claimant’s property.
  3. I consider that an award of damages of VT1, 000, 000 covering the trespass and unlawful eviction would be consistent with the approach of the Court of Appeal in Warte.
  4. It is also the Claimant’s case that his arrest and subsequent imprisonment by the Police in Cell No. 6 was unl. However, the First DefenDefendant contends that the Claimant’s arrest was made in accordance with the law in that the Second Defendant had lodged a complaint alleging trespass and unlawful entry.
  5. The said complaint made by Mr. Richard Buckley was recorded by the Police in the register of complaints which is annexed as “DB3” to the sworn statement of David Bong (Exhibit D1). The “complaint statement” reads:

“Richard John Buckley Trespass & Unlawful Entry

Tassiriki Estate Hemi lodgem complain akensem Nakat Kuckry

blong Tanna from hemi Trespass iko stap live long

haus blong hem long Agatis area.


  1. In paragraph 5 of the sworn statement of David Bong, he deposed to the fact that the complaint was made by Mr. Buckley at the Police station on or about 29 November 2007.
  2. It is clear from the evidence before the Court that the Claimant was arrested and subsequently detained by the Police on 30 November 2007. That is not in dispute.
  3. The bone of contention between the parties is as to how the arrest was made. On the one hand, the Claimant submits that his arrest was simply based on the authority of the expired Enforcement Warrant which required the Sheriff to take vacant possession of the land and sell it by auction. Whereas, on the other hand, the First Defendant contends that the Claimant’s arrest was made in accordance with the law in that the Second Defendant had lodged a complaint alleging trespass and unlawful entry which is a cognisable offence and the police officers acted upon that complaint.

32. Section 12(1) of the Criminal Procedure Code Cap 136 provides:


"12. Arrest by police officer without warrant

(1) Any police officer may, without an order from a judicial officer, orant, arrest any person whon whom he suspects upon reasonable grounds of having committed a cognisable offence."


  1. The Schedule to the CPC provides that the offence of unlawful entry is an offence for which the Police may arrest without a warrant. Judging from all the evidence adduced, I am of the view that the Claimant's arrest and subsequent detention was made in accordance with the law and pursuant to the complaint that had been lodged by the Second Defendant alleging trespass and unlawful entry. There is no suggestion that the arresting officers knew that they were acting unlawfully. All ths required of them atem at that stage was to make an arrest pursuant to the complaint that had been lodged. Thereafter, the provisions of S.18 of the CPC would apply.
  2. Section 18 of the CPC provides:

"18. Detention of person arrested without warrant


(1) Subject to subsection (2) when any person has been taken into custody without a warrant for an offence other than intentional homicide or any offence against the external security of the State, the officer in charge of the police station to which such person shall be brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate court within 24 hours after he has been so taken into custody, inquire into the case. Unless the offence appears to the officer to be of a serious nature the officer shall release the person on his signing a written undertaking to appear before a court at a time and place to be named in the undertaking; but where any person is kept in custody he shall be brought before a court as soon as practicable.


(2) The officer in charge of the police station may release a person arrested on suspicion of committing any offence, when after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with a prosecution for the offence."


Exemplary Damages


  1. The Claimant submits that there are aggravating circumstances in this case which call for an award of exemplary damages. In his closing submissions, counsel urged the Court to consider the following circumstances:

(a) There was no basis for obtaining the Enforcement Warrant at all;

(b) The Enforcement Warrant clearly did not name the Claimant and his family at all as the persons to be evicted from the property;

(c) The Enforcement Warrant had clearly lapsed on the date of its execution and despite this being very obvious from the warrant itself, the Police still proceeded to execute it;

(d) The property was registered to the Claimant's brother, Tangap Kapen at the time of the execution, but the Claimant was lawfully occupying it with his family through an arrangement with his brother Tangap. [The Claimant had an equitable right].

(e) The Police knowingly trespassed (with a lapsed warrant) and knowingly and forcefully removed the Claimant's entire family and belongings from their lawful residence;

(f) The Police knowingly arrested the Claimant without any arrest warrant and knowingly and falsely imprisoned the Claimant for a total of 25 hours and 10 minutes while they trespassed onto his property and unlawfully and forcefully remove all his family members and all their belongings;

(g) The Claimant was never charged with any offence and yet was told to appear in Court, which he did, but was told there was no case against him.

(h) The forceful removal was not only against the Claimant, but also the Claimant's full family which included his four children aged 14, 11 (twins) and 4 years old.

(i) The whole family was greatly traumatised by the incident.


  1. In Banga v Waiwo [1996] VUSC 5, the Court stated that:

"In order to justify the award of exemplary damages, it is not sufficient to show merely that the defendant has committed a wrongful act. The conduct of the defendant must be high handed, insolent, vindictive, or malicious, showing contempt of the plaintiff's right, or disregarding every principle which actuates the conduct of common decency. In particular, the defendant's persistence in the act with knowledge, and the language accompanying it, as well as his conduct at the trial of the action itself, are elements to be considered."


37. Invariably, exemplary damages are a matter of special consideration and have generally been regarded "as a mark of public censure against excessive misconduct. They are not to unjustly enrich a party but, rather, are symbolic of the public's indignation." See John Tuink Salamon v The Independent State of Papua New Guinea [1964] PNG 6.



  1. I have considered the actions of the First Defendant in this case and suffice to sat I have not found elementsments of high handedness, insolence, vindictiveness or malice in their conduct. Therefore, I make no award for exemplary damages. Besides, the award of VT1,000,000 which I have made in paragraph 26 above already covers most of the circumstances alluded to by the Claimant's counsel under the head of exemplary damages.
  2. In paragraph 72 of the Claimant's Sworn Statement, he lists the family's personal properties which he alleged had been damaged or lost through the actions of the Police. The list of personal properties is also confirmed by Eunice Nakat and Simil Johnson in their respective sworn statements and the Claimant claims damages in the sum of VT293, 000. The Claimant further claims that when he and his family were forced out of their property the Sheriff then placed private security men on the property and that they damaged the house, ate their chickens and harvested crops from their garden. The total damages claimed are in the sum of VT123,206 plus a water bill of VT13,056. The Claimant also claims damages in the sum of VT270,000 for total rent charges incurred during the period his family stayed at Serah's rent house at Freswota.
  3. It is pertinent to note that the Claimant has not tendered any receipts or supporting documents in respect of the above claims for damages to enable me make an award. In Bonham-Carter v Hyde Park Hotel Ltd, (1948) 64 T.L.R 177 at page 178 Lord Goddard C.J had this to say:

"On the question of damages I am left in an extremely unsatisfactory position. Plaintiffs must understand that if they bring actions for damages it is for them to prove their damages, it is not enough to write down the particulars and so to speak, throw them at the head of the Court saying; this is what I have lost I ask you to give me these damages. They have to prove it."


  1. In this present case, the Claimant has failed to prove his damages and in light of this, I would adopt the words of Lord Goddard C.J and accordingly make no award for the damages claimed.

Interest on Damages?


42. The Claimant also claims interest at the rate of 5% per annum to commence from the date of filing the Claim (8th July, 2008) until all sums due are fully settled. I have considered this in light of the recent Court of Appeal decision in Republic of Vanuatu v Patunvanu [2015] VUCA 9; CAC 11 of 2015 (8 May 2015) and I decline to award interest on the damages award of VT1,000,000 which I consider appropriate.


43. Jud. Judgment is hereby entered for the Claimant in the sum of VT1,000,000 with costs on a standard basis to be agreed or taxed.


D aTED at Port Vila, this 12th day of June, 2015.
BY THE COURT


M.M.SEY
Judge

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