Sogari v Rajamma [2012] FJHC 1203; HBC36.2007 (19 June 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: HBC 36 of 2007

BETWEEN:

VILIAME SOGARI
[Plaintiff]

AND:

SHIU RAJAMMA s/o Kumar Sami
[1st Defendant]

AND:

NATIVE LAND TRUST BOARD
[2nd Defendant]

AND:

REGISTRAR OF TITLE
[3rd Defendant]

AND:

ATTORNEY GENERAL OF FIJI
[4th Defendant]

Counsel: Mr. Nepote Vere - for the Plaintiff
Maqbool & Co. - for the 1st Defendant
Ms. Raitamata - for the 2nd Defendant
Mr. Mainavolau - for the 3rd & 4th Defendant

Date of Judgment: 19th June 2012

JUDGMENT

1. This action before me is for assessment of damages.
   
2. The plaintiff was granted native lease number 26856 by the Native Land Trust Board (hereinafter referred to as the 2nd defendant) on 30.09.2003 and the plaintiff started cultivating sugarcane. However, the plaintiff was unable to harvest his crop since the 2nd defendant had issued another lease to the 1st defendant on 04.12.2003. The plaintiff alleged that due to the breach of the 2nd defendant's statutory and trusteeship duties he suffered loss and damages.
   
3. Therefore the plaintiff filed a Writ of Summons dated 13.07.2007 against the defendants seeking following relief:
   
   1. Special damages in the sum of $ 2300.00;
      
   2. General damages;
      
   3. Loss of past and future earnings;
      
   4. Exemplary damages; and,
      
   5. Costs.
      
4. On 6th of November during the pre-trial conference, the 2nd defendant admitted liabilities and the parties agreed for assessment as to the quantum of damages and costs that the 2nd defendant should pay the plaintiff.
   
5. The matter before me is for assessment of damages further to the admission of the liabilities by the 2nd defendant at the pre-trial conference.
   
6. At the Pre-trial conference the 2nd defendant agreed that it has issued two leases in respect of the land known as Soqosoqo Lot 14 i.e. one lease was issued to the 1st defendant and the 2nd one to the plaintiff.
   
7. At the hearing the plaintiff and two witnesses gave evidence.
   

Plaintiff's evidence:

8. The plaintiff stated that he suffered damages due to double leasing. He claims $ 2300.00 as special damages which includes travelling expenses from Labasa to Suva; accommodation and other expenses $600.00; travelling expenses from Suva town to NLTB $ 200.00.
   
9. The plaintiff alleges that he made an attempt to get the double leasing remedied but was not assisted by the 2nd defendant.
   
10. In terms of general damages the plaintiff asks past and future economic losses. The plaintiff also seeks exemplary damages and interest at the rate of 7%.
    
11. The plaintiff agreed to accept damages in lieu of his entitlement to his lease No 26856. The 2nd defendant had agreed to pay damages that the plaintiff may have incurred by reason of double leasing.
    

Special damages:

12. The plaintiff claimed $ 2300.00 as special damages for travelling expenses from Labasa to Suva and back to Labasa, which also includes meals and accommodation expenses.
    
13. The plaintiff failed to tender any document in proof of the expenses. Although he stated that he travelled to Suva by air on 5 occasions, no receipts or travel itineraries were produced to support the claim. In cross examination, he stated that he had been waiting since 2003 having gone to Labasa office more than 10 times and that is why he went to Suva to deliver his letters officially. Though cross examined, this evidence remained unchallenged.
    
14. Answering further, the plaintiff admitted that travelling by boat is cheaper than travelling by air but since he wanted to go to Suva quickly he chose to travel by air.
    
15. This action was filed in 2007. According to the statement of claim the plaintiff would have travelled to Suva between the periods of 2002-2007. Hence, one cannot reasonably expect that the plaintiff would have kept all the receipts and air tickets pertaining to his expenses and therefore, in the circumstances, even in the absence of any receipts, a sum of $ 2300.00 for travelling expenses, accommodation and meals would in my opinion be reasonable to award for the plaintiff.
    
16. Furthermore, the plaintiff claims an additional sum of $1714.30 as special damages he paid to the 2nd defendant to get his instrument of tenancy registered.
    
17. However, that amount was not pleaded in the statement of claim. The plaintiff submits that though it was not pleaded the 2nd defendant was aware of it.
    
18. But the 2nd defendant failed to produce any substantial evidence to that effect. Also, there is no other evidence to support the claim.
    
19. In British Transport Commission v. Gourley [1955] UKHL 4; [1956] A.C 185 Lord Goddard said:
    

"Special damage has to be specially pleaded and proved. This consist of out of pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation."

20. These bare statements are not sufficient when a person is claiming special damages. The court shall not be called on to assume that the plaintiff suffered such a loss. Nor should the court be asked to assess a figure in the absence of satisfactory proof of special damages. I therefore, disallow the plaintiff's claim for $ 1714.30.
    
21. The plaintiff called two witnesses, one of whom is an accountant and has been working at Fiji Sugar Corporation for 15 years. By referring to the page 17 and 18 of the agreed bundle of documents she stated that the farm mentioned in the document belonged to Shiu Rajamma Reg. No. 3162. She further stated that the figures provided by the FSC are correct and in 2003, sugarcane price per ton was $ 60.12.
    
22. The next witness for the plaintiff is Kanito, the Acting Senior Agricultural officer from the Ministry of Agriculture. He is a well qualified civil servant who involved in submitting reports to financial institutions to support farmers' applications for agricultural loans for last 15 years. He recognized the valuation report dated 03.01.2008 prepared by him. It was in the Agreed Bundle of Documents. That particular report marked as PE 3 was tendered as an exhibit.
    
23. The witness mainly relied on the FSC's record of tonnage of sugarcane produced in the land in issue to assess what the plaintiff's past and future economic losses were likely to be.
    
24. When the evidence of PW 3 is considered it appears that he relied on FSC's report of tonnage of sugarcane produced in the land in issue.
    
25. According to PE3, three methods have been used to assess the future economic loss that the plaintiff is likely to suffer as a result of him being deprived by the 2nd defendant of his lease land.
    
26. The 3 methods that have been used to assess the expected income are as follows:
    
    1. The average yield for the recorded 15 years as basis and projected for the 30 years term of Agricultural Land Tenancy Act (ALTA) lease multiplied against the average cane price for period mentioned (15 years)
       
    2. The average tonnage produced multiplied against the price of cane for 2006 as total cane price for 2007 is still be released by FSC and projected to 30 years, the term for an ALTA lease, or,
       
    100. The maximum annual cane production ever recorded on a single year which was in 1994 with a total yield of 414.55 tonnes multiplied against the highest cane price ever recorded for this farm which in 1998 of $ 81.79 tonnes.
         
27. Calculations using the abovementioned methods are as follows:
    
    • First method- average production (290.58) x average cane price for years on record ($53.37) x ALTA lease term (30 years) = $456,527.36.
      
    • Second method-average production (290.58 tonnes) x cane price for 2006 x ALTA lease term (30 years) = $462,029.16.
      
    • Third method-maximum cane produced for a single year (1994 which was 414.55 tonnes) x highest cane price ever recorded on a single year (1998 which was $ 81.79) x ALTA lease term (30 years) = $ 1,017,129.10.
      
28. It could be noted that the above calculations were done on the presumption that proper management is adhered to, there are no single climatic catastrophes and that the sugar industry will still be vibrant given the withdrawal of Sugar Preferential Price by the European Union.
    
29. The 2nd defendant also tendered a valuation report marked as DE1, which shows the sugarcane production increased every year from 2006 to 2009 and it shows that production for the next 30 years could have remarkably increased if the land continued to be fertilised as advised by the Fiji Sugar Corporation Ltd. field officers.
    
30. The general principle on which compensatory damages are assessed was stated by Taylor and Owen JJ. in Butler v. Egg and Egg Pulp Marketing Board [1966] HCA 38; [1966] 114 CLR 185 as follows:
    

'That principle is that the injured party should receive compensation in a sum which, so far as money can do so, will put him in the same position as he would have been if the contract had been performed or the tort had been committed.'

If a contract be profitable and is rescinded for breach, the profits lost and the costs actually and reasonably incurred in performance are proper subjects of compensation. If a contract be a loss contract, the costs actually and reasonably incurred in performance are the subject of compensation, but only to the extent that those losses would have been recovered had the contract been performed.'

31. In assessing the future economic loss the following passage by Lord Diplock in Mallett v.McMonagle (1970) AC 166 at 176 is of much assistance.
    

'The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides o the balance of balance of probabilities. Anything that is more profitable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.'

32. In light of the above authorities, I will consider the probable income that plaintiff could have generated had the double leasing was not done.
    
33. The only available and reliable evidence before this court which could be taken into account in assessing the future economic loss is the document marked as PE 3 tendered by the plaintiff's witness. The defendants failed to lead any evidence to counter PE 3. In the absence of any other evidence, court has no other option but to rely on PE3 in assessing the future economic loss.
    
34. The 2nd defendant failed to challenge the above method of calculation and also failed to present any expert opinion which could help to assess the loss of future income.
    
35. In PE 3, three methods of calculations of loss of future income could be seen and each method gave a different value as to the income that could be generated by the farm over the 30 years term given under ALTA.
    
36. However, it is not correct to assess the income in particular when it is derived from cultivation with total disregard to the likelihood of occurrence of natural disasters, reduction of harvest due to diseases and various other factors associated with the nature of the agricultural industry.
    
37. Therefore, it is my considered opinion that the calculation using the first method i.e. the average yield for the recorded 15 years as the basis and projected for the 30 year term of ALTA lease multiplied against the average cane price for the period mentioned (15 years) in the document 'PE 3' is the most appropriate and reasonable way to determine the loss of future income.
    
38. Hence, I assess $ 456527.36 as future economic loss and award the same to the plaintiff.
    
39. The plaintiff also pleaded in his statement of claim that he suffered mental anxiety because of the 2nd defendant's claim. The plaintiff in his evidence stated that he suffered hypertension because of the 2nd defendant's breach of duty. However, the plaintiff failed to tender any medical evidence to prove that he is having hypertension. Further, there is no evidence to establish any link between the second defendant's breach of duty and the plaintiff's alleged hypertension. I, therefore, disallow the claim for damages for mental anxiety.
    

Aggravated damages:

40. The plaintiff also pleaded aggravated damages. Aggravated damages are awarded when the conduct of the defendant or the surrounding circumstances increased the injury to the claimant, by subjecting him to humiliation, distress or embarrassment.
    
41. The second defendant clearly breached section 9 of the Native Land Trust Act when it leased the land in issue to the 1st defendant on 04.12.2002, despite the fact that the plaintiff and members of Mataqali had already informed the 2nd defendant on 07.11.2002 that the land should be leased to the plaintiff.
    
42. Needles to say that the plaintiff was subjected to an unfair treatment by the 2nd defendant. It is also clear that the 2nd defendant was in breach of its statutory and trusteeship duties to the plaintiff in particular when its employees dealing with the plaintiff's lease.
    
43. I, therefore award $ 4000.00 as aggravated damages.
    

Exemplary damages:

44. The plaintiff claims exemplary damages against the defendant. Exemplary damages may be awarded to a plaintiff when a defendant's conduct is particularly wilful, wanton, malicious or vindictive. The purpose of awarding exemplary damages is to punish the wrong doer and to act as a deterrent to others who might engage in similar conduct.
    
45. According to the amended statement of claim, the 2nddefendant issued an offer letter dated 16.04.2003 to the 1st defendant to lease the land in dispute when it had already given the plaintiff an offer letter dated 08.11.2002 to lease the same land. The 2nd defendant issued Native Lease No 26932 to the 1st defendant on 4.12.2003 to lease the land in issue after it already issued Native Leased No.26856 to the plaintiff on 30.09.2003 for the lease of the same piece of land. When the 2nd defendant received $ 3983.43 from the 1st defendant on 23.04.2003 for the lease of the land in issue it had already received $ 1479.17 from the plaintiff on 01.01.2004.
    
46. The above facts clearly demonstrate the corrupt and high handed practice of the officials of the 2nd and 3rd defendants. On 10.11.2005, the plaintiff wrote to the Registrar of Titles to cancel the lease of the 1st defendant. A copy of the said letter is annexed to the page 15 of the Agreed Bundle of Documents.
    
47. Further, the plaintiff had lodged a complaint with the police to investigate the conduct of the officials of the 2nd defendant who was instrumental in giving the same land on lease to the 1st defendant. Despite all these, the 2nd defendant waited almost 3 years to admit its liability.
    
48. Upon consideration of the above facts, I conclude that exemplary damages should be awarded to the plaintiff against the 2nd defendant. Accordingly, I award $ 10000.00 as exemplary damages.
    
49. The plaintiff also submitted that he is entitled to be compensated for losing his farm land and the dwelling house due to the breach of its duties by the 2nd defendant. The value of the house according to the report filed by the 2nd defendant is $ 30000.00. The plaintiff submitted that the value of the house would cost more than $ 100000.00 but no evidence was led by the plaintiff to that effect. Hence, I assess the value of the house in the sum of $ 30000.00 and award the same to the plaintiff.
    
50. Further, the plaintiff submitted that court should regard the lease land as a freehold land because after the expiration of the plaintiff's lease 2nd defendant cannot lease the land to another person who is not a member of the plaintiff's Mataqali.
    
51. However, merely because the land cannot be leased to a person other than a member of the plaintiff's Mataqali, it does not satisfy the required criteria to be considered as a freehold land. Therefore, I see no merits in that submission.
    
52. The plaintiff also submitted that since he lost a dwelling house his family had to pay a monthly rental of $ 300.00 a month to rent a similar house. However, the plaintiff did not plead damages under this head nor did he lead any evidence in support of that. Therefore, I am not inclined to grant damages for loss of rental income.
    

Interest:

53. The plaintiff pleaded interest of 7% on the total sum awarded by the court against the 2nd defendant. The plaintiff is entitled to interest under section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act which provides as follows:
    

In any proceedings tried in the High Court for the recovery of any debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

54. The above act was amended by the Law Reform (Miscellaneous Provisions) (death and Interest) (Amendment) Decree 2011. Consequent to the amendment the interest rate on judgment debt shall be 4% per annum from time of entering the judgment until the same shall be satisfied.
    
55. Therefore, I award interest on general damages and special damages at the rate of 4% per annum.
    

Costs:

56. The plaintiff is also entitled to costs. Considering the nature of the action and in particular the conduct of the 2nd defendant, I order that costs shall be taxed on indemnity basis.
    

Summary of awards:

General damages-Loss of past and future income-	$ 456527.36
Loss of house	$ 30000.00
Special damages	$ 2300.00
Aggravated damages-	$ 4000.00
Exemplary damages-	$ 10000.00

Interest on special damages and general damages: – 4% per annum from the date of filing of the action until the date of payment.

Pradeep Hettiarachchi
Judge

AT LABASA
19th June 2012