Tikomaimaleya v Southern Forest Products (Fiji) Ltd [2003] FJHC 16; Hbc0570j.2000s (25 July 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 570 of 2000s

Between:

TAVAGA TIKOMAIMALEYA
Plaintiff

and

SOUTHERN FOREST PRODUCTS (FIJI) LIMITED
Defendant

S. R. Valenitabua for the Plaintiff
W. Clarke and Ms. S. Sorby for the Defendant

JUDGMENT

The Plaintiff is a member of and sues on behalf of Mataqali Vunimoli the traditional owners of an area of forest known as Coupe 45 at Wainaleka Serua. The Defendant (Southern) is a substantial logging company.

In March 2000 Southern received rather a special order. It was for the supply of six large Dakua logs and 1 large Damanu log. These logs were required by the Brigham Young University which wished to use the logs to construct a traditional canoe to be placed in the Polynesian Culture Centre at Hawaii.

On 28 March 2000 Southern invoiced Tuione Pulotu, master canoe builder, care of Peter Lee who was apparently his agent in Fiji. The invoice (Document 9) amounted to F$28,240 and was calculated at the rates of $380 per cubic metre of Dakua and $300 per cubic metre for Damanu.

On 18 August 2000 Peter Lee wrote to the Minister seeking a special licence to export the logs (Exhibit P2). Ordinarily the export of logs is not permitted.

On 23 August 2000 the Conservator of Forests wrote to the Permanent Secretary agreeing to the request (Exhibit P3).

Southern’s Managing Director Anil Dutt Sharma told me that the logs were paid for in about October or November 2000 and Southern then went about looking for them. It is not disputed that the logs required were of a very considerable size and not altogether easy to find.

On 17 January 2001 an export licence for the logs was issued (Exhibit P4).

The previous 17 April 2000 the Plaintiff and Southern entered into a logging contract (Document 11) over Coupe 45. This was the first such contract which had been negotiated by the Plaintiff.

On 11 September 2000 Southern submitted a Coupe Level Logging Plan for Coupe 45 to the Forestry Department and to the Native Land Trust Board.

On 19 September 2000 the NLTB advised the Plaintiff in a letter address to Southern (Document 19) that, subject to the conditions set out in the letter, the Board had approved the issuance of a logging licence. The term of the licence to be issued was for 12 months commencing on 21 September 2000. It was not disputed that the advance payments required by the letter were paid by Southern.

On 26 September 2000 the NLTB wrote to the Forestry Department advising them that approval had been given for the issuance of a logging licence (Document 22). It is however not disputed that no actual logging licence (known as a logging right licence) was ever in fact issued (see Document 30).

On about 28 October 2000 Southern entered Coupe 45 with bulldozers and chainsaws. According to the counter claim about 0.8 kilometres of roading was cut into the Coupe but according to Southern’s logging manager the road really amounted to little more than the cutting of tracks with a bulldozer blade towards landings 1, 2 and 3 (see Document 17, map 2). It is not however the roading with which this case is primarily concerned rather it is what happened during or in course of the roading and what happened in the course of this roading was that eight large trees, seven Dakua and one Damanu were cut down and removed from the Coupe. Document 24 reveals the exact size and the day that they were scaled, 30 October 2000. As can be seen from Document 24 no logging right licence number is quoted since no logging licence had been issued.

The Plaintiff heard about the removal of the trees. He told me that he had been told that the trees had been cut down to fulfil the Hawaii order. He knew that the trees were valuable.

On 2 November 2000 the Plaintiff wrote Document 25 to the Forestry Department. He complained that Southern had removed the trees from Coupe 45 without his knowledge and without a licence to do so. He asked the Defendant not further to process the issuance of a licence to Southern. He explained that he was pursuing a quest for compensation from Southern for the “illegal” felling of the trees from the Coupe.

On 17 November 2000 the Forestry Department formally advised Southern that the issuance of the logging right licence for Coupe 45 had been postponed.

The Plaintiff’s case is that Southern had no licence to remove the logs and therefore had no right to do so. It claims damages, but as will later be seen it is not exactly clear on what basis these damages are sought.

Southern’s case is put in the alternative. It says either that the trees were removed during the course of advance roading which is an established industry practice and which was either specifically or by implication permitted by paragraph 13 of the contract of 17 April. Alternatively, it is said that the trees were felled on a prepayment basis which is also an accepted industry practice.

I heard much evidence and argument on these questions and the various issues are fully canvassed in the careful closing submissions filed by both counsel.

In my view the general position is clear. Section 8 of the Forest Decree 1992 prohibits the felling or extraction of timber and the clearing of land in forest reserves, native reserves and native land unless authorised:

“under this Decree by a licence or otherwise ....”

Taking into account Section 8 (2) and Section 12 I find that the words “or otherwise” have no application to the facts of the present case. In my view therefore the removal of trees and the clearing of land (not being confined to activities consistent with Section 21 of the Decree) is prohibited prior to the issuance of a timber licence, also known as a logging right licence or a forestry right licence.

I also find however notwithstanding the evidence of Plaintiff’s witness 2 Timoci Vulivusoniasi that the Conservator of Forests had issued clear written instructions that advance roading was prohibited before the issuance of a timber licence in fact, (as I was told both by Southern’s logging manager and its managing director) such advance roading commonly takes place, usually during the period between the approval of a licence being granted and the actual licence being issued. The question however is whether that finding (which also extends to the practice of pre payment) affects the issue between the parties. In my view it does not.

As I see it the contract between the parties (Document 11 – a rather poorly prepared document in all the circumstances) is quite clear. Under paragraph 12 “logging operations” were to commence two weeks after the logging licence had been issued. There is no provision for “logging operations” to commence before the licence was issued and while a deviation from the strict terms of the contract to allow such “logging operations” to commence both before the licence had been issued (notwithstanding that such operations would, on the face of it, have been contrary to the Forest Decree) might have been agreed between the parties there was no evidence at all to suggest that this was in fact the case. I do not accept, as suggested by Ms. Sorby that advance roading was necessary in order to enable Southern to commence “logging operations” within two weeks of the commencement of the contract. In my opinion the term “logging operations” on its ordinary natural meaning includes advance roading and does not exclude tree felling. Even if the first two weeks of the contract period consisted entirely of putting in roads the Plaintiff would have no cause for complaint since such roading would, in my opinion, have amounted to “logging operations”. While I do not doubt that had no substantial trees being removed during the course of Southern’s pre-licence incursion into Coupe 45 this matter would not have come to court, I do not find anything to suggest that the Plaintiff had authorised or impliedly consented to any “logging operations” commencing before the commencement date clearly set out in the contract.

As can be seen from the Statement of Claim the Plaintiff’s claim is not that Southern, by removing these trees breached the contract between the parties but that the removal was simply unauthorised removal of valuable trees from the Plaintiff’s land before the contract had begun to operate. Southern’s case which is that the Plaintiff is only entitled to the commission value of the removed trees because he had agreed to pre-contract removal is in my view unsustainable. Whether or not the trees were removed in the course of advance roading is in my opinion not decisive of the main issue at all which is whether the Plaintiff is entitled to the full value of the removed trees. In my view he is.

Much of the evidence was also directed at attempting to establish that the removed trees were in fact exported to Hawaii. On balance, I think they probably were not since is seems fairly clear that they were slightly too small. Whether or not they were in fact exported to Hawaii however seems to me to be another question which is not necessary to resolve in order to ascertain the value of the Plaintiff’s loss. As I see it, the motive for removing the trees or their destination are really quite irrelevant to their value. According to Document 9, already referred to, Dakua has an open market value of $380 per cubic metre while Damanu is slightly less valuable at $300 per cubic metre. Presumably this price incorporates the cost of felling, removal and scaling but these trees having been removed, as I find, without the permission of the Plaintiff these costs should in my view be absorbed by Southern.

Apart from the loss of the felled trees the Plaintiff also advanced a very substantial claim for the whole of the commission which would have been earned had Coupe 45 been legally and completely logged by Southern. This claim, however, appears to overlook a claimant’s duty to mitigate his loss. As I understand it, Coupe 45 remains unlogged, in other words awaits logging. The Plaintiff cannot claim the loss of logging profits and then proceed to earn those profits all over again from subsequent logging.

I have found that Southern was not entitled to remove these trees from Coupe 45 either in law or, with the Plaintiff’s consent, in anticipation of a licence being issued under some form of accepted industry practice. In these circumstances Southern only has itself to blame for the Plaintiff’s repudiation of the contract. Accordingly Southern’s counter claim must fail.

There will be Judgment for the Plaintiff for an amount precisely to be calculated by counsel applying the formula set out in Document 9 to the trees, the exact dimensions of which are set out in Document 24. I will hear counsel as to interest and costs.

M.D. Scott
Judge

25 July 2003