Attorney-General v Teenga [2002] KICA 2; Civil Appeal 09 of 2001 (12 August 2002)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 9 of 2001

BETWEEN:

ATTORNEY-GENERAL IN RESPECT OF
THE MINISTRY OF HOME AFFAIRS & RURAL DEVELOPMENT
Appellant

AND:

NEI KAKAI TEENGA & NEI RARA TEENGA
Respondents

Coram: Casey JA
Hardie Boys JA
Tompkins JA

Counsel: David James for Appellant
Banuera Berina for Respondents

Date of hearing: 9 August 2002
Date of judgment: 12 August 2002

JUDGMENT OF THE COURT

[1] This is an appeal against an award of compensation for damage to a house at Betio owned by the Respondents and taken by the State on 7 August 1998, for which compensation was first assessed on 30 June 2000 by the Learned Chief Justice at an agreed figure of $28,404.81 put forward by the State’s valuer, being the replacement cost less depreciation. The State was unwilling to pay this figure and two years later returned the property to the owners, but in the meantime had effectively demolished the building. The case came before His Honour again on 19 November 2001 to have compensation for this damage assessed under s18 of the Acquisition of Lands Ordinance, which reads:

Provided however that the owner of the land and all persons entitled to any estate or interest in the land shall be entitled to receive from the Republic all such costs as may have been incurred by them by reason or in consequence of the proceedings for acquisition and compensation for the damage, if any, which they may have sustained by reason or in consequence of the notice of intended acquisition.

[2] At that hearing the only valuation evidence came from the State, its valuer having accepted the earlier figure of $28,404.81, which was adopted by His Honour, and after making an adjustment for the remaining concrete floor, and an allowance for loss of use, he reached a total of $28,850.81 as compensation for the damage, and gave judgment accordingly. There were lengthy written submissions about the binding effect of counsels’ agreement in the earlier case to accept the State’s valuation, but as this was the figure given by the State’s own valuer in his evidence at the subsequent hearing, we do not think any question of estoppel arises. It was open to His Honour to accept the evidence of that figure if he thought it appropriate.

[4] Mr James submitted that compensation for damage to the house should be assessed on the basis of what it would cost to restore it to its former condition, making use of whatever material was available from the demolition. His valuer understandably showed little enthusiasm for this approach, and his evidence made it clear that the method adopted of taking the assumed replacement cost less depreciation was a standard technique in assessing compensation for total destruction. It takes little imagination to envisage the problems confronting an owner required to cobble together a complete house from the wreckage of its demolition and any new material required. There may be cases where this might be feasible, but we do not see it as a rational basis for compensation here, particularly in the absence of any evidence of what material would be needed or is still available, and the cost of such restoration. In the light of the evidence given by the Appellant’s own expert witness, His Honour was entitled to adopt the approach he took in fixing compensation for the damage to the house, and we confirm the figure he arrived at.

Result

The appeal is dismissed with costs to the Respondent to be taxed if the parties cannot agree.

Casey JA
Hardie Boys JA
Tompkins JA