Talasasa v Bea [2018] SBHC 112; HCSI-CC 277 of 2012 (16 November 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Talasasa v Bea
Citation:
Date of decision:	16 November 2018
Parties:	Ronald Bei Talasasa (Jnr), Terry Sagehavu Talasasa, Henry Talasasa, Ronald Bei Talasasa (Snr) v Mary Bea, Zie Kerry, Hukata Bea, Teti Leve and Tumi Bea
Date of hearing:	6 September 2018
Court file number(s):	CC 277 of 2012
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	Court hereby award nominal damage assessed at $15,000.00 against the Defendants for wrongful entry (trespass) and damages to the Claimants land. Grant order restraining Mary Bea, Zie Kerry, Hukata Bea, Teti Leve and Tumi Bea, members of their clan or tribe, servants or agents, be permanently restraint from entering Kazukuru (left hand) customary land (within which borobora land is part of) for the purpose of gardening, building houses or for any other developments. Cost of this proceeding be paid by the Defendants to the Claimants on standard basis.
Representation:	Mr N. Laurere for the Claimants Mr. S Pitabelama for the Defendants
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Sekevolomo v Eagon Forest Resources Development Company (SI) Ltd, Chaplin v Hicks

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 277 of 2012

RONALD BEI TALASASA (JNR), TERRY SAGEHAVU TALASASA, HENRY TALASASA AND RONALD BEI TALASASA (SNR)
Claimants
(Representing themselves and member of their clan or tribe)

V

MARY BEA, ZIE KERRY, HUKATA BEA, TETI LEVE AND TUMI BEA
Defendants
(Representing themselves and members of their clan or tribe)

Date of Hearing: 6 September 2018
Date of Decision: 16 November 2018

Mr N. Laurere for the Claimants
Mr. S Pitabelama for the Defendants

JUDGMENT OF ASSESSMENT FOR DAMAGES

Faukona PJ: On 14^th October 2016 the Court of Appeal allowed an appeal against the trial judge’s judgment, and ruled that a permanent injunction should be issued and that damages should be assessed.

2. Under that ruling this Court has convened to assess the damages for trespass and to consider the terms for the permanent injunction.
3. On 6^th September 2018, the date set for submissions on assessment of damages, only the Counsel representing the Claimant appeared and no courtesy from the other Counsel despite none attendance. However, the Counsel who was present in Court affirmed that the Court will read the sworn statements filed by both parties and thereafter make assessment as to damages. This now I do so in this judgment.
4. It would appear the decision of the Court of Appeal had affirmed that boroboro land is within the left hand Kazukuru customary land which is owned by the Claimant. By directing that damages should be assessed simply implicate the question of ownership is none issue and the act of trespass had been proved to have been occurred.
5. Upon assessing the damages and its extent I observe the two distinctive reports filed by both sworn statements. The sworn statement of Mr Kamasu, Police Officer, stated that when the act of trespass was reported to Police by the Talasasas’ on 29^th December 2011, Mr Kamusa and another Police Officer proceeded to the scene. What he witnessed was an area part of Munda airport outside of runway, was cleared by the Bea family. The area was covered with strong cement, a hard surface as Munda airport.
6. He witnessed Bea’s family had cleared the secondary bushes, vines, small wild tress, without any coconut trees or fruit tress like ngali nut, cut nut or coconut tree etc. The report was made on 27^th of June 2018.
7. On the other hand a report was compiled by someone (name not clearly shown) from Agriculture Office, Munda. The report stated that the assessment was first carried out on 28^th October 2016 and probably completed and compiled on 5^th July 2018.
8. The report contains and concern with the area of land cleared was a half hectares of land. Nothing physically was seen or identified hence the real value of damages cannot be ascertain. The report also reveals there were psychological abuses to the Talasasas’.
9. The report the Claimants’ rely on is perceived to be quite fascinating in particular paragraph 4 that the assessment report was first carried out on 28^th October 2016. That is quite contrary to the submissions made by Mr Laurere on the 1^st of February 2018, which he unveil he had given instructions for assessment survey on 2^nd November 2017, more than a year before the survey commensurate.
10. In any event both reports were compiled somewhat more than six (6) years after the act of trespass was done.
11. The expectation is that there should be a report on what actual trees and fruit trees were felled, and how many. There should be stumps still standing if any at the time of the survey.
12. The report by the Agriculture staff at Munda did not identify any fruit trees as ngali nut, cut nut and coconut tree being felled. Or even any count of any of those edible trees being cut. The tone of his report seems to refer to stories he was told of what happened more than six years ago.
13. There is no evidence of any medical report as to which Talasasa in particular suffered any Psychological abuse because of the act of trespass.
14. I noted it could be because of the late report of physical damage to edible trees hence cannot be well verified. In normal circumstances that could be so. Other reason could probably the owners had cleared the area for the purpose of village development.
15. Despite no concrete evidence, I read the sworn statement of Mr Ronald Bei Talasasa filed in 4^th October 2012. At paragraph (10) he affirmed clearing was done by cutting of plants including fruit trees. There is no mention of any species of fruit trees and how many of them. There must be some evidence of such. The Claimants are merely asking the court to speculate and simply guess as to evidentiary basis for assessment of an award for damages.
16. It is difficult to assess damages to plant and trees and to give a value. Nothing is coming from the report by the Agriculture Officer.
17. The report by the Police Officer who attended the scene when the act of trespass was reported, affirmed no fruit trees or coconut trees were cut, only vines, undergrowth and small wild tress.
18. In the absence of any concrete evidence as to what actually was damaged in terms of tress, and the fact that the act of trespass had been determined in favor of the Claimants, therefore reference to certain authorities to assist in the assessment and valuation is significant.
19. In the case of Sekevolomo V Eagon Forest Resources Dev. Co. & Ore^[1] the Court stated that there must be evidence as to the loss of value not the mere fact of damage. That the onus of proof is on the Claimant to satisfy the Court as to the fact of damage and the quantum of damage. If he does not satisfy the Court on both only nominal damages can be awarded. If he only satisfies the Court as to the damages, but fails to satisfy the Court as to the quantum he also stands the risk for being awarded only nominal damages.
20. In the case of Chaplin v Hicks^[2], the Court stated;
    • “it may be that amount (of damages) will really be a matter of guesswork but the fact that damages cannot be assessed with certainty does not relief the wrong doer of the necessity of pay damages for his breach?
21. In the Halsbury’s Laws of England 4^th Ed. Vol. 45(2)^[3], address the law on damages in particular certain areas of liability should the Claimant proves the act of trespass. One of the fundamental points important to the current case is,
    • “That the Claimant is entitled to recover nominal damage even if he is entitled to receive such an amount as will compensate him for the loss 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”
22. The Claimant claim damages for fruit trees including coconuts which are no visible after six years. No evidence to suggest the number of fruit trees damaged and the actual quantum or value of those trees. There is also no expert evidence on actual Psychological abuse and quantum or value of that abuse. There is also no evidence that the trespass was accompanied by any aggravating feature.
23. The value of assessment suggested by the report amount to $35,000.00 is a guess figure, not substantiated by any evidence at all. I therefore decide to award nominal damage which deem probable and grant permanent restraining order against all the Defendants. The value figure arrived at is by way of excise of discretion of the court because of lack of concrete evidence.

ORDERS:

(1) The Court hereby award nominal damage assessed at $15,000.00 against the Defendants for wrongful entry (trespass) and damages to the Claimants land.
(2) Grant order restraining Mary Bea, Zie Kerry, Hukata Bea, Teti Leve and Tumi Bea, members of their clan or tribe, servants or agents, be permanently restraint from entering Kazukuru (left hand) customary land (within which borobora land is part of) for the purpose of gardening, building houses or for any other developments.
(3) Cost of this proceeding be paid by the Defendants to the Claimants on standard basis.

THE COURT.
JUSTICE R. FAUKONA
PUISNE JUDGE

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^[1] [2014]SBHC 24.
^[2] [1919] 2KB 786
^[3] Buttworth’s, 1999, paragraph 526