Maeli v Omex Ltd [2011] SBHC 34; HCSI-CC 176 of 2008 (20 May 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 176 of 2008

BETWEEN

MARSHALL MAELI and CHRISTOPHER MELI
Claimants

And

OMEX LTD
Defendant

Ms Bird for the Claimants
Mr Tegavota for the Defendant

Date of Hearing: 11th May 2011
Date of Judgment: 20th May 2011

Judgment

1. The Claimants were the owners of crops on Matibo Island in the Marovo Lagoon. The crops consisted of coconut, cocoa, beetle nut, cut nut and mango trees. They are claiming damages against the Defendant Company ('Omex"). They say Omex damaged their crops whilst carrying out logging operations on Rodo land on Matibo Island. They make no claims as to the ownership of Rodo land; the crops were on a different part of the island. Omex say quite simply, they did not damage the crops. It is a question of evidence. If I can say, on the balance of probability, Omex did damage the crops I can enter judgment for the Claimants. There is no dispute about the amount of damages. In other words, the only question I am asked to decide is on liability. Of course even though the amount of damages is agreed the onus is still on the Claimants to prove, on the balance of probability, their claim about liability.

2. The evidence is very sparse. It consists of the pleadings, some sworn statements and the oral evidence I heard at trial. The oral evidence came from the first named claimant Marshall Maeli (for the Claimants) and from Burnley Kimitora (for the Defendant).

3. Mr Maeli said in evidence he had a cocoa plantation on Matibo Island. It was started some 20 years ago by his family. Sometime in 2007, he could not recollect the month, Omex damaged the whole of the plantation when they constructed access roads and a campsite. He said that there had previously been a logging company working on the island and they too had caused damage. That was in 2005. The name of the company was Hup Lee. They had caused some $ 20,250 worth of damage. A Field Assistant from the Agriculture Division at Seghe had assessed the damage. The crops damaged on that occasion belonged to himself and another person, Inia Maqiti. Mr Maeli agreed the letter sent by his lawyers to Omex in respect of that damage had been sent to the wrong company. (A copy of the letter was annexed to the sworn Statement of Mr Kimitora filed 17th September 2008). His evidence was the damage by Hup Lee was limited in extent to the area around the log pond. It is not clear when Hup Lee left Matibo Island, the evidence seemed to be that it was as a result of a court case. Omex arrived sometime in 2007. Omex used the same log pond as Hup Lee. Omex constructed roads and a campsite. That was when the damage was caused to the cocoa plantation.

4. During cross examination Mr Maeli maintained his evidence. The damage by Hup Lee was limited to coconut trees close to the log pond, that caused by Omex was further inland. He had consulted the field officer about the coconut trees but he did not know why the letter (of assessment) took so long. He denied that when Omex landed the area of the cocoa plantation had already been cleared. He denied that when Hup Lee did not pay for the initial damage he decided to claim against Omex.

5. Mr Kimitora said he was the Managing Director of Rodo Land Trustees Development. They had a felling licence and Omex were engaged to carry out the logging. Omex landed on Matibo Island in November 2007. He arrived one day before the barges carrying equipment arrived. His evidence was the whole area had been clear felled already. Omex did no more work at the log pond apart from clearing logs left by the previous company. He said an access road had already been built and that Omex used it. He did not see any cocoa plantation just clear felled areas and some gardens. He was on Matibo Island for 3 months. In a sworn statement he said Omex built a new campsite but it was "outside Matibo land block".

6. In cross examination he agreed that before he arrived on Matibo in November 2007 he had been living in Honiara. He said there had been no complaints by landowners when he was on the Island with Omex.

7. The only independent evidence comes in the form of letters from Allan Miller. He is an Assistant Field Officer with the Agriculture Division based at Seghe. He carried out two assessments. The letters which resulted are both exhibited to Mr Kimitora's sworn statement filed 17th September 2008. One appears to be dated 3/00/07. It says the assessment was carried out on 30th August 2007. It says that in clearing the area for the log pond coconut trees were damaged. It is addressed to Hupoly Company. The second is dated 9th April 2008 and is addressed to Omex. It says the assessment was carried out on 9th April 2008 and found that damage had been caused when "... you established your camp site".

8. Mr Miller was not called as a witness by either side. There is no evidence as to how he carried out his assessments. The presumption is he visited the area. The second letter says he carried out his assessment "...whereby it was discovered that two (2) agricultural projects were destroyed". The implication is he went and saw the area for himself. The first letter does say the assessment, "... was carried out on 30/08/07 at Matibo, (Rodo Camp)".

9. Omex does not contend the letters were not written in 2007 and 2008. If it is accepted that Mr Miller visited the area on the first occasion in August 2007, even if he had restricted his inspection to the log pond area, he would have seen the clear felled area that was so obvious to Mr Kimitora. He does not mention it. The evidence clearly establishes that Omex did not arrive until November 2007, after that first visit. Whilst Omex does not dispute the visits took place Mr Kimitora has challenged the findings. He did so in a letter annexed to his sworn statement and dated 27th May 2008 (BK 4). However, the Defendant has produced no evidence to contradict Mr Miller's findings. On the face of it then I must accept that on the first visit by Mr Miller, before the arrival of Omex, he saw no evidence of clear felling as described by Mr Kimitora. On his second visit he "discovered" the destruction of two agricultural projects. There is no dispute that Hup Lee arrived in 2005 and only stayed for a short while [1]. On the balance of probabilities then I find that the "destruction" of the agricultural projects occurred after the first visit by Mr Miller in August 2007. The only logging operation being conducted after that date was by the Defendant, Omex. I find that on the balance of probabilities the damage was caused by Omex.

10. Judgment should be entered for the Claimants. Quantum has been agreed and so the judgment should be for the amount claimed in the Amended Claim filed 19th February 2009 [2] namely $114,500.00. The Claimants are entitled to interest on that sum and their costs. The latter shall be taxed on a standard basis unless they can be agreed.

Chetwynd J

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^[1] Paragraphs 4 (a) and (c) of the Defence at page 38 of the Bundle of Trial Documents
^[2] See pages 34 to 36 of the Bundle of Trial Documents