Nivah v Balesi [2014] SBHC 33; HCSI-CC 241 of 2006 (9 May 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

CIVIL CASE NO. 241 of 2006

BETWEEN:

ALONI NIVAH
Claimant

AND:

LETIPIKO BALESI
1st Defendant

AND:

JP ENTERPRISES LTD
2nd Defendant

AND:

OCEAN TRADING COMPANY LTD
3rd Defendant.

Date of Hearing: 14th April 2014.
Date of Decision: 9th May 2014.

Mr. W. Rano for the Claimant.
No one for the Defendants.

DECSION ON QUANTUM OF DAMAGES.

Faukona J: A claim was filed on 20th June 2006 seeking various reliefs. A subsequent amended claim was filed on 25th August, 2008. The reliefs sought were related to the following customary lands located on Savele peninsula, New Georgia Western Province: Tabakale, Korovuna, Gakelea, Boku, kainivere and Padakainigatu. The orders sought include permanent injunction in respect of specific lands, damages for trees, conversion of trees and environmental degradation and interest and costs.

2. By application of the Claimant, a judgment was entered in his favour on 30th October, 2013. On the basis of that judgment thus gave rise to this assessment of damages.

3. On 14th November 2013 when this case was called on a motion day both counsels were present. Mr Tegavota represents all the Defendants. At that motion hearing, Mr Rano submits that a summary judgment had been obtained by his client (the Claimant) and what is now left is to set a date for hearing assessment of quantum of damages. Mr Tegavota had no objection. On that date the Court affirmed to both Counsels that a hearing date will be in 2014.

4. On 27th November, 2013, notices were issued to both Counsels setting Monday, 14th April 2014, 9.30am as hearing date and time. On 14th April 2014, Mr Tegavota did not appear and Court decided to hear submissions from Mr Rano. Because of the absence of Mr Tegavota, no evidence to the contrary was heard and Court is legally obliged to hear and determine the submissions tendered by Mr Rano alone.

5. No appeal has since been filed by the Defendants consequent to the summary judgment of 30th October, 2013. In any event, such possibility is now time barred. The effect is that the Claimant's claim of trespass, conversion of trees, and environment degradation are established.

6. In this case, the Claimant is relying on environmental damage assessment carried out by WWF (SI) in October 2006. The report of assessment was done, and was duly served on the Defendants in April 2006 as Exhibit WN1 attached to Sworn Statement of Wheatley Nivah of 18th April, 2006.

Trespass to Land and Quantum of Damages:

7. Where logging operation encroaches into someone's land illegally and caused damages then the remedy for damages for trespass are measured in terms of the reduced value of the land as opposed to costs if implemented. In Potty –v- Takani[1], damages occasioned as a result of trespass upon land owned by the Claimant categorised under three headings; (a) actual damage by road construction, (b) destruction of terrestrial flora and fauna and (c) removal and wastage of valuable trees. In the above three scenarios, damages for trespass are recoverable for soil degradation, destruction of flora and fauna, and removal of valuable trees.

1. Actual trespass:
   

(a). Gravel Extraction for Access Road Construction:

8. Road construction was evident in the concerned logged areas, however, the Report unfortunately fails to specify the total length of the roads used for access and skidding. In the absence of such, calculation for damages using the standard rate is problematic. In spite of that, Mr Rano submits the Report only focuses on the value of gravel used for road construction and fails to take into account the extent of soil degradation caused by skidding, which most does not require gravelling.

9. Nevertheless, Mr Rano states that calculation will be based on rate per load of gravel used for road construction to work out the total volume extracted. There are three areas in which extraction occurred namely, korovua, boku and valuvalu (Table 19, p.29 of the Report). According to the assessment, a total of 6,918 loads of gravel were extracted. Each load has an equivalent volume (1 x w x h) of 3m3. The rate per load applied in Isabel Provincial Government –v- Solway[2], is $250 per load. In Danifunu -v- ALT Co. Ltd and Ors[3], the rate used was $200 per load. In fairness, Mr Rano submits by averaging both the applicable average rate would be $225 per load. Damages would therefore be 6,918 loads x $225 per load amounting to SBD$1,556,550.00.

(b) Skidding:

10. Skidding is an integral aspect of logging operations. According to photographic evidence in the Report, applies to the Claimant's land. Despite the absence of detail evidence of skidding road distance, it can be implied that destruction to land and vegetation as attributed to skidding retrieving felled logs. The total logged area according to the submissions is 23.1ha out of 86.8ha (refer to Table 3, page 20) of the Report. That is the extent area of skidding to maximise logging operations.

11. In the absence of specified skidding road distance, Mr Rano adopted the approach in Danifunu Case.[4] Damages for skidding could be calculated at a rate of no less than 50% of the figure determined by for main road construction. Therefore 50% of 1,556,550.00 giving damages for skidding at SBD778,275.00.

12. The total damage for trespass would therefore be SBD1,556,550.00 + SBD778,275.00 = SBD2,334,825.00.

2. Conversion of Trees:

(a) Exported Logs

13. Damages for conversion of trees is recoverable on the basis of current market value of trees felled and extracted from the concerned land - Kololeana Development Co. Ltd -v- Amiki[5]. Similarly, damages can also be recovered for wasted logs used in the building of bridges, culverts and loading ramp wharf. Such wasted logs are valued as standing timber and can be calculated at a percentage of export value - Kikile -v- Kalahaki[6].

14. The total volume of logs exported is set out in Table 4-10 (pp20 – 22) of Assessment Report with figures distinguished on the basis of corresponding market price for each and every species. Mr Rano produces a table summary of the value of logs removed from each piece of land, as follows:

	1.	Tabakele	673,513.20
	2.	Korovura	403,623.00
	3.	Valuvalu	27,000.00
	4.	Gakelea	7,070.00
	5.	Kanivera	13,662.00
	6.	Boku	76,176.80
	7.	Pondakainigetu	13,662.00
		Total Value SBD	1,214,707.00

15. Added to the total value is the sum of SBD131,965.70 being value of logs of which data was provided by Seghe based Timber Control Unit for Forestry Divisions set in Table 4 (p.20) of the report. The cumulative value of exported logs is SBD1,214,707.00 + SBD 131,695.70 = to SBD1,346,402.70.

b). Wasted Logs:

16. Wasted logs fell and used or abandoned on site are calculated on the basis of average market value of price of SBD560.00 per m3. Calculation is done in respect of each land.

	1.	Tabakale	543. 03m³	304,094.20
	2.	Korovura	31. 99m³	17,916.23
	3.	Valuvalu	97. 3m³	54,487.76
	4.	Babata	41. 13m³	23,032.80
	5.	Gakelea	0	0
	6.	Kanivera	49. 40m3	27,710.52
	7.	Boku	1,177.313m³	659,394.84
	8.	Boku wharf	38m³	21,280.00
	9.	Pondakainiqetu	50m³	28,000.00
	TOTAL VALUE SBD1,135,816.34

17. Whilst the Claimant by obligation claim the amount; that in my view is subject to defects, poor quality with various species with various values. Therefore the value should peg at 50% of the average market value which is 50% of SBD1,135,816.34 = SBD567,908.17

3. Environmental Impairment:

18. Damages on environmental harm may be calculated on the basis of the diminished value of land with damages pegged at the difference between the undamaged and damaged value - Razak -v- Halutavonga[7].

(a) Destruction of terrestrial and marine Environment:

The Claimant claim for loss of terrestrial marine and flora and fauna. These include value of damages to mangroves and adjoining coral reef system. Damage to mangroves is covered by the Assessment Report (Section 38: p.6), and is calculated on basis of total area, value of organisms breeding in 1 ha of mangrove per year and recovery rate for mangroves plants. The Claimant claims a total value for destructed mangroves of SBD15,611.00.

19. Similarly, the Claimant also claims value of damage of coral reefs within close proximity of log pond. Value of damaged reefs is set out in Section 3.9 (pp.35 - 38) of the Assessment Report which the Claimant claims SBD45,450.00.

(b) Damage Cause to Land due to Establishment of Log Pond:

20. The Claimant also claim destruction of land caused by hosting the log pond occupying a total 8.4 ha (refer to Section 3.7, pp. 31-33) of the Assessment Report. The claim is for loss of timber production in the log pond at SBD265,045.00 and value of damage by log pond construction is SBD567,666.00. Total value claim is SBD832,711.00.

(c) Loss of Economic Trees and Food Crops:

21. Loss of trees of economic and cultural value is set out in Section 3.4 (pp. 25-28) of the Assessment Report. The Claimant claims their value totalling SBD604,306.00 (refer to Section 3.5, p.29).

Total Quantum of Damage:

22. The evidence upon which the Claimant relies on reflected by the Assessment

Report carried out and compiled by WWF (SI) in October 2006, which I find very helpful in assessing the Defendants in trespassing onto the Claimants lands and carried out logging activities. Apart from that, there is also additional Assessment Report filed by Forestry Officer based at Seghe, Marovo, Western Province. These two documentary evidences have substantially provided evidential value, which on the balance I am fully satisfied.

23. Without any evidence to the contrary, the evidence adduce by the Claimant must be accepted in assessing the quantum of damages which therefore must be in his favour.

24. The total quantum of damages as assessed and due payable to Claimant are in the following terms;

	1.	Gravel extraction for access road construction	1,556,550.00
	2.	Skidding	778,275.00
	3.	Export Logs	1,346,402.70
	4.	Waste log	567,908.17
	5.	Destructed Terrestrial and Marine Environment	61,061.00
	6.	Damages caused by Establishment of Log pond	832,711.00
	7.	Loss of Economic trees and food crops	606,106.00
		Total Claim	SBD5,649,013.87

Orders:

1. Order total damages of SBD5,649,013.87 be paid to Claimant jointly and severally by the Defendants.

2. Order 5% interest on total damages from the date of Summary Judgment, and further 5% interest thereon from the date of Assessment Judgment to complete settlement.

3. Cost payable to Claimant on indemnity basis.

The Court.

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^[1] Actual trespassing:
^[2] Civil Case No, 274 of 2008 – (judgment on 4 May 2010)
^[3]Civil case No. 422 of 2005 – (Judgment on 17 September 2013)
^[4] Inid para. 9
^[5] (2005) - SBHC 134
^[6] (2011) SBHC 78
^[7] (2011) SBHC 64