Ari v Eagon Pacific Plantation Ltd [2023] SBCA 14; SICOA-CAC 26 of 2019 (28 April 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Ari v Eagon Pacific Plantation Ltd
Citation:
Decision date:	28 April 2023
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Faukona, J)
Court File Number(s):	26 of 2019
Parties:	Simon Ari, Misake Nagoto, Steven Riqeo, Elihu Lipu, Solomon Kulu & Don Riqeo (Trading as Konggukolo Resources Development Company), Athena Investment Limited, Gallego Resources Limited, Eagon Pacific Plantation Limited
Hearing date(s):	24 April 2023
Place of delivery:
Judge(s):	Goldsbrough P Hansen JA Wilson JA
Representation:	Kako I for Appellant Sullivan J KC and Lepe SA for Respondent
Catchwords:
Words and phrases:
Legislation cited:	Court of Appeal Rules r22
Cases cited:	Ladd v Marshall [1954] EWCA Civ 1; [1954] 3 All ER 745
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed
Pages:	1-11

JUDGMENT OF THE COURT

1. This is an appeal against judgment entered upon the assessment of quantum in Civil Case No 382 of 2015 on 6 June 2019.
2. There is also an application by the appellants for leave to adduce further evidence on the hearing of the appeal.

The litigation

3. The first appellants in this appeal (Simon Ari & ors) held a Felling Licence over land in Western Province. The second and third appellants were contractors and subcontractors who carried out logging operations under the first defendants’ licence.
4. The respondent to this appeal (Eagon Pacific Plantation Limited) was registered as the owner of a fixed term estate in the land described as PN 122-001-0004 (‘the respondent’s land’) which adjoined the first appellants’ licence area. On the material before him, his Lordship did not err in rejecting the appellants’ submissions on quantum.
5. The area of the first appellants’ Felling Licence overlapped with the respondent’s land. As we shall explain, the extent of the overlap (‘the disputed area’) has not been determined.
6. In 2015 Eagon commenced this proceeding against the appellants alleging that they had trespassed on its land by entering and conducting logging operations there. Eagon sought (inter alia) a permanent injunction restraining the appellants from entering the respondent’s land and conducting logging operations or for any purpose whatsoever, an account of all moneys from the logs felled and extracted from the disputed area, payment of all proceeds of logs felled and extracted from the disputed area and damages for trespass.
7. The appellants filed a defence and counterclaim.
8. On 13 October 2017 Faukona J struck out the counterclaim. On the claim his Lordship entered summary judgment for Eagon including damages to be assessed.
9. The appellants appealed against the summary judgment but not against the order striking out their counterclaim. This Court dismissed that appeal on 11 May 2018.
10. Eagon filed an application for assessment of damages on 25 July 2018, and on 6 June 2019 Faukona J assessed damages in the sum of $2,767,373.01. His Lordship also awarded interest at the rate of 5% per annum from 17 August 2015 to 14 March 2019 in the sum of $495,818.45. Judgment for damages and interest in the aggregate sum of $3,263,191.46 was entered for Eagon against the appellants.
11. The appeal presently before this Court is against the judgment entered on 6 June 2019.

The issues in the appeal

12. In their Amended Notice of Appeal filed on 3 January 2020 the appellants set out four grounds of appeal –
    1. The Learned High Court judge erred in failing to properly direct himself on the evidence before the court;
    2. The Learned High Court judge erred in taking into account irrelevant considerations in his finding on the quantum of damages;
    3. The Learned High Court judge erred in failing to take into consideration the submission by counsel for the Appellants regarding the total volume of logs extracted from the disputed area;
    4. The Learned High Court judge erred in failing to consider at the contents of the joint assessment report by the Ministry of Forestry and Research dated 27 November 2026, which report was contained in the Sworn Statement of Boyoung Moon filed on 20 January 2017 on behalf of the Respondents.
13. On the hearing of the appeal counsel for the appellants’ submissions focused on his Lordship’s calculation of damages being based on 9,984.9 cubic metres having been exported. Essentially he submitted that his Lordship erred in basing his assessment on that volume. He did not challenge the total volume of logs exported, but submitted that only some of that volume related to logs harvested from the disputed area. Further, he did not take any issue with the accuracy of the calculations undertaken by his Lordship on the assumption that, contrary to his submission, they were based on the correct volume.

Discussion

14. Faukona J heard submissions on quantum on 15 March 2019. In his decision delivered on 6 June 2019 his Lordship summarised the submissions made by counsel for the defendants (the appellants in this appeal). He rejected her submissions as to the extent of the disputed area, saying at para 14 –
    • From those evidence and materials the Counsel for the Defendants had submitted nothing to assist the court to assess the quantum of damages. Her submissions merely focused on issues the Courts had already determined and become non-issue in this application. Those determinations are final. The Claimant come to court to assess the liability of damages in terms of monetary value.
15. In the counterclaim the defendants (the present appellants) had sought a declaration that an area of 4.036 hectares had wrongly been included in PN 122-001-0004. There was no appeal against Faukona J’s order on 13 October 2016 striking out the counterclaim.
16. In para 35 of his reasons for striking out the counterclaim and on the claim granting summary judgment in favour of Eagon (the respondent to this appeal), Faukona J referred to a report compiled by John Paleka of the Ministry of Lands assessing the encroachment area as 31.9 hectares and the harvested area as 17 hectares. His Lordship observed –
    • With that inconsistency, it is impossible to rectify everything.
17. In paras 16 and 17 of his decision on quantum his Lordship accepted senior counsel for Eagon’s submission that the disputed area was larger than 4.036 hectares, but did not make any finding as to its actual area.
18. Mr Kong was the general manager of Gallego Resources Limited (the third appellant). In a statement sworn on 19 October 2016 re referred to court orders dated 7 August 2015 ‘in relation to providing an account of all logs felled and exported for the disputed area’. He said –
    • I am in possession of a log list summary of all logs which were exported from Orava camp at the material time on board MV Sino 3. The volume of the logs exported from the disputed area was 1,197.738 cubic meters.

He attached a Log List Summary. This appears to have been an internal document. It was headed –

GALLEGO RESOURCES LTD
PO Box R8, HONIARA
SOLOMON ISLANDS
LOG LIST SUMMARY

PORT OF LOADING: ORAVA, SOLOMON ISLANDS PORT(S)

SHIPPED PER: MV SINO 3

TOTAL QUANTITY:1,197,738 M3

19. The submissions on quantum counsel for the appellants made to His Lordship were inherently inconsistent. His Lordship noted at para 15 –
    • Mrs Bird’s only point which holds some argument is the total volume of 735 cubic metres as reflected in the report of the joint survey. Again she refers to the third Defendants survey of logs list which shipped on MV Sino 3, a total of 1,197.738 cubic metres.

The first volume of 735 cubic metres was that referred to in a joint survey report by the Ministry of Forestry & Research dated 27 November 2016. The total sample area on which it relied was 4.036 ha. As we have already said, his Lordship accepted that the disputed area was larger than that. The second volume was that referred to in Mr Kong’s material.

20. At para 16 His Lordship recorded that Eagon relied on -
    • government documents related to payment of duties, certificate of origin, size certificate, and exchange rate from Central Bank etc. They are all consistent with Mr Moon’s sworn statement on the estimate volume of 9,984.9 cubic meter.
21. Mr Moon was Eagon’s managing director. In his sworn statement of 20 January 2017 he estimated the volume of logs exported from the disputed area as 9,835.76 cubic metres. In arriving at that estimate he had relied on the following documents that had been supplied by the appellants' lawyers –
    • (a) Receipt issued by Solomon Islands Ministry of Finance and delivered to Gallego Resources Ltd (the third appellant) for payment of export duties in the sum of SB $2,554,130.29;
    • (b) Certificate of origin in these terms-

7 August 2015

TO WHOM IT MAY CONCERN

CERTIFICATE OF ORIGIN

The Forestry Division of the Ministry of Forestry & Research in the Solomon Islands hereby certify that 1,836 PIECES with the volume of 9,984.900 CBM of Solomon Islands Round Logs loaded on MV. SINO 3 VOY: 1504 are from Solomon Islands Origin.

Thank you.

REEVES MOVENI

Commissioner of Forests

MINISTRY OF FORESTRY & RESEARCH

(c) Phytosanitary Certificate issued pursuant to the Biosecurity Act 2013 by the Plant Organization of Solomon Islands. It recorded –

• (i) Gallego Resources Limited (the third appellant) as the Exporter;
• (ii) the Number and Description of Packages as ‘1896 PIECES 9,984.900 CBM’;
• (iii) the Name of Produce and Quality Declared as Solomon Islands Round Logs; and
• (iv) the Declared Means of Conveyance as MV.SINO 3 VOY 1504.

22. Thus the submissions made to his Lordship by counsel for the appellants was inconsistent with the ‘government documents’ she had previously supplied to Eagon.
23. At paragraphs 17-18 his Lordship said –
    • 17. From those submissions I would rather accept the Claimants submissions and reject the Defendants. In conjunction, the Court also accepts the volume of logs extracted and exported from the Claimant’s land.
    • 18. The Claimant’s source from which it works out the assessment is from a letter from the Commissioner of Forest certifying that number of pieces extracted was 1,836 with the volume of 9,984.9cm³ –Anexure “MB3” attached to Mr. Moon Sworn statement filed on 20^th January 2017. That is part of the disclosures Mrs. Bird Sent under a cover letter dated 5^th December 2016, in reply to Mr. Lepe’s letter of 3^rd November requesting certain documents. Now the Claimant has based on that to work out the quantum of damages.
24. On the material before him, his Lordship did not err in rejecting the appellants’ submissions on quantum.
25. The appellants sought leave to adduce further evidence on the appeal - namely, a letter from the Commissioner of Forests to Gallego’s managing director dated 20 September 2020. Their counsel submitted that the letter explained that not all of the timber referred to in the Certificate of Origin was from the disputed area.
26. The first three of the numbered paragraphs in the letter referred to a joint assessment that was in evidence and rejected by Faukona J. The letter continued –
    • 4. I can also certify that the not all of the 1,836 pieces with the volume of 9,984.900 m3 of Solomon Island round logs exported as per the Certificate or Origin dated 7^th August 2015 were felled and extracted from the encroached or disputed area.
    • 5. Our record shows that out of the 9,984.900m³ of round logs exported, about 6,000 m³ of round logs were extracted and loaded from Jahoro camp while another 3,000 m³ plus from Orava Camp.
    • 6. These exports are approved under the Market Price Certificate FD nos. FD#482,494,504 & 483/2015.
27. There was no explanation of what was meant by ‘our records’, or of why the appellants could not have obtained access to them before the hearing on quantum. The quantity said in para 5 to have been loaded from the Orava camp is inconsistent with Mr Kong’s Log List Summary. Finally the Market Price Certificates, by their very nature, would have been in the possession of the exporter - which was shown on other documents as Gallego.
28. Rule 22 of the Court of Appeal Rules provides –
    • Further Evidence
    • 22. – (1) The Court shall have full discretionary power to receive further evidence upon questions of fact, which evidence may be taken by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner.
    • (2) Evidence under this rule, subject to paragraph (3), may be given without special leave.
    • (3) Leave on special ground must be granted before further evidence can be given-

(a) upon an appeal from a final judgment

(b) upon an appeal from a judgment after the hearing of a trial or manner upon the merits;

Provided always that no such leave shall be necessary in any case as to matters which have occurred after the date of decision from which the appeal is brought.

29. This Court does not have an unfettered discretion to admit further evidence on an appeal from a final judgment. An applicant must show ‘special grounds’ why further evidence should be admitted. This Court has adopted the three-stage conjunctive test in Ladd v Marshall [1954] EWCA Civ 1; [1954] 3 All ER 745, 748. as a guide to what can amount to special grounds –

In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

30. In the final analysis, the test is one of ‘special grounds’, and it is possible for an applicant to establish special grounds outside that three-stage framework. However, the cases in which an applicant does so will be exceptional. Where one or more of the stages in the Ladd test have not been met for no apparently good reason, a vague and unparticularised reliance on what the justice of the case might require will not suffice.
31. In the present case the appellants conceded that they have not met the first stage of the Ladd test. In all the circumstances it is unlikely that the further evidence would have influenced the outcome of the quantum assessment – that is, the appellants have not met the second stage of the Ladd test.
32. There is no other special ground on which the evidence should be admitted.
33. Accordingly, the application to adduce further evidence is dismissed.
34. The appeal is dismissed. The appellants are to pay the respondent’s costs of and incidental to the appeal on the standard basis with certification for King’s Counsel.

Goldsbrough P
Hansen JA
Wilson JA