Maina v Kalola [2019] SBHC 8; HCSI-CC 413 of 2014 (8 February 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Maina v Kalola
Citation:
Date of decision:	8 February 2019
Parties:	Titus Maina and Emmanel Laore v Joseph Kalola, Paul Buare, Tri-Jam Enterprises Limited
Date of hearing:	6 November 2018
Court file number(s):	Civil Case Number 413 of 2014
Jurisdiction:	Civil
Place of delivery:	High Court of Solomon Islands
Judge(s):	Faukona PJ
On appeal from:
Order:	The Defendants are liable jointly and severally for the sum of $319,100.00 on damages for trespass and environmental damages. The Defendants are liable jointly and severally for conversion of trees in the sum of $607,551.17 The Defendants shall pay the cost of the assessment on standard basis in the total sum of $55,000.00 in accordance with Schedule 3 Scale of Costs for Category A Proceeding inclusive for all reserved costs and interlocutory hearings and this assessment. The total sum of damages and costs be paid within 28 days. Where costs are disputed, they should separately be assessed, if not agreed.
Representation:	Mr. B Kaihuna for the Claimants Mr. M Tagini for the Second Defendant No one for the First Defendant (Mr Tegavota after judgment had absent himself since)
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Koleleana Development Company Ltd v Amiki, Patty v Tikani, Hall v Barclay, Chaplin v Hicks , Lanimae v Mega Enterprises Ltd, Kikile v Kalahaki Organic Earth Company, Attorney Genera

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 413 of 2014

TITUS MAINA AND EMMANEL LAORE
Claimant

V

JOSEPH KALOLA
First Defendant

PAUL BUARE
Second Defendant

TRI-JAM ENTERPRISES LIMITED
Third Defendant

Date of Hearing: 6 November 2018
Date of Decision: 8 February 2019

Mr. B Kaihuna for the Claimants
Mr. M Tagini for the Second Defendant
No one for the First Defendant (Mr Tegavota after judgment had absent himself since)

DECISION ON ASSESSMENT OF DAMAGES

FAUKONA, J: In this application, the Claimants are seeking assessment of damages for trespass and conversion of trees on rorau customary land, in the Shortland Islands, Western Province.

2. This application is necessary following judgment of this court against the third Defendant on 11^th May 2016 and against the first and second Defendants on 6^th March 2018.
3. By orders dated 12^th October 2017, the Defendants are barred from challenging the survey reports. Therefore the reports are accepted as conclusive. The basic reason for the order is because the Defendants had defied the orders of this court by failing to meet part of the cost of surveying the land. Their failure had contributed to delay in conducting the survey, hence necessitated the order.
4. The ownership issue concerns land known as rorau customary land had gone through formal litigation processes, before the Local Court and the Customary Land Appeal Court.
5. The Claimants’ version is that rorau land was a bigger portion which subsequently being sub-divided. Lot 1 of LR 320 was part of it which was registered and its parcel number is 019-001-44, and the remainder is customary land. The customary land was also subdivided in custom, one of which was awarded to Mr Kalola by the Local Court in 1987. The boundaries of the land given to Mr Kalola was measured as 735 yards x 460 yards and 583 yards. Converting yards into modern metric measurement in meters, would be 672.08, x 420.63 x 533.10 meters.
6. The boundaries of rorau customary land were settled by the Western Customary Land Appeal Court (WCLAC), as well as the portion given to the first Defendant by the Local Court.
7. The first Defendant contracted the third Defendant to log by felling and extracting logs for sale from the portion with boundaries defined by the above measurements. The second Defendant also contracted the third Defendant to log rorau portion of customary land which is outside of the boundaries measured as above.
8. The Claimants aver that in the course of the logging operation the third Defendant entered rorau customary land, which subsequently awarded to them by the Local Court on 14^th October 2015 and affirmed by the Customary Land Appeal Court on 28^th October 2016.
9. As a result logs were illegally removed and sold, and damages were caused to the land.

Trespass to land.

10. In regards to trespass to land, the survey report ascertained that 7 hectares within rorau customary land own by the Claimants was logged by the third Defendant. About 176 trees of commercial value were identified to have been removed. There were damages to the land, forest as well as biodiversity.
11. From evidence it is clear upon finding that the Defendants had entered rorau customary land own by the Claimants. Upon entry they constructed roads, removed top-soil, fell merchantable tress took them and exported, and benefited themselves of the proceeds.
12. The major issue is what is the proper assessment of damages and the quantum of damages the Claimants are entitled to recover?
13. The tort of trespass to land is actual per se. This means that damages can be recovered without proof of loss. The purpose of an action in trespass to land is not merely to compensate the plaintiff for damages to land. That action also serves the purpose of vindicating the plaintiff’s right to the exclusive use and occupation of his or her land.^[1]
14. In the midst of uncertainty, if there is, a fine pertinent exaltation is expressed in the Halsbury’s law of England^[2], which provide;
    • “In a claim for trespass, if the claimant proves trespass, he is entitled to recover nominal damages, even if he has not suffered any actual loss. If the trespass has caused the claimant actual damage, he is entitled to receive such an amount as will compensate him for his loss. Where the defendant has made use of the claimants land, the claimant is entitled to receive by way of damages such a sum as should reasonably be paid for that use. 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 of exemplary damages, the general damages may be increased.”
15. It is apparent by that authority, that having proved trespass, the Claimant are entitled to damages in four areas if the facts give rise to those areas are manifestly proved., in particular the second to the fourth circumstances.
16. Other assistance related to damages for trespass can be obtained from a broad perspective outline by the cases of Koleleana Development Company Ltd v Amiki^[3] and Patty v Tikani^[4].
17. In the case of trespass on customary land, the claimants would be entitled to claim for all damages to the land as a result of illegal logging activity by the first, second and third Defendants.
18. The principle on recovery for damages to trespass to land is that the owner of the land is entitled to be restored, as far as money can do, to the position he would have been in had the wrong not been suffered^[5]. In other words a successful claimant in a trespass action is entitled to a sum of money which will put him, who was injured or suffered, in the same position he would have been in, if he had not sustained the wrong for which he now getting compensation^[6].
19. In terms of conversion the Kololeana case had elaborated extensively as follows;
    • “The normal measure of damages for conversion is the market value of the goods (trees) converted. This is well settled in land, that the proper measure is the value of the goods at conversion. In Hall v Barclay it stated, “where you are dealing with goods which can be readily bought in the market, a man whose rights have been interfered with is never entitled to more than what he would have to pay to buy a similar article in the market.”
20. There is an argument advanced by Mr Tagini relying on Patty v Tikani that in some cases the diminution of value would be the cost of restoration, but as a general rule it would be less.
21. In this case, the Claimants do not claim any costs of restoration, but confine to actual damages caused to the land and environment, and for the value of trees taken from their land.
22. Trespass as claim in this case involved intruding unlawfully in rorau customary land by the Defendants and constructing, felling of merchantable trees and destruction of environment. The act of trespass continued until January 2015 despite restraining orders on 8^th December 2014.
23. The Claimant’s submissions have pointed out that they do not obtain any quantification from a professional valuer, but they obtained assessment from the Environment Division and from a Surveyor. The reports had been filed which assist the court to determine the question of damages.

Assessment of damages to Land.

24. It is noted damages in terms of trespass to land is both compensatory and restitution, and in the current case is compensatory. According to the report Exhibit “WM2” attached to sworn statement of Mr Mabulou filed on 22 November 2017, shows there were no main access road constructed, but rather skidding roads were found zigzagging everywhere. However, there was no expression as to the length of the skidding roads shown by the report.
25. In deed there was no proper quantification from a valuer or assessor, however, cannot present the Claimants from recovering damages for loss see Chaplin v Hicks^[7].
26. The report also shows that an estimate of 7 hectares of land was encroached upon by the first and the third Defendants where logging activities actually took place. Sadly no measurement of the length of the skid marks was made. Would that mean every single square meter in the 70,000 square meters was damaged? I do not, for a moment, imagine that could have been done. I would rather consider awarding half of 70,000m’. The formulae applied by the Claimants is rather exaggerated, if not, mistakenly calculated.
27. In the absence of proper or accurate measurement of skid tracks within the 7 hectares of land, it would be difficult to calculate. The maps the Claimants refer to as professing calculable formulae does not assist in any way. There was no skid marked tracks demarcated on the maps or a number of skid marks tracks and the total length of measurement of all the skid tracks. Without the availability of such it would be difficult to calculate. I do not accept using 7 hectares or 70,000m² and multiplied by the going rate to give value of total damages caused.
28. The going rate used by the Claimants is different from the already acceptable rate of $7.50 per square meter. That rate had already been accepted by the court in a number of cases, including Lanimae v Mega Enterprises Ltd^[8]., Kikile v Kalahaki^[9] and others. Therefore, to ascertain consistency, I will accept the old rate.
29. 70,000 m² ÷ 2 = 35,000 m² x 7.50 - $262,850.00 is awarded for damage to the land.

Assessment of damages to environment:

30. Again the extent of Defendants operation covers 35,000 m^2, and not 7 hectares to be used to calculate the assessment. The report by the Environment Division outlines three heads in which environmental damages can be assessed. They are compensation Damage Cost (DCDC), Rehabilitation and Replacement Cost (RRC), and Willingness to Accept Method (WTA).
31. The major environmental damage was identified as lowland forests. There are number of stream (no indicated) and the Toanapine River. The river which connects to costal wetland was badly damaged with logging activities. In some locations, especially ridges and valleys were also damaged due to the operation and road works, skid tracks and felling.
32. The report also covers different types of forests, for instance cloud forest, low land and high land forests. Those forests are significant habitats for ecosystem for diverse terrestrial fauna and flora, which are rich with birds, insects, lizards, butterflies and others. These forest are destroyed and damaged by logging.
33. The forests are virgin with potential values for gardening, collecting water, local medicines, and bush material. Unfortunately those resources are heavily damaged.
34. There is also report on damages to swampy environment which forms the wetland ecosystem. Wetland acts as a buffer area to protect marine and coastal runoffs which can cause pollution. The wetland ecosystem is also damaged, with surrounding environment which is risk from pollution and destruction.
35. The report resume to an estimate costs associated with environment damages. The considered compensation due to alteration of environment is $8.80 per meter square multiple by total area of damage of 7,500 m² x $8.80 = $66,000.00. I will only accept the going rate which is currently the rate appear in court records. The calculation is 7,500 m² x 7.50 = $56,250.00.
36. I would agree with the Environment Officer’s formula calculating the damages to the environment. As I have said earlier not every square meter within the 7 hectares of land intruded was damaged. It could be unbelievable to think such extent of damage occurred.
37. The second head recommended by the Environmental report for assessment is the cost of rehabilitation of the environmental damages. Upon reading the case of Patty v Tikani^[10], His Lordship explain so vividly clear that, “the measure of damages in such a case would be the amount by which the land has been diminished and not the cost of restoration. In some cases the diminution of value would be the cost of restoration.”
38. From that authority, it would appear that the compensation to be awarded is to cater for the alterations of environment. Simply, the amount by which the environment was diminished is the measure of damages and not for restoration or rehabilitation.
39. Should there be plan in place for restoration of environmental damages, there must be evidence by the Claimant showing their intentional work plan to restore the damages. There is nothing in place or nothing to show.
40. The second reason for not permitting such compensatory assessment is because, in the tropical region alteration or damages to environment or forest is perceived as temporal. Naturally they rehabilitate themselves over a period of time much faster than temperate regions. This is because of the kind of climate they attached to in the tropic. After then landscape and all ecosystems resume gradual rehabilitation which eventually will restore and rehabilitate the damages.
41. Based on my personal perception I would refuse to grant the amount of $521,320.00 as for rehabilitation for environmental damages.
42. In respect to $200,000.00 as being for value of ecosystem and its unidentified biodiversity, I do not think the Defendants can be termed as willing party to accept and to cooperate for the loss. In fact the Claimants have admitted the report is not so helpful how the sum come about and calculated. There is no evidence to show the reality or the logic for such damages and its value. No formulae or calculation is shown. I must therefore dismiss this head as a claim for damages of loss.
43. In terms of conversion of tress, there is sufficient evidence showing that 196 stump of various species were felled and exported for sale. They represent an estimated volume of 592.996 m³. Also of significant, the Claimants are using the same exchange rate in the Defendants’ application which is 7.99.
44. According to the calculation, the volume of 592.996 m² should value US$76,051.84. Using the exchange rate in converting US dollar to SI dollar will come to $607,051.17. That amount is proven to be the value of conversion of 196 trees.
45. There is argument that the 196 stumps comprise of various species of which some are of low grade. Whether some of the stumps comprise high or low prices, the fact is that the Defendants had entered the Claimants’ land without any timber rights processes and without their knowledge. To put it simply, the Defendants had trespassed unlawfully onto the Claimants’ land. Therefore they have to equally compensate for the trees they had felled and exported for sale, despite various species.

Total damages awarded:

45. Total damages awarded to the Claimants in terms of monetary assessment are as follows:
    • Damages to land $262,850-00
    • Damages to environment $ 56,250-00
    • Damages for conversion of trees $607,551.17
    • Total $926,651.17

ORDERS:

1. The Defendants are liable jointly and severally for the sum of $319,100.00 on damages for trespass and environmental damages.
2. The Defendants are liable jointly and severally for conversion of trees in the sum of $607,551.17
3. The Defendants shall pay the cost of the assessment on standard basis in the total sum of $55,000.00 in accordance with Schedule 3 Scale of Costs for Category A Proceeding inclusive for all reserved costs and interlocutory hearings and this assessment.
4. The total sum of damages and costs be paid within 28 days.
5. Where costs are disputed, they should separately be assessed, if not agreed.

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

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^[1] Australia Text on Remedies, Wright, The Federation Press, 2010.
^[2] 4^th Edition, Volume. 45(2), London, Butterworth’s 1999.
^[3] (2003) SBHC 134; HCSI-CC 83 of 1998 (28October 2005)
^[4] (2002) SBHC 50; HCC CC 197 of 2000 (26 July 2002)
^[5] (188) 5 appeal Cases 25
^[6] Ryan v White (2012) Conlii 13805.
^[7] (1999) 2KB 786.
^[8] Case No. 183 of 2008 (8 March 2011)
^[9] Case No. 431 of 2007 (31 August 2011)
^[10] Ibid(4).