Eagon Resources Development Company (SI) Ltd v Virivolomo [2015] SBCA 24; SICOA-CAC 15 of 2014 (9 October 2015)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Apaniai, PJ.)
COURT FILE NUMBER:	Civil Appeal Case No. 15 of 2014) (On Appeal from High Court Civil Case No. 218 of 1992)
DATE OF HEARING:	07 October 2015
DATE OF JUDGMENT:	09 October 2015
THE COURT:	Goldsbrough P Ward JA Lunabek JA
PARTIES:	Eagon Resources Development Company (SI) Limited - V – Moses Virivolomo (Representing His Tribe)
ADVOCATES: Appellant: Respondent:	C Hapa M Pitakaka
KEY WORDS:
EX TEMPORE/RESERVD:	RESERVED
ALLOWED/ DISMISSED	DISMISSED
PAGES	1-5

JUDGMENT OF THE COURT

1. The decision appealed in this instance is a decision of the High Court on assessment of damages. It was in 1999 that a finding of trespass was made with assessment to be undertaken. The claim dealt with in the High Court in 1999 had itself been filed in 1992 and concerned event between the execution of a logging agreement of 2 July 1987 and 1991.It took fifteen years for the assessment hearing to be held, for reasons that appear to be set out in the sworn statement placed before the Registrar seeking leave to enforce the judgment in 2012. That sworn statement is part of this appeal record. It is, though, safe to say that the trespass complained of took place between the years 1987 to 1991.
   
2. The grounds of appeal relate solely to questions of facts found by the learned judge at first instance. In the notice of appeal it is said that:-
   

(a) The learned assessment judge erred in law and in procedure when he accepted evidentiary materials in support of the claimant's submissions in connection to the Commissioner's 2004 Assessment when such evidentiary materials were:-

(i) Irrelevant to assessment of damages; and/or

(ii) Never pleaded and therefore never admitted into evidence in the first place; and/or

(iii) Never form part or taken into account in the findings of the trial judge made on December 2, 1999

(b) The learned assessment judge failed to give due consideration to First Defendant's submissions that the Commissioner's 2004 Assessment was:-

(i) Irrelevant to assessment of damages; and/or

(ii) Never pleaded and therefore never admitted into evidence; and/or

(iii) Never form part or taken into account in the findings of the trial judge made on December 2, 1999

(c) In any event, no evidence has been placed before the Trial Judge (i.e. there was never a finding of fact by the trial judge) in respect of the following relevant material facts;-

(i) That the Commissioner's 2004 Assessment was in relation to the Koqoatovo Land;

(ii) 583 trees felled and left lying in the bush were trees felled by the Appellant inside the Koqoatovo Land as per decision Land Appeal Case No 10 of 1996;

(d) In the absence of firstly, non pleading and secondly, not forming part of the findings of the trial judge, the Assessment Judge exceeded his jurisdiction when he made a finding of fact in respect of the following;

(i) That the Commissioner's 2004 Assessment was in relation to the Koqoatovo Land; and

(ii) 583 trees felled and left lying in the bush were trees felled by the Appellant inside the Koqoatovo Land as per decision Land Appeal Case No.10 of 1996.

3. The relief sought on the appeal is for the damages awarded for conversion awarded against the Appellant in the sum of SBD $1,530,022.91 be set aside and that the Respondent pay the costs of the appeal.
   
4. A constituent part of the appeal book is the judgment of Palmer J (as he then was) in 1999 when the order for assessment of damages for conversion and trespass was made, and the appeal decision No 10 of 1996 when the same judge (as chance would have it) in 1998 dismissed the appeal against a decision of the Customer Land Appeal Court brought by Bernard Kasi against Stephen Sekevolomo.
   
5. In directions before the assessment hearing, an order was made permitting each side to file sworn material. That order was complied with by the filing of the sworn statement of Moses Virivolomo (starting at page 101 of the appeal book) and of William Pita (starting at page 159 of the appeal book). It is not apparent from the trial record as to whether any viva voce evidence was called, but there is objection taken and dealt with in the judgment to the reception of the Schenke report which was an annexure to the sworn statement of Moses Virivolomo.
   
6. The objection to the Schenke report was based on relevance and was determined by the judge at first instance. He ruled that the report was admissible. It was therefore before the Court and available as evidence for the assessment. There is no question, it seems to us, of the document not having been properly introduced into the proceedings. The decision to rule the document relevant may be a decision that is subject to challenge but if that decision was correct the report was properly before the trial court.
   
7. We cannot see any merit in the appeal ground which seeks to go back to the original finding of trespass and notes that the same report was not referred to in that judgment of 1999. That judgment, never the subject of an appeal, was not concerned with assessment of any damages but merely the principal claim of trespass and conversion. That this Schenke report was not in evidence or not relied upon then cannot be a reason for it not to be referred to during this assessment hearing.
   
8. The judge at first instance identified four grounds on which the Schenke report might not be relied upon in submissions from counsel for the Appellant. The four grounds were whether the report was too old and irrelevant, if relevant whether it contained information sufficient for assessment of damages for trespass purposes, whether it actually related to Koqoatovo land or Mavara land, and if it did whether it contained sufficient material for the assessment of damages for conversion.
   
9. It seems to us that relevance was the only proper head under which this report may be excluded. There was no objection, quite properly in our view, on the grounds that it was hearsay. If deemed relevant and therefore admissible, assessment of its value to the assessment was then a necessary and important next step. However, even those two steps appear to have been taken as one step, it is clear that all of the necessary questions raised have been addressed and determined. That is clear from the reasons given in the judgment from paragraphs 13 to 38.
   
10. In the event he found that the report could properly be admitted into evidence and it was so admitted. We find no fault in that determination. The report was clearly relevant to the issues to be determined. Once filed as an annexure to the sworn statement of the claimant and found to be admissible after the objection to it had been determined, it was evidence that the learned trial judge could rely upon if he felt it appropriate.
    
11. Nor do we find any merit in objecting to the report on the basis that it was old. A better view, we believe, is that given that it was compiled closer to the time of the trespass and conversion than any present day report it is more likely to contain relevant information than a report commissioned, say, in 2012.
    
12. Whilst extensive, the grounds of appeal actually raise no more than has already been set out above. The appeal, we consider, is no more than an appeal against the trial judge's decision to admit the report into evidence. Once that had been done, and in our view properly done, there is little else raised on this appeal. After receiving the report into evidence the trial judge considered its effect on the assessment and reached conclusions that were not outside of expected parameters. Each issue now raised by counsel for the Appellant in this court were addressed. Whether the report was about trespass in Koqoatovo Land or Marava Land, whether the report was too old and irrelevant, and finally whether the material contained therein was sufficient for the purposes of assessment of both damages for conversion and trespass.
    
13. Given that the learned judge was eventually able to put figures on those two items (and we note at this point that there is no appeal against the nominal amount of $15,000 awarded for trespass) it is apparent that he found the material both sufficient and compelling. We cannot find anything that supports an argument to the contrary.
    
14. The finding of relevance is clearly not a finding that should be disturbed. Given the passage of time between the original cause of action and the time of assessment that was just about the best evidence that could reasonably be expected. Without it there would be little or no evidence of something which took place decades ago. Within the record of appeal we find no material suggesting that the Appellants complied with the orders for an account. If such order had been complied with there would have been more material available for the assessment. It would be ironic indeed if the Appellant could benefit from non-compliance with that order by thereafter avoiding an assessment on the basis that the material relied upon itself was not the best possible evidence.
    
15. In the event this appeal is dismissed with costs of and incidental to this appeal to

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Justice Goldsbrough
President of the Court of Appeal

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Justice Ward JA
Member of the Court of Appeal

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Justice Lunabek JA
Member of the Court of Appeal