Cokanasiga v Fiji Hardwood Corporation [2014] FJMC 1; Civil Action 08.2012 (6 January 2014)

IN THE FIRST CLASS MAGISTRATES COURT
OF FIJI SUVA
CIVIL JURISDICTION
Civil Action No.-08/2012

BETWEEN:

NEORI COKANASIGA of Mead Road, Housing Authority Block No.7, Nabua, acting on behalf of Mataqali Nareba of Galoa, Serua
PLAINTIFF

AND:

FIJI HARDWOOD CORPORATION of Garden City, Raiwai
DEFENDANT

Plaintiff in person
Ms. Rakai for the Defendant

JUDGMENT

1. The Plaintiff filed a writ of summons against the defendant seeking following orders inter alia:
   
   1. Judgment for the sum of $27,000
   2. Penal and Exemplary damages
   100. Costs
        
2. The defendant filed his statement of defence on 16 April 2012 denying the claim and praying that the claim to be dismissed with costs.
   
3. The plaintiff based his claim on the basis that the defendant caused damages reburying the trenches in their native reserves. Whilst denying these the defendant contended that with the agreement of all parties they buried the trenches and also they have paid the damages as an out of court settlement.
   
4. For the plaintiff two witnesses gave evidence. PW1 was Romanu Tuibau, the spokesperson of Mataqali Nareba and he stated that the land is scared ground and in 2010 the defendant dug on this land. Due to that the land was damaged and they went and met with the officials of the defendant's company where they asked for compensation and for the defendant not to enter the land again. Later they found that the defendant had entered again to that land.
   
5. In cross examination he said there were meetings with the defendant but he did not have the minutes of them. He also said he was not present in the first meeting and $27,000 was paid by the defendant for digging.
   
6. PW2 was Taitusi Cama who was involved in the meeting between the parties about this issue. He attended only one meeting. The plaintiff also produced some photos which were marked as P-1.
   
7. For the defendant also two witnesses were called. First witness was Mr. Vucago a road supervisor for Fiji Hardwood. He said that they had a meeting with the Mataqali on 26 February 2010 and in that compensation was discussed there. The plaintiff was present with some other members from the Mataqali and another meeting was held again about finalizing the payment. The witness was present on both these occasions and after that $27,150 was paid as compensation. Also they entered in to a memorandum of understanding dated 29 April 2011 to pay compensation.
   
8. Second witness for the defendant was Mr. Semi Buaserau a plantation manager for Fiji Hardwood and he said members of Mataqali wrote a letter to the defendant claiming $40,000 as compensation. Later they came to a settlement about the amount through memorandum of understanding (Defendant exhibit-03) and before that they reburied the trenches. In the first meeting dated 26/02/2010 the parties agreed to rebuild the bank mouth and bury the trenches.
   
9. The defendant closed the case after calling this witness and both parties filed closing submissions after that.
   
10. The plaintiff in their submission said that the defendant failed to rectify the problems as agreed in the meeting on 26/02/2010 and because of that they suffered damages. The plaintiff also enclosed an environmental report prepared by one Sairusi Tinocovu showing the damages.
    
11. The defendant has objected to this report and I also agree with this. This was never disclosed during the hearing nor mentioned through evidence of the plaintiff's witnesses. Therefore this Court can't consider this report as part of evidence in this case .
    
12. The defendant in the closing submission denied owing this amount as they have already paid $27,000 as final settlement and also submitted that the plaintiff failed to prove the damages through their witnesses.
    
13. I have considered the evidence as well as the documents presented in the trial. From the evidence I find that in a meeting attended by both parties on 26/02/2010 the defendant agreed to pay compensation and to bury the trenches. The plaintiff with some other members attended this meeting.
    
14. The defendant paid $27,150 as compensation on 07/09/2011 to the Mataqal. The plaintiff contended that this was only for digging and they should be paid damages for reburying the trenches.
    
15. But both parties signed a memorandum of understanding (D-03) dated 29 April 2011. The agreement reads as follows:
    

Memorandum of Understanding

A mutual Agreement made this 29th day of April 2011 between Mr. S. R. Buaserau, The Plantation Manager Viti Levu for and on behalf of Fiji Hardwood Corporation Limited (on one party) and Mr. Neori Cokanasiga (on behalf of the other party) Mataqali: Nareba of Yavusa; Sayake, Galoa, Serua.

WHERE BY IT IS MUTUALLY AGREED

➢ That Fiji Hardwood Corporation Limited is not responsible for the Claim

1. Loss of Land Compensation Claimed by Mataqali: Nareba of Galoa, Serua. The Tawavatu creek diversion was due to the 1982 flooding that washed away part of the Forestry barrack and the whole unestablised workers quarters from the very same site now being claimed
   

➢ 2. The Severance Claim – ($8,500.00) and 3. The Injurious Affection Claim ($2,850.00) which are both connected to Claim number 1, has nothing to do with Fiji Hardwood Corporation Limited has mentioned above

➢ 3. That The Fiji Hardwood Corporation Limited will pay the sum totaling up to $27,150.00 as Compensation Claimed by Mataqali: Nareba.

➢ The above Claim Loss of Land ($1,500), Severance Claim ($8,500.00) and Affection Claim ($2,850.00) totaling up to $12,850.00 minus from the Original Claim of $40,000 gives us the Agreed amount of $27,150.00.

➢ The agreed amount will be paid through The Native Land Trust Board for Payment to the other party.

➢ Now that this Case has been settled once and for all; we will continue to work together with cordial understanding and good harmony.

16. From the above agreement it is clear that this amount ($27,150) was paid as final settlement (point 6 of the agreement). Also according to evidence reburying of trenches took place on 29 January 2011 well before this agreement was signed. Therefore the plaintiff was aware about that. But the plaintiff did not object to this agreement nor did not want to add any clauses about the reburying or claiming damages about that.
    
17. Also even though the plaintiff is claiming $27,000 as damages they failed to substantiate this claim. In Khan v Vinod Patel Compnay Ltd [2008] FJHC 102 Singh J stated:
    

"Plaintiffs who bring actions for substantial damages must prove their damage. They cannot simply write down figures and assert that this is their loss and expect the court to grant those damages or loss. They have to prove their loss. The court looks at the circumstances and the nature of the case and if greater detailed are warranted, the court will insist on that: Bonham Carter v. Hyde Park Hotel – (1938) 6 TLR 177; Radcliffe v. Evans – (1986) 2 QB 524 at 532. There are situations where assessment of damages is largely speculative but the court does its best to arrive at a figure if it is satisfied that real damage has being suffered".

18. Therefore for the mentioned reasons above I decide that the Plaintiff has failed to prove this claim. Accordingly I dismiss the Plaintiff's statement of claim with a cost summarily assed of $300.00.
    
19. 28 days to appeal.
    

06 January 2014

H.S.P.Somaratne
Resident Magistrate, Suva