Lawac v Republic of Vanuatu
JUDGMENT
1. This case has traversed quite a long and winding road.
2. Yvan Lawac filed an original claim on 31 July 2015 in a representative capacity for Robert Ruru, Nordan Lawac, Lasario Lawac, Elson Klem, Florent Klem, Jean Philip Vetony, Julien Remy , Sylvestre Vertony, Antanas Vertony, Hernando Paniel, Paolo Lawac and John William as the claimants against the Republic of Vanuatu, as the only defendant.
3. Mr Tom Joe Botleng acted for the claimant at the time. He applied for leave to amend the claim in May 2016. Leave was granted. Counsel filed the amended claim on 17 July 2016.
4. Counsel applied for further amendment in August 2017. In paragraph 11 of the Amended Claim the Claimant pleaded that they were relying on Article 53, 6 (1)(2) and 5 (1)(1)(b), 1 (c) and (1)(6) of the Constitution.
5. The Attorney General filed a strike out application on 17th June 2017. At the hearing of the application Mr Botleng consented to removing paragraphs 11 and 12 (b) of the pleadings. The balance of the pleadings were maintained.
6. The claim is for general damages as follows:
a) For unlawful arrest at VT 500,000 each
b) For unlawful imprisonment at VT 500,000 each
c) For police brutality and battery at VT 1,000,000
d) For pain and suffering at VT 2,500,000
e) For malicious prosecution at VT 400,000
f) Special damage for costs of defending the criminal action at VT 250,000 each.
g) Aggravated damages at VT 250,000 each
h) Exemplary damages at VT 250, 000 each
i) Interest at 5% at VT 3,107,500
j) General exemplary damages for Chief John William and Paolo Lawac at 300,000.
The total amount claimed is VT 65,593,500.
7. The Attorney General fled an amended defence to the amended claim on 17th August 2017 denying liability and counter-claimed against the claimant for damage to the police vehicle to be assessed and exemplary damages at VT 1,000,000.
Evidence
8. The claimants relied on the evidence of the claimants by sworn statements of Paolo Lawac and John William dated 6 May 2016, of Yvan Lawac, Lazario Lawac, Jean Philip Vertony, Sylvestre Vertony, Atanas Vertony, Nordan Lawac and Florent Klem dated 7 March 2016, of Hernado Paniel and Julien Remy dated 14 March 2016, and of Robert Ruru and Elson Klem dated 18 March 2016.
9. Out of the 13 claimants only Lawac Paolo, John William, Yvan Lawac and Hernando Paniel gave oral evidence in addition to their sworn satements. Yvan Lawac’s evidence was only part-heard and he sought leave to attend a Tribunal hearing on Malekula. His evidence is therefore incomplete.
10. As for the balance of Hernando Paniel’s statements the Court allowed it into evidence on 8th September 2020 but without the medical reports relied on as annexures. Mr Aron objected to these on the basis that the medical doctor who made the reports did not depose to any sworn statements confirming he had examined the claimants and made the reports. Mr Aron submitted these were hearsay evidence which should not be accepted. Counsel relied on Rule 11.6 which states:
“11.6 A sworn statement must be filed and served on all other parties to the proceeding:
(a) if the court has fixed a time, within that time; or
(b) for a sworn statement to be used during a trial, at least 21 days before the trial; or
(c) for a sworn statement that relates to an application, at least 3 days before the court deals with the application.”
11. Rule 11.7 (1) provides that a sworn statement that is filed and served becomes evidence in a proceeding unless the Court has ruled inadmissible. In light of this rule the medical reports annexed to the sworn statements of the claimants are inadmissible as hearsay, however the balance of their sworn statements are allowed into evidence.
12. The defendant relied on the evidence by sworn statements of Steve Tete dated 25/08/17, of Ronnie Hinge dated 20/3/17, of Maccarthy Hava dated 25/8/17, of Cook Thompson, dated 25/08/2017, of Jean kalo dated 25/8/17, of Edmond Williams dated 25/03/017, of Joe Hendry Tawi dated 27/3/017, of Mary Sandy dated 20/3/017, of John Tete dated 28/3/17, of Kalkau Tor dated 28/3/17, of Jacques Yaput dated 23/3/17 and of Jean Pierre Tiopang dated 27/3/2017, of Jack Kanas dated 25/8/17 and of Emile Bong dated 28/08/17.
Agreed Issues
13. For the claimants’ claims the agreed issued are:
a) Whether or not the claimants were arrested and detained unlawfully?
b) Whether or not the claimants were maliciously prosecuted?
c) Whether or not the claimants were assaulted?
d) Whether or not the claimants were entitled to damages?
14. For the defendant on their counter-claim, the issues are:
a) Whether or not the claimants damaged public property?
b) Whether or not the Defendant is entitled to damages?
Submissions
15. Mr Nalyal filed late submissions on 24 February 2025 as to the quantum of damages based on the evidence by sworn statements of the 13 named claimants, and on the case authorities of Republic v Patunvanu [2015] VUCA 9, Patunvanu v Republic [2014] VUSC 6 and the Dismissal Order dated 11 October 2013 issued by the Magistrate in PP v Yvan Lawac & ors in CC 13/451. Counsel submitted that on the basis of those evidence and the case authorities the claimants were entitled to general damages for unlawful arrest, unlawful or false imprisonments, police brutality and battery, pain and suffering and malicious prosecution. Counsel submitted also that each of the claimants was entitled to special damages, aggravated damages and exemplary damages. Finally Counsel submitted that each claimant was entitled to interest of 5% on those damages.
16. The Defendant filed its written submissions first in time on 7th July 2023. Relying on sections 12 and 18 of the Criminal Procedure Code Act [ Cap 136] and the case authorities of Mamelin v Republic [2015] VUSC 1 George v Sandy [2013] VUSC 180, Kuckry v Republic [2015] VUSC 73, Republic v Emil [2015] VUCA 16, Republic v Togagi [2016] VUCA 45 and Republic v Patunvanu [2015] VUCA 9. Based on these Mr Aron submitted that all the issues raised in relation to allegations of unlawful arrest and detention, malicious prosecution, assault and entitlement to damages should be answered in the negative, and that the claims be dismissed with costs.
17. On the counter-claim of the defendant, Mr Aron submitted that judgment be entered for the defendant for the relief sought with costs on an indemnity basis. This is because the Defendant had made a generous offer of settlement but the claimants had refused to accept the sums or amounts offered.
Discussion
18. First the Court regrets the delay in delivering this judgment in this case which is not deliberate or intentional but due to circumstances following.
19. The change of claimant’s lawyers, Mr Tom Joe Botleng who initially started the proceedings for the claimants and ceased acting. Then Mr Eric Molbaleh stepped in and continue with the case and attempted to reach a settlement but it was his clients who turned down the offer made by the defendant . Mr Molbaleh ceased acting on 6th October 2022 and Mr Andrew Bal acted from 9 October 2022 until 9th November on 2022 when he ceased to act. Mr Nalyal came on the scene but only to file written submissions on behalf of the claimants. He began acting from 2nd December 2022 when he filed in formal notice.
20. For the defendants Mr Sakiusa Kalsakau started off as defence Counsel for the defendant but subsequently left the Attorney General’s Office on private practice. Eventually Mr Sammy Aron took carriage of the case.
21. Then there was the delay in filing of written submissions attributed to the claimants who should have filed their submissions first in time. They did not do so until 24 February 2025 but this was some 18 months after the Republic had filed its written submissions on 7th July 2023.
22. In any event the Court appreciates Counsel for both the claimants and the defendant for their written submissions albeit late. It is those submissions that have assisted me to formulate this judgment on the evidence and the annexures presented.
Duty and Standard of Proof
23. On the main claims the claimants have the duty of proof on the balance of probabilities. And on the counter-claim it is the defendant which has the duty to prove their claims on the balance of probabilities.
Issue 1- whether or not the claimants were arrested and detained unlawfully
24. The evidence Paolo Lawac and John William was that they took Yvan Lawac, Nordon Lawac and Lazario Lawac to the Police station at 7:45am on 28 August 2013. Lazario Lawac, and Yvan Lawac confirmed this in their sworn statements. Therefore I find that Nordan Lawac, Lazario Lawac and Ivan Lawac were not arrested by the Police. Their claims for unlawful arrest is therefore not substantiated and are accordingly dismissed.
25. The evidence of Police Officers Steve Tete, Edmond Williams, Jean Kalo, John Tete and Emile Bong all confirm that all the other claimants were arrested either at Bladinere, Teouma, Freshwater or at the Police Station. Their evidence confirm that these arrests were made following complaint made by Officers Jean Pierre Tiopang, PC Hinge and others who had attended to the scene in the early hours of 18 August 2013 when they were obstructed from performing their duties, were physically assaulted and their police vehicle was kicked and stoned with a rock. The evidence of Macathy Hava and Cook Thompson confirmed the claimants were arrested and cautioned before their statements were taken.
26. The Police attending the scene was made after a call complaining about loud music and noise caused by the claimants celebrating a marriage of their relatives. A scuffle arose as a result of the Police giving orders that the music be stopped.
27. Section 12 of the Criminal Procedure Code Act provides the Police Officers to arrest without a warrant. It states:
“ARREST BY POLICE OFFICER WITHOUT WARRANT
12. (1) Any police officer may, without an order from a judicial officer, or warrant, arrest any person whom he suspects upon reasonable grounds of having committed a cognisable offence.
(2) Without prejudice to the generality of subsection (1) a police officer may without a warrant arrest –
(a) any person who commits a breach of the peace in his presence;
(b) any person who wilfully obstructs a police officer while n the execution of his duty, or who has escaped or attempts to escape from lawful custody;
(c) any person whom he suspects upon reasonable grounds of being a deserter from the police or defence forces;
(d) any person whom he finds lying or loitering in any highway, yard or garden or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit an offence or who has in his possession without lawful excuse any offensive weapon or housebreaking implement;
(e) any person for whom he has reasonable cause to believe a warrant of arrest has been issued.”
28. Further, section 19 of the Public Order Act [Cap 134] provides the police with a power to arrest without a warrant where an offence has been committed, or where he has reasons to suspect an offence is about to or has been committed.
29. Section 7 of the Public Order Act prohibits meetings after 11 O’clock in the night, unless a special permit has been sought and granted by the Minister.
30. The evidence of PC Jean Pierre Tiopang was that they arrived on the scene and he asked the chief whether they had a licence permitting them to celebrate beyond 11 O’clock in the night up to 1:30am the next morning. Apparently there was no evidence by the chief ( Paolo Lawac) showing they had such a licence.
31. There is also a control of Nocturnal Noise Act [ Cap 40] that prohibits singing, shouting, playing of musical instruments and sounding of motor horns after 9:00pm until 5:00am. But this is restricted to a distance of 2 kilometres of the town limits of Port Vila and Luganville.
32. In the claimants’ case there was a complaint about loud music and noises at 1:30am in the early hours of 18 August 2013. There were complaints about obstructing the Police for carrying out their lawful duties. And there were complaints about physical abuse, assaults and damage to the Police vehicle showing offences having been committed. These were sufficient and adequate grounds for the Police to arrest these claimants without warrants. As such all their claims in relation to their allegations of unlawful arrest are not made out and are accordingly dismissed.
33. Section 18 of the Criminal Procedure Code Act provides for detention of persons arrested without warrants for a period of 24 hours except for offences of intentional homicide or any offence against the external security of the Republic.
34. From the evidence, the claimants were arrested at different times from 11:00am until 4:00pm on 18 August 2013 except for Yvan Lawac, Lazario and Nordan Lawac who went to the Police Station at or about 8:00am. They were held in police custody until they were taken to the Magistrates Court on 19 August 2023 and released about 4:30pm. I find the period of their detention was less than 24 hours prescribed by law. And I find their detentions were lawful. Accordingly their claims for unlawful detention also fails.
Issue 2: whether or not the claimants were maliciously prosecuted
35. The claimants relied on the dismissal order dated 11 October 2013 whereby the Court below dismissed the charges of obstructing Police Officers, Intentional Assault and Damage to Property against the claimants.
36. The test of malicious prosecution is well established in Republic v Patunvanu [2015] VUCA 9. To establish this tort is no easy task. The claimants must show:
a) The proceeding must have been instituted or continuing
b) The prosecution must have acted without reasonable or probable cause.
c) Prosecution must have acted maliciously, and
d) The proceeding must have been unsuccessful that the proceeding must have terminated in favour of the claimants
37. The dismissal was for reason of non-attendance and non-compliance with the orders of the Court by Prosecution, that is to say on procedural grounds and not on substantial or merits of the case. The Court below did not make any findings that favoured the claimants ( as defendants then). Guilt has remained undetermined to this day.
38. The claimants have a duty to show that when Prosecutions laid the charges against them on 19 August 2013 they had no reasonable and probable cause to do so, and that is no easy task. If the claimants could prove this element, then they could also prove malice. But in my considered view the claimants have not shown that Prosecutions acted without reasonable and probable cause, and as such they have also not proved malice. Accordingly the claimants’ claims under this head also fail and are dismissed.
Issue 3- Whether or not the claimants were assaulted?
a) Assaults at the scene at Bladiniere
39. Paolo Lawac’s oral evidence was that he saw PC Ronnie Hinge assault Hernando Paniel that night. As a result he said his son Yvan Lawac assaulted PC Ronnie in return. He also said Yvan Lawac assaulted PC Jean Pierre Tiopang that night.
40. PC Ronnie Hinge in his sworn statement said he only slapped Hernando on his face. He said he did so inself- defence because Hernando had taken his stance to fight him first. He was aggressive and disorderly ignoring the instruction that they stop the music. PC Ronnie Hinge also confirmed in his sworn statement that Yvan Lawac had punched him on the head. He said the other boys too joined in the fight. He said the boys swore at the Police Officers and one of them took a stone and wanted to throw the stone at the Police vehicle.
b) Assaults at the Police Station
41. The claimants allege in their respective sworn statements that they were assaulted by Police Officers during their detention at the Station and that as the result, they sustained physical injuries, for which they all claim damages.
42. Yvan Lawac’s evidence is that Police Officers Ronnie Hinge, Steve Maralau, Emile Bong and John Tete were involved in the assaults on himself, his father Paolo Lawac, John William, Lazario Lawac, Mathias Lawac, Sylsvestre Vertony, Jean Philipe Vertony, Atanas Vetony, Hernando Paniel, Robert Ruru, and Norden Lawac.
43. Atanas Vertony’s evidence confirms Yvan Lawac’s evidence. Sylvestre Vertony and Jean Philipe Vertony’s evidence also confirm those names involved.
44. Forent Klem’s evidence names Fredy and Roger Michu being involved in the assaults on him. And Robert Ruru’s evidence shows Steve Masolip Tamau being involved in assaulting him upon his arrest at his house at Namburu Sesevi.
45. From the defendant’s witnesses, Steve Tete admitted to slapping some the claimants with the palm of his hand because he was angry at their actions during the previous night to their collegues, acknowledging he was wrong and made an apology. But it was his evidence also that some claimants already had injuries before they were arrested. John Tete’s evidence also confirms this fact.
46. Jean Pierre Tiopang’s evidence was that Yvan Lawac assaulted him on his right eye and that he saw Nordan Lawac pick up a stone and threw it at the Police Vehicle, hitting the door. Mary Sandy’s evidence confirms the assault by the claimant on PC Ronnie Hinge and Jean Pierre Tiopang. She also saw rocks being thrown at the Police vehicle.
47. From the evidence there was evidence of assault by the Police officers on the claimants and also by the claimant’s or some of them on the Police officers and their vehicle. But the extent of their injuries cannot be ascertained because the medical reports the claimants wanted to rely on were not admitted into evidence because the doctor who made the report did not file any sworn statement to confirm the reports. That is one difficulty.
48. The other difficulty is also a procedural one and this goes to the heart of the pleadings of the claimants’ claims. The original claim filed and the amended claim filed on 17 July 2016 omitted to name Steve Tete, Ronnie Hinge, John Tete, Emile Bong, Fredy and Roger Michu and the Police Commissioner as separate defendants in this proceeding.
49. Further the amended claim with the pleadings omitted to plead negligence and breach of duty against the Police Commissioner and his officers.
50. Furthermore the claim as amended omitted to plead vicarious liability against the Police Department and the Republic for breach of duty by its officers in the course of their employment.
51. Due to these omissions, I find that the claimants’ claim lack the causation or the cause of action upon which they could sue successfully to entitle them to the damages that they have sought in their claims and proceeding. The fourth issue of damages is therefore answered in the negative.
52. Accordingly all their claims in this proceeding must fail and I so order that all their claims be dismissed in their entirety.
The Counter Claim
53. I deal now with the defendant’s counter-claim. The first issue is whether or not the claimants damaged the Police vehicle?
54. The evidence of Jean Pierre Tiopang as confirmed by Leirip Wabaiat were that Nordan Lawac threw a large stone at the Police vehicle hitting the side door.
55. PC Jacques Iaput’s sworn statement deposes that he took photographs on 2 September 2013. That was 15 days after the alleged stoning and kicking on 18 August 2013. It would have been different if the photographs were taken immediately on 18 or 19 August 2023. To wait until 2 weeks later, there is no evidence that the vehicle was not in use during the period of two weeks due to the damage. That is one difficulty.
56. The other difficulty is that the photographs annexed on pages 1, 2, 3 and 4 are dated on the top right hand as 9/03/2013 meaning 9th March 2013. These were taken some six months earlier before the incident alleged on 18th August 2013.
57. Further, if according to the evidence a large medium size stone was thrown at the door of the vehicle by a claimant using his right hand, the marks shown in the photographs are inconsistent with the damage that would have been caused by a large stone thrown at it, using the right hand.
58. For those reasons alone, I find the damage alleged not proved. Accordingly the defendants are not entitled to the reliefs they seek. Their counter-claims fail and is dismissed.
The Results
59. The claims of the claimants fail in their entireties and are dismissed.
60. The counter-claims of the defendants also fail and are hereby dismissed.
Costs
61. In the circumstances of the case, costs must lie where they fall. There will therefore be no order as to costs. Each party will bear their own costs.
DATED at Port Vila this 3rd day of June 2026
BY THE COURT
Hon. Justice Oliver A Saksak