Attorney General v Binoka [2010] KICA 10; Civil Appeal 13 of 2010 (18 August 2010)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO

Civil Appeal 13 of 2010

BETWEEN:

ATTORNEY-GENERAL
(in respect of Ministry of Works and Energy)
Appellant

AND:

TEMWERI BINOKA
Respondent

Before: Tompkins JA
Fisher JA
Williams JA

Counsel for Appellant: Ms Pauline Beiatau
Counsel for Respondent: Ms Taoing Taoaba

Date of Hearing: 13 August 2010
Date of Judgment: 18 August 2010

JUDGMENT OF THE COURT

Introduction

[1] In a decision of 23 September 2009 the Chief Justice found for the respondent on liability in a claim for damages arising from unauthorised road construction through her property. By a subsequent judgment of 22 January 2010 he fixed damages in the sum of $18,000. From the latter decision the Attorney-General has appealed.

Background

[2] The respondent was a member of the family that owned land on which the Ministry of Public Works and Energy wanted to build a road. On the property the respondent had built a house, some other structures and a retaining wall and had planted certain fruit-bearing coconut trees.

[3] The Chief Justice found that the Ministry's construction of a road through the property made it impossible for the respondent to remain there; that but for the road she would have continued to live there; that the construction was carried out without following the necessary procedures under the State Acquisition of Lands Ordinance; that the respondent was entitled to damages; and that the damages should financially restore her to the position she would have been in but for the road construction.

[4] The Chief Justice went on to consider the respondent's loss of the house, outbuildings, fruit-bearing trees and retaining wall on the property. The biggest component of the damages was that the respondent could no longer live on the property. She had to move to another property where she would have to pay $20,000 to remain. The other items amounted to $2010. Bearing in mind that some the figures were either estimates or based on expectation, he discounted the total of $22,010 to $18,000.

The Appeal

[5] The appellant advances one ground of appeal. Ms Beiatau submitted that it was wrong to include in the damages the cost of buying replacement property rather than compensation for the damage caused to the original property.

[6] In support Ms Beiatau pointed out that in the statement of claim there is a list of items headed "loss to her residential place" including "expenses for development and improvement to land $20,000". Although poorly worded, this was clearly intended to be a reference to the $20,000 payable for the new property because that was the precise figure involved and the improvements to the original property had been the result of labour, not expenditure.

[7] The principal question is whether the appellant was procedurally prejudiced by the poor wording in the statement of claim. Ms Beiatau submitted that the appellant was not given sufficient time to investigate and prepare a defence. However no details were provided as to investigations that would have been carried out and the possible evidence that might have been given in response. Nor does it appear from the record that Ms Beiatau either objected to the respondent's replacement cost evidence at the time it was presented in Court or sought an adjournment to prepare evidence in response. We accept that the pleading was misleading but on balance we are not persuaded that the Chief Justice was wrong to allow the case to continue in the way it did.

[8] Ms Beitau also submitted that it was wrong in principle to assess damages by reference to replacement cost rather than loss in the value of the original property. We agree that the latter would be the normal basis for assessing damages. However in the present case the dwelling site on the original property became uninhabitable, it was difficult to value the improvements, and the nature of the respondent's right of occupation was complicated by the fact that title rested with her family. In those circumstances we think it was open to the Chief Justice to turn his attention to the cost the respondent would incur in finding a home elsewhere.

[9] Ms Beitau also submitted that the respondent's position would now be improved in that previously she had occupied her house at the whim of the head of the family whereas on the new property she would have absolute ownership. However there was no evidence on either of those matters. We are in no position to assess the existence or extent of any betterment.

[10] In the end the assessment of damages is a broad and flexible process in which the trial judge is afforded considerable scope to meet the particular circumstances of the case. We are not persuaded that the Chief Justice went beyond that scope in the special circumstances of this case.

Conclusion

[11] The appeal is dismissed with costs to the respondent to be agreed or fixed by the Registrar.

Tompkins JA
Fisher JA
Williams JA