Apaniai v Sunway (SI) Ltd [2019] SBHC 95; HCSI-CC 572 of 2017 (12 November 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Apaniai v Sunway (SI) Ltd
Citation:
Date of decision:	12 November 2019
Parties:	James Apaniai, Alphonse Waitara v Sunway (SI) limited, Silverio Paina, John Watepuru, Paul Tahunihoro, John Sunima
Date of hearing:	2 August 2019
Court file number(s):	572 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:
Order:	This Court hereby maintains consistency by awarding costs on indemnity basis against all the Defendants payable to the Claimants.
Representation:	Mr. P Afeau for the Claimants Mrs. F Waeta’a for all the Defendants
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Roobes v Barnard [1964] UKHL 1; [1964] AC 1129

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 572 of 2017

JAMES APANIAI AND ALPHONSE WAITARA
(Representing the Puanemonemo tribe) of East Are’Are, Malaita Province
Claimants

V

SUNWAY (SI) LIMITED
First Defendant

SILVERIO PAINA, JOHN WATEPURU AND PAUL TAHUNIHORO
(Trading as Ta’aiwara Corporative Association Company)
Second Defendant

JOHN SSUNIMA
(Representing the Warumanihura’aro tribe) of East Are’Are, Malaita Province)
Third Defendant

Date of Hearing: 2 August 2019
Date of Assessment: 12 November 2019

Mr P Afeau for the Claimants
Mrs. F Waeta’a for all the Defendants

DECISION ON ASSESSMENT OF DAMAGES

Faukona PJ: A claim in category A was filed on 24^th November 2017. Basically the claim was for general damages for trespass and conversion of natural trees and for destruction of environment. It also covers claim for aggravate or exemplary damages, together with interest and costs on indemnity basis.

2. On 7^th March 2018, the first and the second Defendants filed their joint defense. Unfortunately the third Defendant had failed to file any defense at all.
3. On 6^th June 2018, the Claimants obtained a default judgment against the third Defendant and a summary judgment against the first and the second Defendants.
4. There was no application by the third Defendant to set aside the default judgment, and neither an appeal was filed by the first and the second Defendants against the award of summary judgment.
5. Those failures therefore paved an opportunity for the Claimants to file this application for the court to assess damages prayed for in the reliefs.
6. At the submissions on 2^nd of August 2019, the Defendants rely on their amended written submissions filed on 2^nd August 2019, the very date nominated for hearing of the oral submissions. Despite being late the court proceeded to hear oral submissions.
7. Defendants’ submissions are based on certain issues such as delay in filing the claim, boundaries between puanemonemo customary land own by the Claimants and warumanihura’aro customary land own by the warumanihura’aro tribe which the third Defendant represented.
8. Other issues include trespass to land which the Defendants denied, therefore cannot be jointly liable for aggravated/ exemplary damages and costs.
9. There is also a paragraph in the submissions that states, since the assessment report of the Defendants deny any trespass into the disputed land, the Defendants ought to seek leave to allow their application to set aside the summary judgment and default judgment.
10. All the issues raised in the written submissions by the Defendants are issues should have been litigated at trial. This case has reached assessment stage which unfortunately cannot be reversed unless on good grounds.
11. The submissions that this Court considered granting leave to file application to set aside the two orders cannot be possible. One specific reason is that there is not even a draft application filed on foot.
12. However, the very ultimate reason is that the Defendants attested that trespass was not established, hence provided room for granting of leave to file applications to set aside. That notion seems to arise out of mischievous perception.
13. It ought to be noted that there is evidence identifying the three plots of land which are the subject of this proceeding. The plots of land are kavitahamere land, tamuranioe land and pianunuru land. Whilst the parties could agree that the main common boundary that divides Claimants land and the third Defendant land is the river Ro’a.
14. However those three alleged trespassed lands were located eastern side of the river Ro’a and have a common boundary with maniasiroto customary land which is part of the whole warumanihura’aro customary land owned by the third Defendant’s tribe.
15. The ownership and the boundaries of those three trespassed lands were confirmed by the decision of Hutohuto Chiefs’ Panel on 27^th August 2016, see accepted settlement form dated 27^th August 2016. That decision was never referred to an appropriate Local Court. However, the Defendants disputed the brief decision on the form as not the decision of the Chiefs. It may be true, but the overwhelming perception is that at least the Chiefs had given their decision and affirmed as to who owned the disputed land. That brief decision can be relied on by the parties and I can permit to be so. Not only that, but the real decision was attached to the Accepted Settlement Form.
16. Therefore the argument by the Defendants denying any trespass into the three lands based on the understanding that no logging operation entered into the alleged trespassed area by crossing over the river Ro’a cannot be accepted. That is a pure misconception of the entire claim. It has been made clear by evidence and the Chiefs decision that those three lands were located east of river Ro’a and which shared a common boundary with maniasiroto land which is part of warumanihura’ao customary land own by the third Defendant and tribe. Thus enabled me to conclude that the argument advance by the Defendants was misconceived in relation to trespass and I therefore cannot be accepted. In fact the privilege to raise such argument was by gone during trial. In effect a Summary judgments and Default judgment had been given and there was no disturbance as to their stand right up to this moment.
17. Apparently the argument raise by the Defendants in their written submissions cannot be relied upon and are raised too late. Even the report compiled by the Defendant is not of any assistance at all, it merely attempting to affirm no logging activities had crossed over the river hence no trespass. That too must be rejected.
18. All in all the submissions rely by the Defendants do not assist this Court in considering assessment of damages. What materializes is an attempt to divert the Court process to grant leave to file applications to set aside the orders. It may not be possible now. The orders were made one year and twenty eight (28) days ago. And there was not even a draft application on file.
19. The third Defendant who represented a tribe which owned the land grant timber rights could not bother to file a defense and even couldn’t bother to file a referral in the appropriate Local Court against the Chiefs decision which takes away his rights of ownership to the three trespassed lands. Of Course I will refuse to grant any leave to file any application to set aside now.
20. At this stage it is most convenient to consider evidence related to assessment of damages submitted by the Claimant. The Defendants submission have nothing to do with the assessment of damages; even so very vaguely and which of no assistance at all. Mostly for the purpose of supporting denial of the trespass which judgment orders had been made against them?
21. The orders that were entered by the Court on 6^th June 2018, made it clear by amending all the category of damages against all the Defendants including costs on indemnity basis.

General damages for Conversion of trees.

22. The assessment of damages as far as conversion of trees are concerned, the Claimants rely on the report compiled and filed by Mr. Wallen Hite, the Chief Forest Officer with the Ministry of Forest and Research. There is no other evidence in terms of report filed by the Defendants.
23. The report confines to the trespassed areas claimed which is part of puanemonemo land, in particular the three customary lands, the subject matter of this case. The basis for the report was to carry out assessment of logs illegally felled within those three lands. The methodology applied was scaling of felled logs and stamp counts. The stumps were measured and their volume determined using FRIS information from Forestry inventory which records the average tree stamp in volume for each region.
24. The report revealed that a total volume of logs felled and exported is 1,710 cubic meters at a price of US$126.00 per cubic meter. This should bring about a total in US as #215,460.00. When converting that amount into Solomon dollars it is $$1,243,038.00.
25. I therefore award damages under this heading in the sum of SI$1,243,038.00 in favor of the Claimants for conversion of logs felled within the three lands trespassed onto by the Defendants.

Trespass to Land and destructing of environment.

26. To assess trespass to land and destruction of environment the Claimants rely on a report compiled and filed by PM and Associates Environmental Consultancy. The principal partner is Mr. Paul Marita.
27. The report stated that the area trespassed upon was 57.52 hectares. Damages were mainly caused by felling and excavation. There was no buffer zone established to protect gardening areas and prevent soil erosion and water pollution. Coastal mangroves forest has been destroyed as well.
28. Attach to the report is annexure (1) which contain compensation amounts in a particular area of damages concerning environment.
29. In table (1) compensation for contingent cost of biodiversity in those areas total amount to $150,000.00. I do not know if there is any formula in valuing of damaged areas. But I noted. I think item (2) and (3) are most important in the table which valued at $80,000.00. I do not think table 1 (1) is relevant. Item (2) and (3) is perceived as subsuming cost in compensation of item (1). Therefore I awarded $80,000.00 for that item.
30. Table 2 concerns rehabilitation cost of natural ecosystems. I accepted $50,000.00 for rehabilitation of top soil, water course ways and reforestation of native trees, shrubs and encouraging underground and understory cover.
31. In respect of the second part of Table 2, I do not think it is necessary hence abate. For third to the fifth part of Table 2 I accept and award damage as assessed. Total awarded is $200,000.00.
32. For Table 3, natural and wildlife I awarded all the items except for item four which in my view a repetition of Table 2 item (1) and item (7) which I think are not relevant as well. Therefore, total awarded under table 3 is $275, 000.00.
33. The total awarded So far as environmental damages is concerned as assessed and accepted is $555,000 (USD), converted to Solomon dollar using the rate 0.13 comes to $4,269,230.77 Solomon Islands dollar.

Aggravated damages.

34. The objective of award of exemplary or aggravated damages is to compensate the plaintiff/claimant for the harm done. Secondly to punish the defendant for his conduct in inflicting the harm. This is called punitive, exemplary, aggravated, or vindictive damages. This type of damages is awarded whenever the defendant’s conduct is outrageous to merit punishment for disclose malice, fraud, cruelly, insolence or the like.^[1]
35. In reality this is extra compensation to the plaintiff for the inquiry to his feelings and dignity^[2].
36. In this case there is evidence which establish the Defendants had desire and determined to enter the three customary lands to fell logs and make profit. They urged by forcing the chainsaw operators to trespass on to the lands to fell logs and make profit. The reason being there were a lot of merchandised trees in the trespassed areas.
37. The boundary of the trespassed lands was marked with paints indicative that lands beyond area are not under the concession area granted. However, the Defendants paid no attention. Yet the Defendants defied instructions. This is the kind of behavior which must be punished by way of aggravated damages. Entry or trespass into those lands and extracted logs was not done by accident or ignorant but by deliberate invitation motivated by financial gain.
38. The Claimants concluded by calculating taking the amount of $1, 243, 038.00 as the total figure for claim for conversion of trees and then divided that by ½ the final amount is SI$621.519.00, I must award that amount for aggravated damages.

Joint and severally liable.

39. There is no dispute that all the Defendants participated one way or another in carrying out logging activities on the trespassed lands. The first Defendant was the contractor and the second Defendant was the licensee. The third Defendant represented the landowners who granted timber rights.
40. It is perceived fit to award liability for compensation against all the Defendants jointly and severally.

Interest.

41. Interest on damages and Conversion of trees and environment damages is hereby awarded at 5% per annum commencing from the 24^th November 2017, the date the claim was filed until the amount of damages have been fully paid and settled.

Orders:

Conclusively, total damages awarded after assessment are:

1. Conversion of trees $1,243,038.00
2. Trespass and destruction to environment $4,269,230.77
3. Aggravated damages $621,519.00
4. Total damages awarded is $6,133,787.77

COSTS.

According to Orders obtained on 6^th June 2018, costs on indemnity basis was awarded. This Court hereby maintains consistency by awarding costs on indemnity basis against all the Defendants payable to the Claimants.

The Court.

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^[1] Mc Gregor on Damages, 15 Edition, P.254.
^[2] Roobes v Barnard [1964] UKHL 1; [1964] AC 1129.