Totorea v Houairea [2008] SBHC 42; HCSI-CC 204 of 2000 (10 September 2008)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of Solomon Islands

Xplain Lawyers for the Plaintiffs;
Watts and Associates for the Second Defendant;
Bridge Lawyers for the Third Defendant.

On 13th September 2007 this court awarded judgement in favour of the plaintiffs, inter alia for damages for trespass and destruction to tambu sites. The issue assessment for damages was then adjourned to a later date.

The area that is the subject for assessment of damages is in Po’otori land where a log pond and a one kilometer road had been constructed. The approximate area of the log pond alleged to have been damaged is about 140 metres by 76 metres. The area of damage of the one kilometer road stretches for about 50 meters on either side.

The plaintiffs claim is supported by a valuation report prepared by Nixon Qurusu ("Qurusu"), a valuer, who calculated damages as follows:

	Description	Amount
1.	Compensation for campsite (logpond)	$ 494,667.00
2.	Compensation for value of logs removed	3,557,721.00
	Total	$4,060,400.00

Qurusu used the before and after approach to assess damage and the amount of compensation to be paid. His report identified two key items for valuation. These were the loss and destruction of tambu sites and trees that had been removed along the one kilometer road. Goodwill was calculated at $40,000.00; this was then capitalized in perpetuity for 12 years bringing it to $480,000.00. He then added the rental charge for the log pond at $1.50 per cubic meter for 35,778 cubic meters, which comes to $53,667.00. He then deducted the amount of the goodwill which had been paid, bringing the total to $4,060,400.00.

In his closing submissions however, Mr. Marahare for the Plaintiffs submits that damages should be calculated on the following basis:

Type of Loss	Damages	Amount
1.Loss of economic trees	Damages for conversion	$2,918,916.00
2. Loss of tambu sites	Damages for destruction of tambu sites	960,000.00
3. Loss of value of land	Damages for loss of land	20,806.50
	Total	$3,899,722.50

The second defendant, Taiarata Integrated Forest Development Company, ("Taiarata") deny on the other hand that any trespass was committed as they held a valid licence which covered the Po’otori land.

That argument however is not open to them as judgement for damages had already been entered against them and it is too late to raise argument about liability. Also there is no evidence of grant of any timber rights over Po’otori land to Taiarata. While their licence may have included Po’otori land in its concession area, it does not confer right to enter without a timber rights agreement with the representatives of the right landowners. It is clear in this case no valid timber rights agreement existed between Taiarata and the plaintiffs, who had been determined by the land courts as the owners of Poto’ori land[1]. Taiarata could not enter into Poto’ori land without their consent and in the event that they did, they trespassed into their area, hence this claim.

The claim for damages for tambu sites was in respect of three tambu sites identified as Rao Rao (ooha) which included the Kenihura (Hukanima ‘a su–Suara) and Ma’a – Tapiniu (Rioanimae ana mako) and Rao Rao (Pinupinua – Rioanimae ana aasi). The plaintiffs assess damages at $960,000.00 based on 8,000 strings at $100.00 per string and capitalized in perpetuity.

The second and third defendants deny the existence of those tambu sites and dispute the value and manner of calculation. They say the amount claimed is excessive and unfounded.

The preliminary issue for determination is whether those tambu sites actually existed. The most that can be gleaned from the materials that have been submitted before this court in particular the findings of the Local Court and the Customary Land Appeal Court ("CLAC") is not clear and conclusive. While the Local Court seemed to agree with the submissions of the plaintiffs of the existence of his tambu sites, the CLAC was more hesitant. They pointed out in their judgment that during the survey, the locations of the alleged tambu sites had been completely dozed over and therefore they could not be sure about the claim of the plaintiffs.

It is for the plaintiffs to prove on the balance of probabilities the existence of those tambu sites and that they had been destroyed. On the material before me, the only tambu site which the Local Court was convinced existed and had been damaged is the Raorao tambu site. While I note the CLAC was unsure about the existence of this claim on the grounds they could not find it, I am satisfied the findings of the Local Court in respect of this tambu site can be relied on. Accordingly, I find in favour of the plaintiffs in respect of this tambu site and award damages for this.

The calculation relied on and adduced before this court came to a total of $80,000.00, comprising 8,000 strings at $100.00 per string. This was then capitalized in perpetuity by multiplying by 12 which came to a total of $960,000.00.

It is not clear to me why capitalization was adopted in the valuation but it would seem that the significance of any value of a tambu site relates to proof of ownership rights, rights of usage, boundary descriptions of the land, and identity of the tribe apart from its historical and sentimental significance. To that extent their significance and value can be quite high depending on what they represent. Their loss therefore can be of great significance to a tribe.

Apart from the figure of $80,000.00 submitted by the plaintiffs, no other figures have been provided by the defendants as alternative means of calculating the value of damages for any tambu site. In the circumstances, I award damages at one third the value of $80,000.00 to reflect the value of damages for one tambu site rather than the original claim for three tambu sites, which comes to $26,000.00.

The value of damages for the loss of trees alleged to have been removed in the damaged area was based on the number of shipments and total volume of logs exported on 24th August and 17th October 2000. The records showed that the total volume of logs exported for those shipments was 4,328 m³ with a value of USD374,497.00. When converted at exchange rate of 0.1283, it came to $2,918,916.00. The plaintiffs claim this amount as the value of the trees removed from the log pond area and the one kilometer road.

The defendants however deny that any marketable logs were removed from the damaged area. In the affidavit of Johnny Sy ("Sy") filed 15th February 2008, he deposed that no marketable logs were removed from that area. He says that the one kilometer road area was heavily gardened and so there were no logs there. Any fruit trees and betel nut trees of value had already been compensated to people who owned them. He says that gardening is still continuing in the area with no damage to the top soil.

As for the area where the log pond was located, he deposes that it was wholly of coral and limestone structure with a very thin top soil over it. He says apart from a few coconut trees and fruit trees there was no gardening activities in the area. He says that every outstanding claim in respect of those fruit trees had been fully compensated. He also says that a workshop had been constructed in the area and is being used for the storage of copra and milled timber. The seaward part of the log pond is used as a landing place for canoes during good weather.

No sworn statement in response has been filed to counter the affidavit from Sy that no marketable logs were removed from that area. The calculation relied on by Qurusu merely relied on export figures of logs that were alleged to have been felled and removed from the damaged area with no proof. In view of the denials by Sy and the first defendants, the plaintiff was obliged to provide proof that the figures relied on were accurate and reliable. For instance, there is no evidence if any stumps of trees were seen during the survey by Qurusu in that area and if so, how many. If marketable trees had been removed from the area, at least there would have been some evidence of stumps etc. on the sides of the road or the area of the log pond etc. In the circumstances, I am not satisfied it has been proven on the balance of probabilities that the figures relied on were accurate and reliable and accordingly that claim for damages must be rejected.

Sy states that all landowners who needed to be compensated for the loss of their coconut trees and fruit trees in the area had been duly compensated. He says there was no gardening in the area when they cleared it. He also says that the workshop which they constructed had been converted into a storage building for copra and sometimes milled timber. The surface of the log pond area had also been compacted such that it may be used for permanent housing or commercial buildings and the seaward area has been used as a landing place for canoes during good weather.

The plaintiff on the other hand base their assessment of damages for trespass on the loss of the top soil. In their submissions, the plaintiff actually relied on the total volume of logs exported in six shipments to calculate the so-called loss of the topsoil. They then used the rate of $1.50 per cubic meter to calculate the quantum of damages. This appears to have been based on the rental rate charged for use of the log pond but which had actually been received by the plaintiffs in any event. It would seem that this claim is a duplicate claim for rental charges which had already been received. In so far however as the specific claim for loss of top soil is concerned, I am not satisfied this has been made out on the balance of probabilities and must be rejected.

That there has been trespass to the area in that no consent or permission was obtained from the plaintiffs to construct the log pond and road cannot be denied. The issue is what is the appropriate quantum for damages.

The normal measure of damages for trespass is confined to any loss suffered as a result of the trespass[2]. It is normally limited to the reduction in the value of the property; that is, depreciation in the value[3]. For instance, where land is damaged, the measure is confined to the loss in the value of the land[4].

In his submissions, Mr. Nori submits that where there is physical damage to the land the measure of damages is "the amount by which the value of the land has been diminished and not the cost of restoration"[5]. He cited Rust v. Victoria Groving Docks[6], in which the court criticized the use of restoration cost as a measure of damages:

"...to recover substantial damages the Plaintiff must show an interest in the land beyond an interest for a day or two, otherwise the damages will be usually be nominal."

Mr. Nori points out in this case that there is no evidence that the Plaintiffs had been occupying the land or using the area of the log pond before it was cleared. He says there is no evidence that they had any fruit trees or gardens in the area. He says that there is no evidence that they were relying on the area for their daily gardening and sustenance and will be doing so in the future. He says the plaintiffs had suffered little loss and therefore any damages should be awarded on nominal basis only.

It is for the plaintiffs to prove on the balance of probabilities that they had suffered loss in respect of this area. In so far as their claim for financial losses in respect of felled commercial trees is concerned I am not satisfied this has been made out in the evidence before me. The material provided in the report of Qurusu is too vague and ambiguous. I accept submissions of Mr. Nori that it lacks data and detail as to what existed on the land before the establishment of the log pond and after.

On their claim for damages for polluted reefs and sea front, I am not satisfied too that this has been made out. While some damages may have been caused, their claim lacks detail.

I accept submissions of Mr. Nori that there is no evidence to show that the plaintiffs had any gardens or had used the area for gardening before the clearing took place, that they had any fruit trees or had suffered any loss in terms of use of the land for cultivation purposes etc. I am satisfied, those who had fruit trees on the land or gardens had been identified and compensated. The material before me shows that the area has assumed a value which previously it did not possess in terms of space for buildings, access road, landing site for landowners and a building currently used as a storage-shed for timber and copra.

It is important to keep in mind that the Local Court and Customary Land Appeal Court in their judgements both recognised that the first defendants exercised usufructuary rights over the said area through the female line and therefore could not be evicted from that area. They were entitled therefore to be compensated for any losses incurred to their property or possessions.

Mr. Nori also pointed out in his submissions that rental payments to the landowners for the use of the log pond had actually been collected by the plaintiffs in any event. He submits that if any comparable value for damages is to be made in relation to the log pond, it should be based on the rental rates which had been paid by the third defendants for use of the log pond, which came to $53,667.00. Note, this was calculated at the rate of $1.50 per cubic meter for the total volume of logs exported from the log pond in the two shipments of 24th August and 17th October 2000. I accept submissions of Mr. Nori that this accurately reflects the value of the damages if any for trespass.

In the circumstances, I am not satisfied the claim for damages by the plaintiffs should be granted though I am satisfied damages for trespass per se should be awarded. I am also satisfied the Plaintiffs are entitled to recover all their costs in this action on indemnity basis.

Finally, Mr. Nori Counsel for the third defendants argues that this Court does not have jurisdiction to determine an assessment for damages in respect of this case as the subject matter of the assessment relates to customary land and section 254(1) of the Land and Titles Act ("LTA"). The flaw in this argument lies in overlooking the provisions of section 77(1) of the Constitution which confers unlimited original jurisdiction to the High Court to hear and determine inter alia, any civil proceedings under any law. The claim for assessment of damages arose from a civil action in this case for trespass and conversion, which the parties do not deny this court has jurisdiction to hear. If the argument of Mr. Nori is accepted, then it could also be extended to oust the jurisdiction of this court to even hear any logging cases that come to the High Court on the basis that the issues which arise in many instances are directly connected to customary land. As pointed out above, this could also have meant that this action should not have been commenced in the High Court in the first place but in the Local Court as it affected customary land. No one to date however, has sought to argue that the High Court cannot hear logging cases. In any event, I am not satisfied section 254(1) of the LTA should be construed restrictively as ousting the jurisdiction of the High Court in the assessment of damages which flow from claims of trespass and conversion. It is also important to bear in mind too that where there is conflict, the Constitutional provision will prevail. Further, the tenor of the Act, in particular section 254(2) of the LTA, does imply that the High Court has jurisdiction and where it considers it necessary, it may refer a matter to the Local Court to hear and determine. This court has done that in several instances where a local court has been asked to make findings on certain issues. In the circumstances of this case, I am not satisfied this is one of those instances where it is necessary to invoke that provision. I am satisfied this submission therefore must be rejected.

I am satisfied the amount of $26,000.00 be awarded for damages for loss and destruction to one of the tambu sites, plus damages for trespass per se at $10,000.00 and costs on indemnity basis.

^[1] See decision of the CLAC(Malaita) dated 6^th February 2004
^[2] Tort by C.D. Baker 4^th Edition p.56
^[3] Hole & Son v. Harrisons of Thurscore (1972) 116 S.J. 922; Taylor (Wholesale) v. Hepworths (1977) 1 W.L.R. 659.
^[4] Law of Torts in the South Pacific by Stephen Offei 1997, para. 15.11.1
^[5] Rust v. Victoria Groving Docks [1887] UKLawRpCh 61; (1887) 36 Ch. D. 113 at 119.
^[6] (ibid)

High Court of Solomon Islands

Totorea v Houairea [2008] SBHC 42; HCSI-CC 204 of 2000 (10 September 2008)