Razak v Halutavonga [2011] SBHC 64; HCSI-CC 288 of 2010 (16 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 288 of 2010

BETWEEN

LILIAN RAZAK
Claimant

And

MICHAEL HALUTAVONGA
First Defendant

And

JORDEN VAN CESAR
Second Defendant

And

SOLOMON GLOBAL TIMBERS
Third Defendant

Mr Rano for the Claimant
Mr Marahare for the First, Second and Third Defendants

Date of Hearing: 9th August 2011
Date of Judgment: 16th August 2011

JUDGMENT

1. On 2nd November 2010 an order was perfected for judgment to be entered against the First, Second and Third Defendants with damages to be assessed. This was in respect of an amended claim filed 28th September 2010. The claim is for damages for trespass, damages for conversion of trees and a permanent injunction against all the Defendants. The particulars of the damage and loss were set out in paragraph 7 of the Amended Statement of case.

2. The facts are straightforward, even partially admitted. The Second Defendant ("Van Cesar") was invited onto land by the First Defendant to mill timber. The invite was in some tribal capacity, it is not said exactly in what capacity, on behalf of the Thokogama tribe. Van Cesar was invited onto Thokogama customary land. Van Cesar did not have a licence to fell or mill timber of any kind so he admits he "relied" on the Third Defendant's milling licence [1]. Whilst he used or relied on the Third Defendant's licence he was acting for and on behalf of the Third Defendant. When the milling operations were carried out all the Defendants admit they "inadvertently encroached into the Claimants land". They even admit they cut down some of the Claimants trees but they say they only cut down 7 in all.

3. There is a counterclaim. The First and Second Defendants seek damages (to be assessed) "for loss of business in terms of the Claimant's undertaking as to damages insofar as the balance of trees sourced outside of the Claimant's land are concerned". They also seek damages arising from the delay caused by their compliance with interlocutory orders of the court. It is difficult to see on what basis these claims are made. The felling and milling took place well within the borders of the Claimants registered land. If it had taken place on land under the control of the First Defendant and his tribe there might have been some ground for complaint by all the Defendants. Evidence establishes felling and milling was undoubtedly carried out on the Claimant's land. The Defendants had no right to be there. They cannot claim damages for being told to stop unlawful activity. The interlocutory orders only related to the Claimants land and property and could not and did not affect any lawful activity carried out by the Defendants elsewhere. The counterclaims are dismissed.

4. Evidence has been produced by the Claimant to prove the number of trees cut down on her land. There is no credible evidence from the Defendants to contradict the numbers. There are two figures given on behalf of the Claimant. One set of figures comes from the survey carried out in December 2010. A written report setting out the findings of that survey is annexed to the sworn statement of John Razak filed 15th March 2011. A second set of figures comes from Rose Babaua's sworn statement filed on 1st August 2011. According to the former there were 121 trees cut from the Claimant's land. According to the latter there were 136. Both figures cannot be right. I am inclined to accept the December figures as correct because the area surveyed then was carefully delineated by use of GPS readings. The majority of the trees cut were either Akwa or Vasa. From Ms Babaua's observations there appear to be twice as many Akwa trees felled as Vasa.

5. When asked about the average length used by Ms Babaua in her calculations on volume and value, the figure of 5 metres was mentioned. When the math is done it can be seen the average is nearly 8 metres for the Vasa. The average volume, based on the Vasa table, is 12 cubic metres. Ms Babaua arrives at a value for the Vasa of SBD 914,409.00. The value of a cubic metre of Vasa is, according to Ms Babaua, SBD 3,825.00. No authority or source is produced for using that figure. The Defendants say her values for all the timber are excessive. I would have to agree. For example, the Court of Appeal case Maximus International v. Iputu and Others [2] adopted the accepted average volume of timber per tree in Isabel was 4.4 cubic metres. This was based on official figures produced by the Government. Even if the price per cubic metre used by Ms Babaua was accepted this would reduce the figure for value of the Vasa to SBD 336,000.

6. I do not believe Ms Babaua has set out to deliberately mislead the court. Her forte is the environment. She is not a forestry expert. Fortunately there is evidence from a forester. Mr Rano did not seek to read the forester's sworn statement into evidence but the court is entitled to look at it when assessing damages. The sworn statement of Patrick Rau is very helpful. It is based on reliable research and Government data. The conclusion he reaches is entirely credible. The figure advanced by him as being the value of the timber is SBD 283,407.21. I accept that figure but will round it down to SBD 283,400.

7. Ms Babaua's evidence on environmental damage was not seriously challenged. Her credentials were not challenged. However, it would be preferable if experts (and Ms Babaua is put forward as an expert) recite their qualifications and experience to give credence to their evidence. Ms Babaua is a Senior Conservation Officer working in the Government and no challenge was made concerning her expertise. Ms Babaua puts an economic valuation on the environmental damage caused. Only one aspect of her evidence was challenged, the value placed on damage to food and economical crops. For the Defendants it is said that legislation provides for compensation in respect of damaged crops. That is true when dealing with agreements between loggers and landowners. Here there was no agreement; here we are dealing with damage to the environment which was the result of trespass. It would not be right to use values placed on crops where landowners invite loggers on to land and must therefore be assumed to contemplate and agree to run the risk of there being some "collateral" damage in a situation where the landowner does not consent to the entry onto the land and does not contemplate the risk collateral damage.

8. There are very few cases in this jurisdiction which deal with the assessment of damages for environmental harm. It is a problematic area, "Environmental damage is itself difficult to assess. The certainty that may exist when other forms of damage are caused is lacking in this area." [3] Even though the lack of certainty is problematic the Claimant must try to assess the monetary value of the damage. In some circumstances it may be a simple exercise based on the diminution in the value of the land. The undamaged land is worth X but once it is damaged it is worth Y. The amount of damages would be the difference between X and Y (simply put, X minus Y). However, with land values being so low in Solomon Islands it is difficult to see how such a result would be equitable in every situation. An alternative approach could be to look at the cost of putting the environmental damage right, in other words, how much would it cost to re-instate the land to its original condition. It could be argued that the cost would be negligible as the damaged land would, with Mother Nature's assistance, naturally recover and revert to pristine forest, eventually. Even so, how in the meantime is the owner to be compensated for the loss of the amenity value of the land?

9. In her assessment of damages Ms Babaua has adopted a broad spectrum approach using all the elements mentioned above. Save for the damage to "food and economic crops" there is no dispute as to the assessment. No evidence has been produced as to the loss of income from "economic" crops. Whilst it would not be right to use the legislative values for damage to useful plants and trees (see paragraph 7 above) the Claimants has not established the probability of loss to the extent suggested in the report. The amount awarded for damage to economic and food crops will be reduced to SBD 75,000. The total amount of damages in respect of environmental harm or impairment is therefore SBD 295,000. The grand total of damages assessed is $578,400. Judgment for that sum is to be entered. The Defendants will pay the Claimants costs, such costs to be taxed on a standard basis if not agreed.

Chetwynd J

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^[1] See paragraph 3 of the Defence filed 20^th October 2010
^[2] Civil Appeal case 13 of 2007 judgment dated 18^th July 2008
^[3] Maximus International v. Iputu and Others Civil Appeal case 13 of 2007