Attorney General v Koriri [2007] KICA 20; Civil Appeal 02 of 2007 (30 July 2007)

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

Civil Appeal No 2 of 2007

BETWEEN

ATTORNEY GENERAL IN RESPECT OF
DIRECTOR OF LANDS
Appellant

AND

TIANTA KORIRI
Respondent

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Counsel: Birimaka Tekanene for appellant
Stephen Earl for respondent

Date of Hearing: 25 July 2007
Date of Judgment: 30 July 2007

JUDGMENT OF THE COURT

INTRODUCTION

1. This is an appeal against a decision assessing compensation. Pursuant to an order of this Court given in LA 4/2000 the High Court was directed to compensate the respondent "for any detriment, inconvenience or loss, that she can show she suffered or any other proper head of compensation she can establish".

2. In a judgment given on 18 January 2007 the Chief Justice assessed the compensation at $25,000. The Attorney General now appeals that judgment.

THE JUDGMENT

3. The Chief Justice noted that "none of the evidence presented was satisfactory. I have had to do the best I can to establish the facts on which to found an assessment. That has meant wielding a very broad axe".

4. The only witness for the respondent assessed the area of land at approximately 32,000 sq metres. Ioane Ubaito the Senior Agricultural Officer for the Ministry of Lands gave an assessment of what plants would grow on the land. He referred to the time taken for coconut trees to bear, the optimum distance to plant the trees apart, and that the capacity of the land depended upon fertility and the amount of rainfall it receives. He accepted that the land was fertile and received a high amount of rainfall and could therefore support a high concentration of vegetation. In addition the respondent tendered by consent a document headed "New Compensation Rates" a decision of Cabinet on 6 August 1992 and the parties agreed that the document could be used as a guide in assessing the value of the trees at any particular time.

5. The judge used an assessment of 800 trees being a figure almost half way between the number of trees the land would carry if the trees were planted at an optimum distance apart to give the greatest yield and the number if the trees were planted closer together when they would give a lesser yield but still a yield. He valued each tree at $50 and although he did not say so it is implicit from the judgment that this figure was taken from the "New Compensation Rates". The Chief Justice then allowed for contingencies and "the vagueness of the evidence on both sides" and discounted the figure from $40,000 to $25,000.

GROUND OF APPEAL

6. There was one ground of appeal, namely that the Chief Justice erred in determining the amount of compensation when there was no satisfactory evidence.

7. Mr Tekanene for the appellant referred to authority which established that the Court is not entitled to make a finding which is not justified by the evidence, and that if a party who has the onus of proof does not discharge the onus on an issue, that issue must be determined against the party carrying the onus of proof. A court should not achieve a measure of rough justice by adopting an intermediate hypothesis. This was effectively a submission that the respondent failed to discharge the onus on it at the compensation hearing.

DISCUSSION

8. While accepting the principles upon which the appellant relies, it is noted that these principles apply when a party is required to discharge the onus of proof in respect of a particular issue going to liability. Courts do not necessarily adopt the same principles when assessing damages after liability has been established and damages obviously accrue, as they do in this case. Difficulties in assessing damages do not relieve a court from assessing them in the best manner that it can. If it can do so a court will assess what it believes to be reasonable compensation in the circumstances.

9. In this case the issue of compensation was referred back to the High Court by this Court. It was obliged, in this Court’s view, to make a determination of the appropriate compensation if there was sufficient evidence upon which it could do so.

10. This Court is of the view that there was sufficient evidence before the Chief Justice. Some of it was admitted by consent of both parties and some of it was given by the appellant’s own Senior Agricultural Officer. The Chief Justice explained the principles upon which he assessed the possible loss of $40,000 although the explanation could in some respects have been given with greater clarity. For example it has been necessary to infer the source of the $50 per tree applied by the Chief Justice. This court is satisfied that while it would have been desirable to have had other evidence there was sufficient evidence to come to the figure of $40,000.

11. The amount of $40,000 was discounted to $25,000 for contingencies and because of the vagueness of the evidence. It would have been preferable to have explained what those contingencies were. However it is obvious that the $40,000 figure was a maximum figure, albeit based on a compromised return basis, and that there would likely be deductions from the figure because of disease, destruction, crop failure and other relevant factors. Further the costs of money interest can also be a factor that should be taken into account. In the circumstances this Court is not prepared to revisit the issue of contingencies.

RESULT

12. For the reasons given the appeal is dismissed.

COSTS

13. The respondent is entitled to costs. If the parties cannot agree they are to be fixed by the Registrar.

Hardie Boys JA
Tompkins JA
Paterson JA