Kirite'e v Ome [2018] SBHC 25; HCSI-CC 387 of 2011 (20 February 2018)

IN THE HIGH COURT OF SOLOMON ISLANDS

(FAUKONA, PJ)

Civil Case No. 387 of 2011

BETWEEN: FANGIDUA KIRITE’E Claimant
(Representing himself and members of
his family)

AND: JOHN OME, DAVID SUITI, ALICK LUNA First and AMOTA SOMODAI LUNA Defendant
(Representing themselves and members of their
families)

AND: ATTORNEY GENERAL Second

(Representing the assistant Field Office, Defendant

Malaita, and the Ministry of Agriculture)

Date of Hearing: 26^th October 2017
Date of Judgment: 20^th February 2018

Mr N. Laurere for the Claimant
Mr E. Kii for all the Defendants

JUDGMENT

FAUKONA J: An amended claim in category A was filed by the Claimant on 21^st November 2013. The reliefs sought were in terms of trespass, damages, loss of business, damages for injuries sustained and damages for negligence and interest on damages.

2. By decision of Land Case No. 28 of 1968, Mr Ramoitolo was adjudged to be the owner of latea customary land. The Mousunga House of Chiefs affirmed in their decision dated 14^th June 1995 that latea customary land was owned by Mr Ramoitolo.
3. In 1971, the Claimant purchased a piece of land called fasifau land from Mr Ramoitolo located within the large latea customary land – see High Court Case No. 245 of 1990.

4. The Malaita Local Court decision in Civil Case No. 8/73 on 7^th June 1973, affirmed that the Claimant purchased the land in accordance with the first agreement he made with Tokawane. The action taken by Mr Soai advicing Mr Fiutai to reduce the size of the land purchased, as appeared in the second agreement was rejected by the Local Court.

5. The boundary of the purchased land was well documented in the Chiefs and Local Court records.
6. On 15^th November 2017, fa’asifau land was registered in the name of the Claimant together with other four joint-owners, they were members of his family.
7. On 8^th July 2000, the first Defendants presented an oral allegation to the second Defendant that the Claimant had damaged (fell) twelve coconut trees owned by them.
8. On 23^rd August 2000, by a letter, the second Defendant responded to the report by assessing the alleged damages. The letter was headed “to whom it may concern.” It was carbon copy to Amote Somodai (one of the first Defendants), Officer in Charge, Police Station, Atori, CID Auki and Agriculture Field Officer, Atori.
9. On 13^th September 2000, police Officers at Atori Police Station arrested the Claimant. At Auki, the CID Officer informed the Claimant that he was arrested for damaging 12 coconut trees. The Claimant was kept in custody for 1¹/₂ days.
10. On 13^th September 2000, the first Defendants and members of their families attached the Claimant and members of his family at fa’asifau land.
    

Prior Decision

11. I noted that on 30^th June 2016, the court entered a default judgment against all the first Defendants in terms of relief prayed for in the amended claim.
12. In a Criminal High Court Case No. 436 of 2004, two of the named first Defendants, Mr Amota Somodai Luna and Alick Luna were sentenced to four (4) years and one (1) year imprisonment respectively. Mr Alick Luna was a juvenile at that time. The charge was arson. The arson incident was directly related to this claim.
13. In another High Court Case No. 265 of 2006, the other two named first Defendants John Ome and David Suiti appeared in court charged with five offences each including arson.
14. All the offences emerged from the incident occurred on 13^th September2013, where all the Defendants and their families carried out armed attack on the Claimant and his family.
15. On the basis of those facts, and the letter written by the second Defendant on 23^rd August 2000, gave rise to this cause of action.

Issues:

16. There are two issues very significant to this case. Others have been suggested by the Counsels in their submissions. However, those other issues are minor in nature but are related to the issue of negligence. The other two issues are:

(i) whether the second Defendant committed the tort of negligence reflected in the tone of his letter of 23^rd August 2000.

(ii) The issues of time-barred.

I will deal with the issue of time bar first.

Time bar:

17. The counsel for the Second Defendant points out that Section 12 of the Agriculture and Livestock Act barred any action against any Officer, servant of the Government, inspector for any act done in execution of their duty, or any alleged neglect or default in the execution of any such provision, unless the cause of action be commenced within six months after the act neglect of default complained of.
18. I have read the section thoroughly. In fact I have read the whole Act. The Act has only thirteen sections. Indeed the Act does not provide for the duty the Agriculture Officer, Mr Louis Wale did. There is no provision provided for receiving the complaint of damages to edible trees like coconuts. There is no provision that upon recipient of such complaint an Agriculture Officer must proceed to site to verify the report and thereafter draw assessments or valuation.
19. S.12 specifically point out any act, neglect of default must be related to the duties provided for by the Act. In this case there was nothing, and Mr Wale was actually not performing specific duty alluded to by the Act. Therefore I must rule out that cause of action which must be reported or filed within 6 months provide by S.12 is not applicable in this case.

The issue of negligence:

20. Both counsels have engaged in arguing the issue of negligence quite extensively. Authorities are sited in support of their arguments.
21. Interestingly, the famous statement in Donoghue v Stevenson^[1] as quoted, is the fundamental basis of the argument by the Claimant’s Counsel. On the other hand, the Counsel for the second Defendant refers to the case of Caparo Industries Ple v Dickman^[2] which outline the three test to be applied where the issue of negligence is in the center of debate.
22. In my respectable view, there is no difference and variance in meaning and practical adoptation of the principle, and the test to be applied. In the Dickman case the language used was more or less modern and putting in perspective in numerical order.
23. Further observations contemplates that it could probably be difficult to proof, that the Defendant could able to foresee any damages would occur by reason of writing the letter. Further still, the relationship between the Claimant and the second Defendant is quite thin and may not be within sufficient proximity.
24. The Donoghue case attributes the same sentiment when it refers to a person also in closely and directly affected by the action of the Defendant, in which the Defendant could foresee be affected when he considers and turns his mind to what he did.

25. The letter written by the second Defendant on 23^rd August 2000, though not addressed to the Claimant but had all the reasons to directly implicate him. The crux of the letter was persuassively urging the Claimant to pay the cost of the damaged of 12 coconut trees. The second Defendant knew that the complaint was against the Claimant, and by implicating his name he had prior knowledge that the letter will be received by the Claimant some how.

“By writing a letter to the purported culprit, upon information received, without proper verification; is it a kind of circumsatnace advocated by the case of Glasgow V Muir^[3] where it said, “the court should consider that the person charged with the duty have reasonble anticipated as a natural and probable consequence of neglect..”

26. The enviroment in the Solomon Islands at that time was fluidity, and law and order situation was in total disarray. The author of the letter was an Agriculture Officer, Mr Wale himself. He was an educated man with permanent employment. He was expected to read the general situation in the country at that time.

27. Despite his familiarisation with the situation, the letter, though not addressed to the Claimant, but had direct implication on him as being responsible for damaging the coconut tress, therefore must compensate the damages.

28. The letter was copied to the person reported, and Police both in Auki and Atori. By not addressing or copying to the Claimant, impicated he was not intended to receive it, but the reporter; who then was expected to approach the Claimant after receiving. That was a bad administative management.

29. But that is not the point. The issue is whether by writing the letter desiring the Claimant to pay, without any verification of the damage, and considering the fragile situation in the country, has the second Defendant owe any duty to the Claimant? I think he did. What had happened was not a distressing accident.

30. Mr Wale could have foreseen that the reporter will definetly approched the Claimant with a copy of the letter and asked him for the money. Mr Wale in his evidence said the letter was a sort of working paper provided for negotiations. During ethnic turmoil stint there was hardly any nogotiations but rather succumbed by the use of force, duress and abuse a common rule of the day.

31. There is likelihoood that the complainant may likely to take advantage of the situation to benefit himself and probaly others. And that was exactly what had happened.

32. It was forseeable the letter be received and read by the Claimant, whether directly received or given by someone. In my view create a connection between the second Defendant (the writer) and the Claimant (the ultimate receiver). Therefore created a special relationship through communication mode. It is this communication relationship which the second Defedant ought to know, that anything said that will enhence dispute, will be capitalised on by the complainants considering the general environs in the country at that time. It was not a kind of a letter provided for a peaceful negotiations. In that instance, in my view, the second Defendant has a duty of care towards the Claimant. By breaching that duty of care the second Defendant had acted negligently in his duty.

33. Similarly, authors of letters intended to be received by someone ought to be conscious; the content and words used and said may have an inducing or demeaning effect that may amount to defamatory. Or that the content and the words used may likely to flare confrontation, or that someone may likely to capitalised on to cause unexpected results, as in this case. On that basis I am certain that the second Defendant has a duty of care towards the Claimant and that duty had been breached by him.

34. This is not a case where the cause of the result was of another option as advocated in the case of Wilser V Essx Area Health Authority.^[4] The letter actally was a contributing factor which the first Defendants acted upon demanding compensation and subsequently resort to violence.

35. Further, by failure to conduct a site visit to verify the truth about the damages complaint of, the second Defendant had breached his duty. At the end of the day, any report compiled by him will be received by the Claimant who will be required to act on the report should needed be. The second Defendant as I find was negligent hence breached that duty of care which he owed to the Claimant

36. On another approach, I think it is open to divert from the principle of negligence, and turn more on the noncompliance with the policy adopted universally by the Agriculture Officers in Solomon Islands. There is no documentation evidence of such before the court, but practically, it is an acceptable convention that any report concern damages of agriculture crops the authorities must make a site visit to verify the truth of the report.
37. There is no doubt, there must be some policy or procedural paper in place, to guide officers what ought to be done when reports or complaints of damages done to agriculture crops by someone.
38. These policies or procedures may not necessarily be provided for under the Agriculture and Livestock Act, but independently useful for the practical approach in such circumstances.
39. There is no argument that Mr Wale after receiving a complaint of damaged coconuts failed to make a site visit to verify the truth before drawing a monetary value assessment of the destroyed crops for compensation.
40. The tone of Mr Wale’s letter of 23^rd August 2000, failed to accommodate any room for negotiations nor did it provide a working paper at all. In fact it implicated the culprit (the Claimant) to comply with the letter and settle (pay) the amount of $1,800.00 as assessed.
41. It may be true Mr Wale may not have any knowledge of any dispute between the Claimant and the first Defendants, as a background history. The truth is that the first Defendants on 7^th September 2000, delivered the letter to the Claimant and demanded compensation. This was repeated on 9^th September 2000, when warning was given; should no payment was made by 13^th September 2000, the Claimant's village will be burnt and he be killed.
42. Apparently, the letter was used as a formal authorization to demand compensation, at the same time capitalised on to demand money as a common feature ocurred during the ethnic tension at that time.
43. The letter cannot be treated as a paper for negotiations, and should negotiations failed, a party dissatisfied should report the matter to Police. That notion is far beyond the language and the tone of the letter. One cannot expect a divine heart from every one in obedient to any suggestion. Different people have different mindset and have different ways dealing with issues.
44. The great failure, which Mr Wale attempted to divert is that, he cannot give excuses of insecurity. Police Officers were at Atori Police Station in the East, and Police Officers were at Auki. He should have sought assistance from Police for accompanying him or any of his staff to physically visit the site and file reports. At the same time verify the truth of the damages and filed assessment and valuation report. Unfortunately, this was not done. He had failed in his duties and of cause breached any work policy that was in place as guidance.
45. From Mr Wale’s actions his boss William Horia, Chief Field Officer (Malaita) affirmed in his letter on 21^st May 2001 addressed to the Minister of National Unity and Reconciliation. Mr Horia pointed out in paragraph 2 that work done by one of his officers (Mr Wale) contributed to the incident when he made a report assessment on crops damaged. Mr Horia was referring to non-compliance with a policy to conduct a site visit before filing of report and assessment of damages.
46. No doubt it is crystalline clear that the second Defendant is partly contributed to acts done by the first Defendants resulted in damages.
47. With the two approches applied, both seem to point to one conclusion, upon which I must therefore find the second Defendant had breached his duty of care and breached work guidelines therefore liable in contribution by his action in writing the letter. That eventually resulted in the incident ocurred on 13^th September 2000 where the Claimant suffered personal injuries and loss to his damaged properties.
    

Orders:

1. Order damages against the second Defendant for breach of his duty of care and contributory failure to comply with work policy resulted in Claimant suffered loss of damages to be assessed.
   
2. Order for damages related to personal injuries, damages to properties and loss of business is awarded to the Claimant to be assessed.
   
3. Order for interest damages be paid.
   
4. Cost be in the cause.
   

The Court.

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^[1] (1932) AC 562
^[2] (1990) 2 AC 605
^[3] (1953) AC 643, (1953) ALL ER 449
^[4] [1987] UKHL 11; (1988) AC 1074, (1988) 1 All ER 871.