Hilly v Milikada [2006] SBHC 142; HCSI-CC 197 of 2002 (19 January 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 197 of 2002

HARONI HAROLD HILLY, ROLLENCE HILLY,
JIMMY HILLY, FRANCIS HILLY
AND DELMAY TITIULU

V.

SILAS MILIKADA
(TRADING AS JP ENTERPRISES LIMITED)
AND JOY ITAIA
(TRADING AS OCEANIA TRADING COMPANY)
AND LETIPIKO BALESI

Date of Hearing: 25 November 2005
Date of Judgment: 19 January 2006

A. Radclyffe for the Plaintiffs
P. Tegavota for the Defendants

Palmer CJ.: The Plaintiffs are the registered joint owners of the fixed-term estate in Parcel Number 143-008-1 (hereinafter referred to as "the Land"). On 8 August 2002 they commenced writ action against the defendants for damages for trespass to the Land. On 29 September 2005 they obtained judgement against the Defendants for damages to be assessed on the grounds of failing to comply with the orders of the Court dated 22nd April 2005.

On 25 November 2005, the Defendants raised argument that the Plaintiffs were estopped from claiming damages for trespass in this case in view of an earlier case[1] involving the same parties, in which they had agreed not continue with any further claims against the Defendants. The Defendants had paid in that case, a total of $100,000.00 as compensation towards the claim of the Plaintiffs to settle their claim and therefore they are not entitled to make another claim.

I have had opportunity to peruse the file in Civil Case 224-01 and to ascertain the facts. First, the claim was in respect of damages for trespass and conversion of trees felled inter alia, for construction of the access road through the Land, which included an area covering 50 meters on either side of the road (see paragraphs 9-11 of the Further Amended Statement of Claim filed 31 January 2002). Following an agreement entered into between Silas Milikada and Harold Hillie on 7 February 2002, it was agreed that provided a sum of $100,000.00 was paid no disturbance will be caused to the logging operations at Nono land. It was also agreed that the Defendants would be permitted to use the access road and to discontinue action in Civil Case 224-01. On 16 January 2003 a Notice of Discontinuance was filed by Harold Hillie and Jonah Hiti.

In terms of that Notice of Discontinuance in Civil Case 224-01, Harold Hillie would be estopped from making any fresh claims regarding use of the access road and any compensation claims over that road covering 50 meters either way. The other joint owners in my respectful view are affected by his actions as members of the same family and in his representative capacity of his family.

This action is different to Civil Case 224-01 in so far as the claims relate to damages for trespass in relation to the Land alone. In Civil Case 224-01, the claims for damages related to trespass and conversion in respect of Nono land and Ose customary land as well.

Damages for trespass

In Kololeana Development Company Limited & Mega Corporation Limited v. Olupati Amiki and Others[2], this court summarised the law on damages for trespass.

"The rule is that the plaintiff recovers from the defendant the loss suffered as a result of the trespass[3]. Where actual damage has been caused a plaintiff is entitled to recover damages for any loss suffered by him. The value of damages claimed under this head is normally limited to the reduction in the value of the property; that is, depreciation in the value[4]. Where land is damaged, the measure is the loss in the value of the land[5]. It is possible to recover as well for the cost of repairing the property if it is repairable under this head.

Some assistance can be obtained from case authorities where unauthorised mining operations had occurred. In such instances, the main head of loss calculated was the value of the severed minerals removed, but there may also be recovery for damage to the land[6]. In Morgan v. Powell [1842] EngR 74; (1842) 3 Q. B. 278, compensation was given "for all injury done to the soil by digging". In Jegon v. Vivian [1871] UKLawRpCh 21; (1871) L.R. 6 Ch. App. 742 and Phillips v. Homfray [1871] UKLawRpCh 86; (1871) L.R. 6 Ch. App. 770, damage in working the mine was also made part of the inquiry.

In the case of trespass on customary land, the defendants in this case would be entitled to claim for all damages caused to the land as a result of the illegal logging activity of the first and second plaintiffs."

I am satisfied in the circumstances of this case the Plaintiffs would be entitled to claim for damages for the loss suffered as a result of the trespass in which case, that would be equivalent to the value of the losses incurred in terms of the trees felled and removed.

From the material filed before me, much of which has been unopposed, the estimated area of land encroached upon was 25.98 hectares[7]. In his statement at paragraph 2 Kennedy Hoda (Acting Commissioner of Forests then) states that using the SOLFRIS estimates on volume per hectare at 43 m³ per hectare with an average price of USD75/m³ in 2002, the total value estimated came to USD83,785.50. Having received the sum of SBD100,000.00, being for use of the access road and area covering 50 meters on either side of the road, this should be deducted from the claim of the Plaintiff of USD83,785.50. I grant award of damages as sought less the sum of $100,000.00.

ORDERS OF THE COURT:

1. Award damages for trespass against the Second Defendant in the sum of USD83,785.50 less SBD100,000.00.
   

THE COURT.

---

^[1] Harold Hillie and Jonah Hiti (representing themselves, their families and members of the Nono Tribe) v. Letipiko Balesi, Alick Ngira, Jonathan Kevu, Milikada Silas (Trading as JP Enterprises Ltd), the Attorney General (as representative of the Commissioner of Forests and the Western Provincial Executive) and Joy Itaia (Trading as Oceania Trading Company), Civil Case 224-01
^[2] Civil Case Number 83-98, 28 October 2005

^[3] Tort by C.D. Baker 4^th Edition p.56
^[4] Hole & Son v. Harrisons of Thurscore (1972) 116 S.J. 922; Taylor (Wholesale) v. Hepworths (1977) 1 W.L.R. 659.
^[5] Law of Torts in the South Pacific by Stephen Offei 1997, para. 15.11.1
^[6] See McGregor on Damages 15^th Edition para. 1398
^[7] see Statement of Haroni Harold Hilli marked “HHH1”, attached to affidavit of Haroni Harold Hillie filed 16 November 2004; Statement of Ishmael O’owane marked “A” attached to his affidavit filed 16 November 2005, and Statement of Kennedy Hoda marked “A” attached to his affidavit filed 18 November 2005.