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Pone v Anasia Corporation Ltd [2018] SBHC 103; HCSI-CC 126 of 2009 (16 November 2018)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Pone v Anasia Corporation Limited


Citation:


Date of decision:
16 November 2018


Parties:
Josiah Pone, Nicholas Maelana v Anasia Corporation Limited, Ritetrade Pacific Limited, Oliver Gilbert v SI Resources Limited, Anasia Corporation Limited


Date of hearing:
25 July 2018, Submission on 17 August 2018


Court file number(s):
Civil Case 126 of 2009


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Faukona; PJ


On appeal from:


Order:
a)The defendants are liable for trespass and damages
b) The Defendants are liable jointly and severally for the sum of $639, 00.00 as damages for trespass and environment.
c) The Defendants are liable jointly or severally for $3,983,608.40 for conversion of logs.
d) The defendant shall pay to the Claimant $250,000.00 as exemplary damages.
e) The Defendants shall pay of assessment including the reserved cost on 25th July on standard bases, to be assessed if not agreed.
f) The total sum be paid within 28 days


Representation:
Mr W. Rano for the Claimants in CC No. 126 of 2009
No one for the Claimant in CC No. 167 of 2009
Mr A. Hou for the First Defendant in CC No. 167 of 2009
Mr T. Mathews QC and Mr B. Upwe for the First and Second Defendants in 126 of 2009


Catchwords:



Words and phrases:


Legislation cited:
Evidence Act


Cases cited:
Haununumania V Peho, Pone v Anasia Cor. Ltd, Kere v karana, Kololeana Development Co. Ltd v Amiki, Totorea v Houairea, Sekevolomo v Eagon Forest Resources Development Co. & Others, Patty v Tikani, Livingston v Rawyards Coal Company, Kikile & Hanigaro v Kalahaki Ltd & Ors, Holland v Jones, Qalo v Qaloboe, Chaplin v Hicks, Larimae & ors v Mega Enterprises, Eagon Pacific Planation Ltd v Suite, Marina Exorts Ltd v Attorney General

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case Number 460 of 2009


JOSIAH PONE AND NICHOLAS MAELANA
Claimant s


v


ANASIA CORPORATION LIMITED
First Defendants


RITETRADE PACIFIC LIMITED
Second Defendant


Civil Case Number 167 of 2009


OLIVER GILBERT
Claimant


v


SI RESOURCES LIMITED
First Defendant


ANASIA CORPORATION LIMITED
Second Defendant


Date of Hearing: 25 July 2018, Submission on 17 August 2018
Date of Decision


Mr W. Rano for the Claimants in CC No. 126 of 2009
No one for the Claimant in CC No. 167 of 2009
Mr A. Hou for the First Defendant in CC No. 167 of 2009
Mr T. Mathews QC and Mr B. Upwe for the First and Second Defendants in 126 of 2009

DECISION ON TRESSPASS AND ASSESSMENT OF DAMAGES

Faukona, PJ: The land being the subject matter of this particular litigation is known in the dialect of the people in the area of Isabel Province as hovi or gagada customary land. For the purpose of this judgment I will use the name as hovi/gagada land.

  1. The boundaries of the land are well defined and distinctive as shown at the trial. It starts from poto stream (or raja stream) to lefe (or farihenga stream) to litiligama stream to ovitaitahi, then to orongo stream, then down to hovi stream (the point of beginning).
  2. On 20th January 2016, this Court by one of its orders stayed the proceeding pending the determination of ownership of hovi customary land.
  3. Against that determination the Claimants then appealed to the Court of Appeal in Civil Case No. 1 of 2016.
  4. On 14th October 2016, the Court of Appeal allowed the appeal and made orders that the Appellant/Claimants are the owners of hovi customary land. By order 3, the case was remitted back to the High Court for hearing on trespass and damages. Clearly and precisely the ownership issue had been well documented by the judgment of the Court of Appeal.
  5. The names that describe the customary land as hovi or gagada are also cited in the Court of Appeal judgment at paragraph 198. Therefore, there is no need to use the names hovi or gagada to describe the land. It is accepted that both names can be used interchangeable in making reference to the land subject to this proceeding.

The issue of trespass:

  1. Whilst the ownership to the customary land had been finally determined in favor of the claimants, a significant question to pause is, has the Defendants’ logging operation entered into the land as prescribed in paragraph (2) above which ownership thereof had been awarded to the Claimant.
  2. At the appearance before the Court on 25th July 2018, the Defendants do not wish to make any submissions contrary to their having been a trespass. They have consented to relevant principles submitted by the Claimants in the closing submissions on 31st March 2015, see pages (18) and (19) as follows:
  3. In the light of the Court of Appeal decision, apart from being agreed to there being sufficient evidence establishing proof of ownership of hovi/gagada land. The Court also affirmed and relied on the Fitupogu House of Chiefs decision and even stated at paragraph 18, the boundaries of the two customary lands (hovi/gagada and titiligama) are well defined by the Chiefs determination. The same boundaries were presented to them. Therefore, the demand in Haununumania case had been fulfilled and it is not relevant to dwell on what had already been well defined.
  4. It is with no doubt the boundaries of hovi/gagada customary land as well defined at trial, which is also agreed upon by the Court of Appeal, see paragraph (2) above. It is on this basis that the Defendants do not wish to make any submissions but consented to.
  5. To answer the question in paragraph (7) above, the starting point is in the case of Kere V Karana[1], where His Lordship Kabui J held that trespass in customary land is a wrong against title or ownership.
  6. The act of trespass being the bull back of this case was alleged to have been done by the Defendants onto hovi/gagada customary land owned by the Claimants. It is therefore very clear, from Form II determination, which Isabel Provincial Executive had excluded hovi/gagada land from the concession. That was affirmed by the Felling License No. A10704 issued to the first Defendant on 30th July 2013, excluding hovi/gagada customary land.
  7. To substantiate the allegation of trespass, I noted the evidence by the sworn statement of Mr Maelana on 17th July 2009, which stated that on 24th May 2009 they went to the logging site and erected a road block at lefe (near to the boundary with Kolomola land). On 30th June 2009 they made another inspection at lefe. To their amazement they saw road was constructed deep into ovitaitahi deep into hovi land towards titiligama. They followed the road and saw two log storage areas, both were within hovi land. They estimated there were about 600 logs in one of the log ponds. All the logs were labeled TT.
  8. At the ponds they saw freshly cut trees piled for the fourth shipment. That evidence is unchallengeable. They form the major part of trespass which the Defendants consented and have nothing to submit about it.
  9. Again the sworn statement of Mr Maelana filed on 16th April 2009, deposed that here was logging taking place on hovi land. Trees were felled and removed; road construction was visible, machineries at work, clearance of log pond at pahiju. Noted there were ten (10) photographs manifested activities on the land, see Exhibit “NM8,” attach to the sworn statement.
  10. In cross examination Mr Japhet Vagi confirmed the logging road went through the registered land at pahiju which is located inside hovi land. He also stated that the road runs from tanamee through pahiju in hovi land and then into titiligama land. He also further confirmed logging took place inside hovi/rarai customary lands.
  11. The act of trespass which the Defendants conceded to is one which comprises logging activities and not mere passing through without being indulged in logging related activities. By conceding implicated the Defendants are prepared to accept liability in damages proven by evidence enumerated and as reflected. They may be entitled to oppose or dispute the formula used, rate measured or the truth about the veracity of damages per se. But in no way can they deny the consequences of trespass in physical term reflected by evidence which was conceded. I find trespass into hovi/gagada customary by the Claimants was proved on the balance.

Assessment of Damages for trespass to land:

  1. The boundaries of hovi/gagada land had been well defined. The act of trespass was conceded to on two predominant grounds; one that hovi/gagada customary land was never part and partial of the concession area to be logged by the Defendants, and secondly the intrusion into hovi/gagada customary was unlawful and was never consented to by the Claimants.
  2. The assessment of damages does not turn on the ideology as to the right to legal possession which deprived the Claimant which is often assessed by reference to market value of the rent. This is not a case of trespass where occupation for a period entails payment of the values of rent. This is a clear case of trespass to land where damages were physically done to land, flora, fauna, river bed, sea bed, extraction and conversion of marketable trees.
  3. There is no dispute that damages in terms of trespass to land are both compensatory and restitutionary depending on the circumstances of each case. However, statistics should have it, that in most cases damages for trespass are properly characterized as compensatory.
  4. In this jurisdiction assessment of damages to land where trees were converted was well narrated in the case of Kololeana Development Co. Ltd V Amiki[2]. A similar sentiment was adopted in the case of Totorea V Houairea-[3]. Whilst both cases share equal consideration to assessment, the Kololeana case further registered that it is possible to recover the cost of repairing the property if it is repairable.
  5. The purpose of an action in trespass to land is not merely to compensate the plaintiff for damages, but also to recognize the plaintiff’s right for the exclusive use and occupation of his land.
  6. The Halsbury’s Law of England[4] addressed certain areas of liabilities should the Claimant proves the act of trespass. That the Claimant is entitled to recover nominal damages even if he has not suffered actual loss. However, contrary view was applied by this court in Sekevolomo V Eagon Forest Resources Development Company & Ors[5], His Lordship Apaniai J stated that should the Claimant fails to satisfy the Court as to the fact of damage and the quantum of damages by way of diminution, his action will either fail or else nominal damage will be awarded.
  7. The point emphasized by Halsbury’s laws is quite powerful in that once the act of trespass is proved, though no damages is physically suffered, and the element of trespass is present, nominal damages can be awarded to the Claimant for the loss. And there can be no failure in the Claimant’s cause of action, see also Patty V Tikani,[6]
  8. The second form of liability is if the trespass has caused the Claimant actual damage, the Claimant is entitle to receive an amount as will compensate him for his loss. The third is where the Defendant has made use of the Claimant’s land the claimant is entitled to receive by way of damages such sum as should reasonably be paid for that use. Thirdly, where the Defendant cynically disregards the rights of the Claimant in the land with the object of making a gain by his unlawful conduct, exemplary damages may be awarded if the trespass is accompanied by aggravating circumstances which do not allow an award for exemplary damages, the general damages may be increased.
  9. The question of damages depends on the level or veracities of damage caused. The Courts in this country refer to such damages as actual damages. See Totorea V Houairea[7] and Kololeana Development Co Ltd V Amiki[8]. Actual in its ordinary meaning refers to something that was seen, felt or physical. Where actual damages caused, nominal damages cannot be the appropriate measure of damage; it only relevant where trespass is proved without any damages caused.
  10. The rational supporting the theory of recovery of damages to land is that the owner is entitled to be restored, as far as money can do to the position he was in before he suffered the wrong, see Livingstone V Rawyards Coal Co[9].
  11. To support their claim, the Claimants rely on the sworn statement of Mr Maelan filed on 16th April 2009 with attachment Exh.NM8 which contain photographs of actual damages done. The Claimants also rely on another sworn statement of Mr Maelana filed on 5th August 2009 which attached Mr Tura’s report of the damages.
  12. Despite being consented with the evidence adduced and having agreed no further evidence to be filed and submitted, the Defendants argue that the evidence in the sworn statements of Mr Maelana filed in 16 April 2009 and sworn statements filed on 23rd April 2010 were unreliable.
  13. They were unreliable in the sense that Mr Maelana is not an expert in environmental damages, how soil erosion occurred and to the degree of damages. Further argued, that the photos in exhibit NM8 were not independently rectified by a personal from the Environment Division.
  14. In so far as the statement on 23rd April 2010 is concerned Exh. NM1 is hearsay. It merely expresses the opinion of Mr. Tura, hence in breach of S.128 of the Evidence Act. Therefore, by exhibiting that report is inadmissible because it is hearsay.
  15. The Counsel referred to the cases of Kikile & Ano V Kalahaki Ltd & Ors,[10] and as well as Sekovolomo case[11] to support his contention.
  16. Indeed the case authorities the Defendants refer to exemplified the principles adopted to determine the act of trespass which I perceive as of general application.
  17. However, Mr. Rano’s submissions have summed it all in paragraph (6) of his reply to Defendants’ submission which is accepted as the unveiling truth of the position of this case.
  18. From records the evidence given by Mr. Maelana both in sworn statement and oral were never challenged by the Defendants. On that basis it is more than late for the Defendants to say they are unreliable and inadmissible.
  19. Mr. Maelana has never professed to give an expert opinion. The visibility of the damages to the land and environment were so demoralizing shown by the photographs attached to the sworn statement of Mr. Oliver filed on 22nd May 2009 as well, simply comprehend and confirm the level of destruction caused.
  20. The Defendants also challenge the report compiled by Mr Tura (an Officer from the Ministry of Forestry). The Defendants based their argument that the report was unreliable, supported by the case of Sekevolomo[12].
  21. Unfortunately that argument is flawed on the basis they have failed to file an application to challenge the report on the basis of hearsay. Nor was the report challenged during examinations. More importantly there was no notice issued to cross examine Mr. Tura. In the absence of all those any challenge to that evidence now is absolutely late and futile.
  22. The case of Sekovolomo which the Defendants rely on had exposed significant ratios. As a background fact, the case was appealed to the Court of Appeal but was dismissed. In the trial Court Justice Apaniai held,
  23. The Court of Appeal finally upheld that, “it seems to us that the relevance was the only proper head under which this report may be excluded. There was no objection, quite properly in our view, on the ground that it was hearsay. In any event found the report could properly be admitted into evidence and it was so admitted”. The report was clearly relevant to the issues to be determined.
  24. Once filed as an annexure to the sworn statement of the Claimant and found to be admissible, after the objection to it had been determined, it was evidence that the learned trial Judge could rely on if he felt it appropriate.
  25. On the overall, the Defendants had failed to raise particular objections to the report, even in the final closing submissions. They cannot argue that which had been deemed to be unchanged. The report is a statement of fact based on Mr Tura’s knowledge as a Forest Ranger who actually carry out the survey. In essence it is relevant on the issue of assessment of damages; hence, the report is admissible. I must reject the view expressed by the Defendants that the report was unfair because it was not carried out by all the parties.

The formula for assessment:
Damages for trespass:

  1. The Defendants argue if the Court accepts the report then that is the only relevant evidence which provide proof to the question of assessment of damages.
  2. Further, they also submit that in the absence of any concrete evidence such matters cannot be the subject of judicial notice as they are not clear and certain of such to be adopted. On the submission the Counsel rely on the case of Holland V Jones[13], which stated “wherever a fact is generally known that every ordinary person may be reasonably presumed to be aware of it, the Court notices, “see also Qalo V Qaloboe[14].
  3. The Counsel therefore concluded that the Claimants are trying to persuade the Court to recognize particular fact rather than general facts, where in Sekovolomo case ought to adduce evidence of such particular facts, however, chose not to do so. Therefore should only be awarded nominal damages.
  4. I have mentioned at paragraph (27) above that a nominal damage is an appropriate measure of damages if trespass is proved without any damages caused. In the current Case there are evidence and case authorities which supports there were actual damages caused. Therefore nominal damage is far from being an appropriate measure.
  5. There is evidence from Vagi of the fact that the road was constructed from the log pond to titiligama. I have noted as well that on a map attached to Mr Vagi’s sworn statement filed on 25th August 2009, clearly demarcated and showed the path of the road. It was indeed encroached into hovi/gagada customary land.
  6. Mr. Tura’s report affirms the length of the road which was 5 grid boxes which is estimated about 5,500 meters. The width is about 6.4 meters based on excavator track marks which were easily identified from the photograph exhibited in Mr. Gilbert’s sworn statement filed on 22nd May 2009, See also Exhibit “NM 8” attached to Mr. Maelana’s sworn statement filed on 15th April 2009.
  7. In conclusion evidence adduce by the Claimants are conclusive to be speculative. There was trespass onto hovi/gagada land which was not part of the Defendants concession area. The result of the act of trespass were damages done to soil, environment, flora, fauna, water ways, felling and extraction of logs for sale. Those must be calculated on a common formulae applied by the courts.

Going rate:

  1. In their sworn statement the Claimants prayed for award of damages for trespass and environmental loss suffered. In the Kololeana case, the Court was satisfied that in a case of trespass to customary land, landowner is entitle to all damages caused to the land as a result of illegal logging.
  2. In the current case, there is no proper qualification from a valuer or assessor, however, cannot present the Claimants from recovering damages for loss, see Chaplin v Hicks[15].
  3. The Courts in this jurisdiction have accepted what was termed as the “going rate”. It was first adopted in the case of Larimae & Ors V Mega Enterprises[16] and in Kikile & Hanigaro V Kalahaki Ltd & Ors[17].
  4. In this case the evidence of actual damage to land and environment is immense, destructive and open. The evidence shows there are implications of ignorance and willful act.
  5. The Defendants caution the Court that in the absence of evidentiary basis the Court should not adopt the “going rate” for environmental damages caused by road construction at a rate of $7.50 per square meters. Nor can the Court take judicial notice of.
  6. I am intended to uphold the law of this Country. Two cases had adopted the principle, one by Sir Palmer CJ himself and Justice Chetwynd. I cannot sway or invent another approach differently. That would be viewed as stepping over the line. The rate is not a principle which the Court can take judicial notice of and work out the value of damages to land and environment. Clearly it is a principle which had been adopted and applied.
  7. I have to accept the rate. According to Mr Tura’s report the road occupy 5 clicks or occupying 5 grid squares which represent 1000 meters. The total length of the road is 5,500 meters. As to the width of the road according to the photographs taken by Mr. Gilbert showed that the width of the road fills 2 Hitachi Ex 200 LC series model which is about 3.19, doubled that size would be 6.38 meters.
  8. Therefore the damages caused by road construction is calculated as length of the road 5,500 m x 6.38 x 7.50 = $263,175.00.
  9. In determining the extent of damages to land and environment, the same 5 grid squares forms the basis. Observing from Mr Tura’s report that areas along the road was heavily logged and recently covered with canopies. Photographs from Mr. Gilbert shows the level of soil displacement indicate heavy top soil removal, heavy disturbances to flora and fauna. The zigzagging of the skidding roads indicates widespread operations and disturbances.
  10. Again using the same rate of 7.50, I accepted the calculation that 1 square grid represent 10 ha (100 m x 100m) = 10,000 sqm x 5 = 50,000sqm x 7.50 = $375,000.
  11. Therefore the total damages for trespass and environmental damages is $638,175.00. This amount is accordingly is the value and must be awarded to the Claimants. The Defendants must compensate for those damages.

Quantum of damages for Conversion of trees:

  1. On this heard the Defendants argue that the loss to the Claimants is not asserted as equivalent to number of trees felled and exported, but refer to application to export. Therefore the loss to the Claimants is the loss of royalty that would have been received under the Technology Agreement, namely 15% of value of logs assessed by Mr Tura in the sum of $597, 541.00.
  2. Alternatively measure of loss adopting profit figure which Chetwynd J find in Kikile case as being 17.5% profit margin, in this case should be $697,131.00, the measure being highest for conversion and trespass.
  3. Convincingly, the argument advance by the Defendants cannot be accepted. Reference to Application to Export does not mean loss in the royalty payment of 15%. Reference to the application, in my view, was an attempt to show the volume of logs extracted and exported in one shipment. But the claim stood as for the loss on value of logs exported.
  4. It seemed apparent the Defendants are relying on the case of Kikile & Hanigaro where Chetwynd J adopted a Profit margin method.
  5. That method and argument cannot stand; simply they ignore the deliberate act of trespass. In other words it was an illegal operation from the outset. That is a true view of the position. There is evidence that hovi/gagada customary land was never included in the felling license. In the case of Kololeana Dev Co Ltd V Amiki, Palmer CJ held that the measure of damages is the value of logs converted. That can be identified from seven shipments and confirmed by customs and Excise Division. Accordingly the total volume was 12,500m3.
  6. His Lordship in his wisdom brushed aside the suggestion that the correct figure should be less the amount of export duty. He held that is only relevant where a valid license had been issued. The current case was an illegal operation from the beginning.
  7. I noted the Defendants knew their license did not cover hovi/gagada and rarai lands; in fact the license excluded hovi/gagada land. The entry into the land was a deliberate and intentional act. The Defendants know the boundaries that were established in 1964 and 1973. Yet they chose to twist the boundaries.
  8. I must accept the calculation preferred by the Claimant as more appropriate to compensate the loss suffered for taking their resources without their consent.
  9. There are two volumes as to value of logs exported. One was stated in the evidence of Mr Maelena who in which stated that between March 2009 and July 2009 the Defendants had made five shipments. That assertion was confirmed in the round log export application by Ritetrade in 2009. The total volume exported was 12,500m³ which valued at SI $7,108,171.00 million.
  10. The other assessment was made by Tura’s report on 30th March 2010 which showed total stamps counted stood at 1074 with a total volume of 6,444m³. The value of the logs was calculated at 6m³ per log. The total value should be $3,983,608.40.
  11. I prefer Mr Tura’s assessment as more accurate. He was the person working on the ground counting the stumps. He should not left one particular area out. He knew he was given the task, that his report will be used as evidence in Court. He should have done an utterly thorough work whether stumps were covered by wines and creepers that ought to be accounted for. Nothing must be left out.
  12. It is expected that such assessment report should almost as equal to the volume of logs exported and shown on the Table. The variation of about 6,056m³ is a large difference left to be questioned.
  13. I therefore awarded the sum of $3,983,608.40 to the Claimants for the value of logs converted and exported.

Exemplary Damages:

  1. Exemplary damages as claim is for trespass which was accompanied with aggravating features. In this case evidence reveals the defendants had disregarded the rights of the Claimants in the land with the objective of making profit by unlawful conduct.
  2. Further aggravating features are that the Defendants knew that hovi/gagada land was never part of their timber concession and license yet was deliberately in their harvesting plan on Block 1 and 2.
  3. Secondly the Defendants failed to address the protests and road blocks by Claimants. Thirdly the Defendants agree on the restraining orders on 15th May 2009, yet continue on logging.
  4. That the boundaries of hovi/gagada land was well known to Mr Simata who attempted to impugn the decision of the Local Court, yet proceeded to enter the land illegally.
  5. It is noted exemplary damages is a matter of discretion. In the case of Marine Exports Ltd V Attorney-General[18], the Court awarded exemplary damages against the Crown for $500,000.00. In Eagon Pacific Plantation Ltd V Suite[19], the Court awarded exemplary damages of $20,000.00. The Court based its determination on the fact that the Defendants were villagers.
  6. From the two extremes in award, I agree with the Claimants that the award of $250,000.00 exemplary damages be awarded to them against the Defendants as it falls right in between.

ORDERS:

  1. Judgment is hereby entered for the Claimants in the following terms:
    1. The Defendants are liable for trespass and damages.
    2. The Defendants are liable jointly and severally for the sum of $639, 00.00 as damages for trespass and environment.
    1. The Defendants are liable jointly or severally for $3,983,608.40 for conversion of logs.
    1. The Defendants shall pay to the Claimant $250,000.00 as exemplary damages.
    2. The Defendants shall pay cost of assessment including the reserved cost on 25th July on standard bases, to be assessed if not agreed.
    3. The total sum be paid within 28 days.

THE COURT.
.........................
JUSTICE R. FAUKONA
PUISNE JUDGE


[1] (2000) SBHC 48; HC-CC258 (27 November 2000)
[2] (2005) SBHC 134- CC83 (28 October 2005).
[3] (2008) SBHC 42.
[4] 4th Edition Vol. 45(2), London Butterworths, 1999
[5] (2014) SBHC 24
[6] (2002) SBHC 50; HC-CC-197 of 2000(26 July 2002).
[7] Ibid (3)
[8] Ibid (2).
[9] (1880) 5 Appeal Case 25.
[10] (2011) SBHC 78.
[11] Ibid (5).
[12] Ibid (5)
[13] (1917) HCA 26; (1917) 23 CLR.
[14] (2002) SBCA 14.
[15] (1919) 2 KB 786.
[16] Civil Case No. 183 of 2008, judgment on 8th March 2011
[17] Ibid (10).
[18] (2011) SBHC 142; HCSI. CC 42 of 2006 (25 November 2011)
[19] (2012) SBHC 5; HCSI-CC 273 of 2009 (31 January 2012)

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