Koriri v Attorney General & Butaritari Island Council - Damages [2007] KIHC 40; Civil Case 15 of 2006 (15 January 2007)

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

High Court Civil Case 15 of 2006

Between:

NEI TIANTA KORIRI
Plaintiff

And:

THE ATTORNEY GENERAL
1st Defendant

BUTARITARI ISLAND COUNCIL
2nd Defendant

For the Plaintiff: Mr Stephen Earl
For the 1st Defendant: Mr Birimaka Tekanene
For the 2nd Defendant: Ms Botika Maitinnara

Dates of Hearing: 21 November 2006 & 15 January 2007

ASSESSMENT OF DAMAGES

The genesis of this litigation lies in the disestablishment of the High Chieftainship on Butaritari in 1962, followed by the decision of Davis J in High Court Civil Appeal No. 1 of 1975, by our decision (LA 64/1992) in 2000, followed by the rectification of the Butaritari Land Registers soon after.

Ever since 1991 the plaintiff has been trying to get compensation for her claimed losses. Finally in 2000 the Court of Appeal (LA 4/2000) decided:-

The respondent is entitled to receive the rent payments under the five-year lease of the subject land from 14 March 1972, if that rent was not paid. But otherwise she should be compensated for any detriment, inconvenience or loss that she can show she suffered or any other proper head of compensation she can establish.

In March 2004, the parties having failed to reach agreement, the plaintiff began these fresh proceedings for an assessment, claiming $286,900.50. The hearing began on 16th October, was part heard and adjourned to 21st November and completed last Monday 15th January.

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.

The one witness for the plaintiff was her daughter, Nei Meere Tekinano. Although I have no note of it, counsel agreed that Nei Meere gave the area of the land in question (Baroaka 514-a and 515-4e) as approximately 32,000 square metres, being 400 metres in length and 80 metres in width. This is the only definite evidence of area from either side. To my surprise no survey of the land has ever been carried out, not even by the first defendant for the purpose of meeting this claim. Mr Boata Iabeta, Senior Land Surveyor, for the defendant said he did not know how big the land may be. I am obliged to work on Nei Meere’s estimate.

Mr Earl tendered by consent a document headed "New Compensation Rates" decided by Cabinet on 6th August 1992. It was agreed that I may use the document as a guide in assessing the value of trees at any particular time.

The Attorney General called several witnesses: the Island Council none. The evidence of Kantara Tebobo, Nei Bwabo Burantekemanoku and of Nakarawa Botara was imprecise, vague and not of relevance. I could not put reliance on it: it does not help me. Mr Ioane Ubaitoi, Senior Agricultural Officer, gave his assessment of what plants would grow on the land. I am happy to rely on Mr Ubaitoi’s evidence. I accept Mr Earle’s summary of it which neither Mr Tekanene nor Ms Maitinnara challenged:-

1. coconut trees take approximately 5 years to bear fruit when planted as seedlings;
   
2. coconut trees are likely to bear the most fruit when planted 7 to 8 metres apart;
   

100. coconut trees will bear fruit even when they are planted as close as 4 to 5 metres apart;
     

4. the planting of coconut trees in closer proximity than recommended affects the quantity of their yield only; it does not affect the quality;
   
5. the capacity of land to support vegetation depends on its fertility and the amount of rainfall it receives; and
   
6. the subject lands are fertile and receive a high amount of rainfall. The subject lands can support a high concentration of vegetation.
   

So far, then, I have estimates of area and of what plant life the land would carry.

The Defences of neither defendant pleaded it but Mr Tekanene argued the claim was out of time. I reject the argument. The plaintiff has been claiming compensation since 1991. The limitation point had not been raised before. The first proceedings, begun in 1991, were in time. The limitation period is six years (Limitation Act 2004 s.4(1)). To be on the safe side, and although the actual year does not matter (except perhaps for calculating interest), I shall go back no further than 1985 to assess the plaintiff’s damages.

How to go about it? Mr Ubwaitoi gave evidence only of how many coconut trees can be grown on an area. Although he said other plants and trees could be grown on it he did not say how many of them the land could carry. The only evidence of carrying capacity I have is of coconuts.

Mr Earl made submissions as to how many trees and plants the plaintiff lost at various times. The simpler method is to make a once and for all calculation based on the total area of the land.

Mr Tekanene did not challenge these calculations of Mr Earl:-

1. the amount of coconut trees planted 5 metres apart over the Assessment Area would be equal to 1,185; and
   
2. the amount of coconut trees planted 8 metres apart over the Assessment Area would be equal to 392.
   

I shall work on those figures. Planting 392 trees 8 metres apart gives a better yield than planting 1,185 trees 8 metres apart. Because it is all so indefinite an exact assessment is impossible. I take a figure between 1,185 and 392. I shall work on 800 trees lost.

Assuming a once and for all loss in 1985 of the plaintiff’s land with a total area of 32,000 square metres carrying 800 coconut trees valued at $50 each gives $40,000.

Rent payments under the five year lease from 14th March 1972 are a trifle: $1.50 per annum. I do not need to take them into account in the calculations.

For contingencies and because of the vagueness of the evidence on both sides the figure of $40,000 must be much discounted.

I assess the plaintiff’s loss at $25,000.

I shall hear counsel as to interest.

Dated the day of January 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice