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Kiritee v Ome [2021] SBHC 51; HCSI-CC 387 of 2011 (20 April 2021)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Kiritee v Ome


Citation:


Date of decision:
20 April 2021


Parties:
Fangidua kiritee v John Ome, David Suiti, Alick, Attorney General


Date of hearing:
8 December 2020


Court file number(s):
387 of 2011


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Faukona; DCJ


On appeal from:


Order:
1. Award total cost for damages and loss of earning @ $2,712,646.90 to the Claimant.
2. Defendant 2 to pay (1/3) of awarded damages as assessed @ $904,215. 63 to the Claimant.
3. Defendant 1 to pay (2/3) i.e. $1,808,434.27 to the Claimant
4. Costs of this application is to be paid by the Defendants (1) and (2) as in the percentage as awarded above.
5. Defendants (1) and (2) to pay costs of Claimant’s Counsel (Rule Ch.24 Schedule 3 Part 3) according to the percentage sharing as above.
6. Part 3; no award concerning physical injuries sustained, they were not being pleaded in the amended claim.


Representation:
Mr. N. Laurere for the Claimant
Ms. F. Fakarii for the Second Defendant


Catchwords:



Words and phrases:


Legislation cited:


Cases cited:
Livingstone v Rawyalds Coal Co. [1858] 5 App Las 25,39, Tion v Court Appointed Manager DBSI [2008] SHBC 9

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 387 of 2011


BETWEEN


FANGIDUA KIRITEE
Claimant


AND:


JOHN OME, DAVID SUITI, ALICK LIUNA
1st Defendant


AND:


ATTORNEY GENERAL
(Representing the Assistant Field Officer and the Ministry of Agriculture and Livestock)
2nd Defendant


Date of Hearing: 8 December 2020
Date of Decision: 20 April 2021


Mr. N. Laurere for the Claimant
Ms. F. Fakarii for the Second Defendant

DECISION ON APPLICATION FOR ASSESSMENT OF DAMAGES

Faukona DCJ: This is an application for assessment of damages filed by the Claimant on 11th October 2019. This application was necessary after the final judgment was entered for the Claimant on 28th February 2018.

  1. The issue of apportionment was a concern to the Defendant in her submissions. She attested that value of liability should be apportioned according to actual indulgent. Whilst I agree to that, the Counsel for the Claimant submits that value of liability should be in the terms of jointly and severally liable.
  2. One way or another, both Counsels are correct to some extent. However firm reliability should be based on the claim itself with various categories of damages pleaded. From that urge, I hereof read the amended claim filed on 21st November 2013.
  3. In the amended claim reliefs that were sought were 3. Relief one is damages against the first Defendants for trespass and damages to land and properties to be assessed. Secondly, for personal injuries inflicted on the Claimant and members of his family, and for loss of business.
  4. The second relief was for damages against the second Defendant for negligence, and loss of business to be assessed.
  5. Claim for interest, damages and loss of business is a relief common against both Defendants. In other words both are jointly and severally liable under this category of damages.
  6. Apparently reading from the amended claim and the reliefs sought apportionment of liabilities had been done. It needs only to refine before full responsibilities can be valued and apportioned. Simply mean, any award for damages after assessment must be confined to the reliefs as pleaded against each Defendant. Therefore the circumstances of this case will meant joint and or severally liable which apply to more than one Defendant, is a general comment and prescription in law which do not apply fully in this case, but I have taken that into consideration.
  7. The purpose for award of damages, in general term, is to compensate the Claimant into the position as if the tort had not happened as far as money can possibly buy.
  8. In the case of Livingstone V Rawyalds Coal Co.[1], the Court stated, the fundamental principle to an assessment of damages is that the Claimant should be fully compensated for his loss. He is entitled to be restored to the position that he would have been in, had the tort not been committed, insofar as this can be done by the payment of money.

General Observations.

  1. To assess the damages against the Defendants it is incumbent to reflect back to their actual involvement in the entire episode.
  2. In the early stages of the dispute, the first Defendants requested the second Defendant to assess and value the alleged damage for 12 coconut trees.
  3. By a letter dated 23rd August 2000 the second Defendant assessed the value of 12 coconut trees to the sum of $1800.00 It was that amount the first Defendants demanded from the Claimant to pay, but the Claimants either failed to pay or deny, or wish to seek second opinion and proper assessment before payment was made.
  4. In any event nothing was paid despite demands on 7th September 2000 and 9th September 2000. On 13th September after two occasion of demand was failed, the first Defendants resumed their act of violence and damages.
  5. I noted the Counsel for the Claimant emphasized quite strongly a point that the second Defendant should have known the first Defendants who had been involved in militant activities and should have exercised caution before writing the letter.
  6. For the whole of the year 2000, was the year of ethnic turmoil. Public knowledge would dictate that indeed had embedded civil services with defunct negativity which brought down law and order to its unprecedented state; it was a period of fear, chaos and insecurity.
  7. Culminated from that state of affairs the Assistant Field Officer wrote the letter and attached to it was the valuation of 12 coconut trees (alleged to have been damaged) at a total of $18000.00.
  8. As noted from H. Masae’s sworn statement of 15th April 2019, the parties had been indulged in land dispute previously before the incident. Hence it is foreseeable that the first Defendants were capitalizing on the fragile situation to advance their anger. However, despite any condemnation, they sought the value of 12 coconuts trees and demanded for payment.
  9. What exactly occurred when the demand was not met was the ruthless act exerted. From the perceptions it was deemed as a game to express their anger culminated from a long standing land dispute.
  10. Hence, it would not be easy to assess the negligent act by the second Defendant. However, it would be based on the specific categories of damages as specified in the relief. No doubt we have to pin to the result where no formulae is available.
  11. Yet another consideration is based on the figures pleaded and particularized in the claim which seemed fixed. There are no such words as “not limited to” used in order to either accelerate or reduce the figures.
  12. In the various sworn statements filed in support of the application the new figures had accelerated to new heights and some damages not even pleaded in the claim. It would be in my opinion, we confine to the damages pleaded with certain values attached to them, rather than diverted from the core issues pleaded.
  13. Focusing on the damages incurred for being disturbing the airport project, I have read the evidence of relevant authorities that supports the project. The construction of the airport on the Claimants land was a family initiative supported by relevant government agencies.
  14. If it was constructed in accordance to Government policy framework, there should be public tender put out. It may seem that the project was the sole desire of the Claimant and his family supported by the government, Province and UNDP.
  15. I have read reports of the ground work on feasibility study, but there was nothing reported on viability and preferential expected where Atoifi airport is just 2-3 minutes flights from the newly constructed airport. With the two airports so close what is the economic viability and services expected from such developments, or is there a problem with Atoifi airport.

Specific Categories of Damages.

Damages to residential houses.

  1. I refer to the amended claim filed in 21st November 2013. At paragraph 12, the estimated value for damages to residential houses is in plural that is $1,005, 125.00. Noted, there is no words as “not limited to” attach to the estimated amounts standing to particular damages.
  2. In the residential category I make reference to the sworn statement filed by Mr. Mani on 16th September 2019. In his statement at paragraph 13, he affirms the total claim for 4 residents at total cost of $1,005,125.00 which is the same as the amount pleaded in item (a) in the amended claim. That costs related to the Claimant and Mr. Suifasia’s evidence is the same as in the rebuilding cost identified in paragraph 7 of Mr. Misimake’s Valuation report.
  3. However, there are differences in two other residences in respect of replacement cost which Mr. Misimake forgo the original cost but relied on one cost calculated with one common amount.
  4. In fact the Misimake’s Report concerns only on re-building cost (in the words of Mr. Mani).
  5. According to Mr. Mani’s sworn statement the rebuilding cost is the same as the overall amount claim and pleaded in the claim, that is, $1,005,125.00. On the other hand, the Misimake Report calculated the total replacement cost as $3,015,975.00. For time being I must disqualify the figure in the report on the value of damages to residential houses.
  6. Noted from Mr. Mani’s sworn statement, the estimated current cost for re-building is three times (3x) in value from the cost ten or eleven years ago. Conclusively it is an increase of 300%.
  7. For instance in Exh SM5 is a pro-forma invoice issued by Solomon Sheet Steels Ltd on 5/9/2019. The invoice indicated that for one sheet iron roofing, 12 feet long, 24 gauge cost $204.00. On the date of destruction the price could have been for the same equals 68.00.
  8. In another instance is the cost of one bag 50kg cement which was $48.00 at that time, now its $66.00. That’s not an increase of three times which would have been $144.00 now, but an increase of about 37%.
  9. This shows what appears in Exh. SM-1 to SM-12 is exaggerated figures and which is not convincing. The same seem to appear in the report filed by Mr. Misimake. I doubt if Mr. Misimake had conducted a physical assessment. If he had done so, he would have filed a report more convincing and almost as near to accuracy, as a qualified and registered valuer.
  10. On the overall assessment there is no evidence at all to suggest, at least, as near as to accuracy the cost or value of damages. There is no evidence provided in respect of the length of the houses the breadth; were the houses full permanent or partial. By providing that information the Court would be in a better position to assess the likely value of damages to each house.
  11. I noted in Mr. Misimake’s Valuation report that there was a site inspection and investigations conducted by his team. Accessing to site was a privilege his team had and there must be evidence to show the sizes of the houses. If concrete posts remain standing, that should be evidence to indicate the sizes of the houses. With the report, more evidence is required, but it’s not in this case. Thus giving the court difficult time to accept the real values submitted. Therefore I must exercise my powers to reward the values which I think are best fitted for each house.
  12. I disagree that cost of houses now is 300% increase or value 3 x high than house built 10 – 11 years ago. In fact as I have calculated the increase is only 37% which is not equivalent to 3 x costs.
  13. The question now, is the original costs of these houses as they are in the amended claim. There is no evidence to proof. What is available before court in one residence house and its value, with no other evidence? Therefore I must reject that. The following are awards I granted as value for all resident houses damages considering the fact they were all built in local rural community.
(a)
David Kiritee’s House
I award
$50,000.00
(b)
John Suifasia’s House
I award
$30,000.00
(c)
Stephen Mani’s House
I award
$75,000.00
(d)
Fangidua Kiritee’s House
I award
$75,000.00

Total
$230,000.00

Other buildings.

  1. Other buildings entrenched in the amended claim are, sawmill shed, cafeteria house, tractor garage, kitchen house, Kingdom Hall (Church), Store building (double floor) and boat building shed.
  2. Again the starting point is the estimated values of those buildings as pleaded in the amended claim. I reject any 300% increased in the improvement values as exerted in the tabled produced by Mr. Mani and Mr. Misimake in their sworn statements. The Misimake report concerns only on the replacement costs which is 300% or 3 x (3 times) increase in value from the date of damages which is eleven 10 or 11 years ago.
  3. As I have calculated the increase of costs of materials from 11 years ago until now is only 37% gathered from the evidence and reports. I noted those reports were filed after the judgment.
  4. The second aspect of assessment is whether the value as shown as costs pleaded in the amended claim are near as possible as being the costs of those buildings. There is no evidence particularizing the sizes of the buildings. Whether they are leaf huts, permanent buildings, or partial permanent? The sizes would mean the length and the breadth. If some are high buildings then were parts made of wood, galvanized iron or column posts.
  5. For instance the Church building loss of damage is $200,000.00 whilst the store (double floor) is $300,000.00. The store building must be bigger than the Church building any way.
  6. I noted in Mr. Iromea’s report that he used 25% increase from the initial costs. Perhaps that should be near as possible; I could rather use that percentage.
  7. Therefore I am left with no evidence to assist me. Hence I must award as nominal amount I think would be as near as possible.
(a)
Assessment value of loss of sawmill shed
$5,000.00
(b)
Assessment value of loss of Cafeteria house is
$15,000.00
(c)
Tractor garage is
$2,000.00
(d)
Kitchen house is
$4,000.00
(e)
Kingdom Hall is not damaged but deserted
$5,000.00
(f)
Store house is
$50,000.00
(g)
Boat building shed not pleaded no payment


Total
$79,000.00

Damages to Agriculture projects.

  1. The cattle projects were not pleaded in the amended claim so I have to forego them.

Damages to piggery houses

  1. Mr. Iromea’s report attached to his sworn statement filed on 8th August 2019, is by far the kind of evidence which is of assistance. With the piggery house it was calculated from the size of the building, the number of roofing iron estimated to be 26 piece about 9 feet long. The price for iron roofing is calculated according to Manis’ report Exh SM5. For 10 feet long iron roofing is estimated at $200.00 for one piece, for 26 pieces the prize should be $5200.00. For concrete slap floor it will cost roughly 10 bags of cement. Current prize in almost every hardware is $66.00 per bag. Total should be $660.00 plus gravel and sand which estimated to be $340.00. For 20 pieces of timber of 6 x 6 and ‘4 x 4’ could have cost about 4,000.00. Labour cost would be about $2,000.00. Therefore total calculated cost would be $12,100.00.
  2. The second piggery house would also have the same total cost of $12,100.00 as in the first one above. Total awarded is $24,200.00.

Damages to poultry building.

  1. The amount calculated as being the cost of damages to the poultry building is $20,000.00, that was the amount which was pleaded in the amended claim. Again there is no evidence to establish the size of the building, the kind of material used, whether it’s permanent or partial. In the absence of such it is difficult to calculate and assess the cost of the building. I noted from the materials that at the time of damages there were no chicken birds in the poultry house. The cost I would calculate and award is $7,000.00

Damages to Copra drier building.

  1. The estimated value for damaged of the Copra drier building pleaded in the amended claim is $75,000.00. I noted the report as drawn by Mr Iromea in paragraph 4. The likely roofing iron sheet used is 76 sheets the length should be 10 feet. The prize is indicated by Mr. Mani’s sworn statement should be about $200.00 per sheet, for 26 sheets is equaled to $5,200.00. Ridging iron should cost $18.00 x 3 equal to $440.00 – refer to prizes disclose per pro-forma invoice in Exh. SM – 5 in Mani’s sworn statement. For five drums with current price is $60.00 per drum, total should $300.00 (current prize from Solomon Motors).
  2. For walling of flat iron sheet, there is no hint (evidence) as to prize so I resume to minimal and should be $2000.00. Timber studs for 12 pieces (3 x 2) is estimated to be $200.00. Two bags cement used should cost at current prize of $66.00 per bag total $132.00. In respect to roofing nails there is no hint in evidence so I refer to Exh SM1 attached to Mani’s sworn statement listing prizes of nails in the invoices as 625 x 4 equals $2620.00. The total value of damage for copra drier should be $10,892.00 which I award. $75,000.00 as pleaded in the claim is an exaggerated figure.

Damages to Sawmill shed.

  1. The claim for damages for sawmill shed as pleaded in the amended claim is $15,000.00. In Mr. Misimake’s report attached to his own sworn statement filed 30th July 2020, stated that replacement of sawmilling shed is $12,540.00. There is no further evidence as to materials used, whether it was a permanent or semi-permanent shed, even no evidence as to amount of timber used. In the midst of lack of evidence I award minimal amount of $5,000.00.

Damages to Cafeteria house.

  1. The damages done to Cafeteria house according to the amended claim is $50,000.00, and for improvements costs is estimated at $150,000.00 which is 3 times (3x) the actual cost claim. In other words the increase percentage calculated is only 37% increase from the last 10-11 years.
  2. Upon using 37% as a common denominator, the increase for replacement should be $68,500.00. I think that should be fair and $150,000 replacement cost is a day time robbery claim. With no other material in support the only sworn statements in support based on 300% increase which is unbelievable.
  3. The next issue is, is there any evidence in respect of the size of the building, how much timber was used and costs, iron roofing, nails and labour cost. In reality there is no report or evidence to verify the size of the house and which types of material used. The size in estimate measurement will provide hint to calculate the rest of the possible materials used. In the absence of such I will merely rely on minimal cost of damages which I will award $15,000.00.

Damages to tractor garage building.

  1. Again there is no evidence providing for the size of the building and whether the garage was a permanently building or not, or part permanent. In the absence of such I resort to awarding minimal amount of $2,000.00.

Damages to kitchen house building.

  1. Like others there is no evidence given to support the claim for damages to the kitchen house. The amount appear in the amended claim is $16,000.00 which was pleaded. In Mr. Mani’s sworn statement and Mr Misimake’s report both equally estimated that to rebuild a similar size of kitchen it would cost $48,000.00 which is three times (3x) the original cost pleaded. If I am to apply 25% increase as suggested by Mr. Iromea in his sworn statement then the increase value should be $16,000 x 25/100 which equal to $20,000.00, the amount of $48,000.00 does not make sense and not substantiated.
  2. Since there is no evidence of sizes of the building and actual material used, I must apply and award minimal cost to re-compensate. The amount should be $4,000.00.

Damages to Kingdom Hall (Church) building.

  1. The Church building cost of damages pleaded in the amended claim is $200,000.00. Unfortunately there is no evidence available to hint as to the size of the Church building. In my opinion this is important to estimate the cost of iron roofing, ridging irons, nails, timber, cement and iron post or columns. The unit amounts in the invoices disclosed by Mr. Mani in his sworn statement would assist.
  2. In the absence of any evidence, the cost pleaded in the amended claim is not substantiated inclusive of the cost of rebuilding which is $600,000.00 an increase of 300%. If I would apply 25% increase as suggested by Mr Iromea in his sworn statement the increase for rebuilding should be 25/100 x 200,000.00 is $50,000.00 and not $600,000.00.
  3. In any event no evidence available to provide hint so that I would make any calculations to estimate the cost. I would not rely on the amount of $600,000.00 as too excessive and not substantiated. In any event I rely on Mr. Mamiasi’s report that the church building was not destroyed, may be abandoned and left isolated. However an award of $5,000 is given for being deserted and subject to deteriorating.

Damages to store building.

  1. The amount pleaded in the amended claim for damages done to the store house building is $300,000.00. In accordance to Mr. Misimake’s report to rebuild the store house would cost $900,000.00 which is the same value as stated by Mr. Mani in his sworn statement. It was 300% increase or 3 times (3x) the value pleaded.
  2. If we apply 25% increase cost as suggested by Mr. Iromea in his sworn statement, the replacement cost would be 25/100 x 300,000 = $75,000.00. That obviously deny the estimated costs calculated by Mr. Mani and Mr. Misimake which in my view is beyond belief.
  3. Unfortunately, none of the sworn statement filed in support of this application provide evidence that will assist this court estimate the real cost. There is no evidence as to the size of the house and the materials used. Court of law is reluctant to accept presumptions. Because it was a two storey building the cost as pleaded is near to the original cost. No such is acceptable in this court.
  4. The only evidence available is a two storey building and nothing more which cost of $300,000.00 which was appreciated three times to rebuild. Having left in the dark I must therefore resume to awarding minimal cost of damages, which I award as $50,000.00.

Damages to boat building shed.

  1. The Cost of damages related to the boat building shed was included in other sworn statements but was never pleaded in the amended claim. Facts pleaded in the amended claim needs evidence to proof them. Evidence cannot be produced to support facts which are not pleaded in the amended claim. Simply the evidence in those sworn statement were produced to proof facts which do not exist. I must therefore dismiss the assessment of damages in this particular property for being none existence.

Damages to Coconuts.

  1. Damages pleaded in the amended claim for both gardens and coconuts is $30,000.00 inclusive. There are no facts pleaded separating both though. It could have been better and of assistance if damages for food gardens and coconuts were separated.
  2. In the sworn statement of Mr Iromea a number of coconut trees were burnt or chopped down from three blocks, they are 8 + 100 + 80 = 188. There is no forth block so I disregard 12 coconut chopped from the forth block. However, I consider 2 recently chopped trees.
  3. There is no conformity whether Mr. Mani in arriving at the number of 188 coconuts damaged, used some method. If it was a stamp count then that should be accepted. However, the risk is if there are coconuts still standing but under grave pressure from bushes, thorns etc then those must be regarded as still alive not yet damaged but of course abandoned.
  4. The value of the 199 coconuts that were damaged or left abandoned and died were 188 x 150.00 per tree equals $28,200.00. If 30,000.00 as pleaded in the amended claim for both damages to garden and coconuts, then it would appear, from the calculation, that damages for gardens could be $2,000.00.
  5. In that instance the claim and calculations figures as pleaded in the claim must be incorrect, or if not, done unfairly to gain extra monies for damages. I must not accept any motive to gain extra, that is defrauding the Defendants.
  6. Accordingly, I must resume to discretion hence awarded damages for coconuts at $16,000.00. There is no damages done to food gardens specifically pleaded, hence refused to assess any damages done to any root crops, edible trees etc.

Disturbance to Airport Project.

  1. The cost of disturbance to the progress of the Airport development project by abandoning it is $2,300,000.00 as pleaded in the amended claim. In Mr. Misimake’s Report attached to his sworn statement of 30th July 2000, the amount was accelerated to $5,274,900.00. However, there is no evidence at all that supports those figures. However, there was a report filed by Mr O’Connor that the cost of constructing the airport is $2,300,000.00.
  2. In my introductory paragraphs align to this item, I have conceived that this is a project which was not in the policy books of the Government of the day, yet was blessed by its agencies. It was an ideology emerged from the landowners (the Claimant and his family) to construct the airport on their land. See letter of 11th April 1999. The initial work was commenced by the family in 1990.
  3. The prospect in the project was by guess attractive, therefore gain support from the relevant government agencies. As a result a report was prepared by Mr. O’Connor in January 1999.
  4. It would seem the recommendation favored option (3) which held airstrip should be 1,000m x 80m and should incur cost of $2,300,00.00, which is the amount pleaded in the amended claim. Without any reason and good course Mr. Misimake in his report accelerated the amount to $5,274,000.00.
  5. From the O’Cornor report Section 2.2, work on the airport in particular clearing of trees, tree stumps and vegetation covered half of required airstrip. A similar land area was done on the other end except for the clearance of the stamps. Generally the initial tree cutting and clearing of the required length and width of the airport had been cleared.
  6. This work was initially started probably in 1990 according to Claimant’s letter dated 11th February 1999. Part of the feasibility studies was accounted for in paragraph 3 of that letter that should have been done by government services and to unveil any government plan in regards to Atoifi airport. I think both airports are separated by 3-4 minutes flight. To continue exist side by side may not financially viable but it was an element ought to be considered at an early stage.
  7. It is quite difficult to assess damages related to disturbance of the progress of work. But what I am able to glean is rely on Mr. O’Connor’s report of the actual work done. In the absence of evidence as to how much was done before the disturbance. This requires assessment in respect of necessities that enable work to progress, for instance machineries, oil and fuel and labour costs. These are the items I consider relevant to construction disturbance.
  8. Unfortunately there is no evidence to suggest any expenditure related to those. What the Claimant is asking for is an amount which enable to complete the airport which differs from how much work was done up to disturbance. In the absence of evidence I shall resume to a minimal cost of $100,000.00, which I therefore awarded to the Claimant for disturbance on progress of work on the airport.

Damages to tools and related properties:

  1. The amount Claim for damages in respect of tools and related properties is $993,239.20, as pleaded in the amended claim. The Misimake report assessed the damages of tools and machineries at $2,739,190.63. Mr. Mani’s calculation and assessment is his report arrived at a total cost $1,120,004.10. I have no difficulties in accepting the amount of $993,739.20 as pleaded as being the basis for guidance to assist in the assessment.
  2. In the amended claim there was no claim as to damages to machineries pleaded. I must therefore abandon the claim for damaged to machineries but confine to damages done to tools and related properties which were actually pleaded.
  3. I wonder if related properties associated to tools for the use and reparation of vehicles, tractor and trailer, outboard motor and boat, farm tools and spare parts came under this category. I do not think so on the simple understanding that Hilux, tractor and trailer, outboard motor are not tools but engines or machineries which were not pleaded. In fact there was no particularization of the tools claimed and related properties.
  4. On the same issue it can also include a generator, hydraulic rams, hydraulic steering box, dif loader with shaft, hydraulic jack and universal joint. Those are machineries which were not particularized and pleaded in the amended claim.
  5. Other items under this list on pages 86-89 of trial book, were tools which I agree. Again the problem is the costs. There is no evidence to verify. What seemed apparent as cost attached to each item is a mere blank guess? No one is bothered to establish at least an item was actually purchased with cost price from a particular hardware, however nothing is provided.
  6. Mr. Mani’s list attached to his sworn statement filed on 10th September 2019, consisted of 135 items valued at $22,167,165.33. However, the total cost of all the properties is $1,020,684.10 according to pages 86 – 89 of the Court Book. I guess that was the report compiled by RAMSI. In any event I will assess a figure appropriate which I think is best suited from circumstances as it unveils.
  7. Subsequently I will only confine to items which categorizes under tools and related properties, and no other. In the trial book page 86 the hardware tools which I noted to be hardware tools. In group categories as gardening tools, fishing tools at page 87 of the trial book, they point to 4 bicycles, 6 tyres size 700-15 and 4 tyres size 700-15 and rim size 700–15 which I think are not tools, same as 2 live pigs for $800.00 in all.
  8. On page 87 are building materials which I accept as they are and will be assessed.
  9. On page 88 are domestic items which should have been pleaded in the claim under residential houses. I assume they must have been covered under that category as pleaded and which I have assessed earlier.
  10. On page 88 as well is an intended list of tools and related properties. They are documents and equipment’s which are not tools. In fact there were documents and some are goods in the shop, fuel and oil. Some items can be slotted under outboard motor engine and damages under shop building. Concerning documentation they were not pleaded in the amended claim.
  11. Most items listed on pages 86-89 and categories under damages to tools and related properties, unfortunately not all of them are within the meaning of tools. Some are engines, vehicles, household items and merchandize goods from the store. I am only bound to assess damages related to tools and related properties as prescribe by simple English language. I have to abandoned many items because they do not fall under the category of tools.
  12. The category of tools under the heading vehicle, engines, machinery and spare parts are abandoned because they do not fall under the items which to my understanding are tools.
  13. On the second category of tools, are hardware tools which I consider the amount of $32,083.90.
  14. Concerning gardening tools, farms and fishing I only consider real tools not pigs, chickens, bicycle tires and rims. The amount I consider is $12,530.00.
  15. In regards to building materials which I think they are related to properties that precisely connected to tools, I consider the amount as $17,711.90.
  16. In respect to domestic items, documents and equipment at page 88 and 89 of trial book, I have decided to abandon them because they are completely not pleaded. And they have not included in the major items pleaded as part of the store building or residential buildings.
  17. After commentaries I have computed the total cost of damages to tools and related properties, which I accept as;
a) Hardware tools
$32,283.90
b) Garden /Farms Tools
$12, 530.00
C) Building materials related to tools
$17,530.00
Total
$52343.90
  1. There are 3 different figures as far as tools and related properties are concerned which I have pointed out earlier in the introductory. I need just to point out that Mr. Mani came to conclusion as total cost of damages under this category as $1,120,004.10. However he doubled that figure to arrive at $2,739,190.63 as total cost for rehabilitation. I doubt the prices could have hiked up 200% from 10 years ago. I think Mr. Mani was not realistic in his valuation. I accepted values computed by RAMSI, as a guide line in assessing the value of damages under this category, considering as well the amount pleaded in the amended claim. Also noted the tools as particularized in the reports are like a full hardware stored in the house and the village of the Claimant, something amazing.

Loss of earning received from business:

  1. Loss of earning as pleaded in the amended claim is as follows:
(a)
Trade Store
$1,271,409.70
(b)
Sawmilling
$12, 540,001.00
(c)
Copra
$418, 000.00
(d)
Piggery
$349, 030.00
(e)
Poultry
$175, 560.00
  1. Mr. Mani calculated loss of business and income for a period of 17 years and 4 months (209) months, from the date of destruction to the date of judgment 20/2/2018. He seems to base on the figures calculated on page 83 of Trial Book.
  2. The findings could have been calculated by one of the close relative of the Claimant because the pronoun words “our” and “we” were used. The calculation as to loss of business income is as follows – see Mani’s sworn statement page 2?
(a)
Store $6,083.30 x 209 months
= $1,171,409.70
(b)
Sawmilling $60,000.00 x 209 months
=$12,540,000.00
(c)
Piggery $1,670.00 x 209 months
=$349,030.00
(d)
Poultry $840.00 x 209 months
=$175,560.00
(e)
Copra $2,000.00 x 209 months
=$418,000.00

Total
=$14,753,999.70

Loss of business from the store.

  1. Those figures are the same as reported by Mr Misimake in his report attached to his sworn statement of 30th July 2020. I noted there is no dispute as to destruction but how much goods were in the shop at that time.
  2. To determine business loss in terms of trade store operation, I refer to certain merchandize goods which Mr. Mani listed as content of the shop at that time of destruction. On the last page of Mr. Mani’s list I noted goods that were lost as;
1.
Cash Box containing money
$1,000.00
2.
2 dozen razor blades
$124.00
3.
5 box large battery 1.5
$240.00
4.
1 Gross match
$67.00
5.
1 bale white sugar
$96.00
6.
1 bale white salt
$96.00
7.
1 Ctn Taiyo
$144.00
8.
45 gallon engine oil
$2,700.00
9.
10 gallon engine oil
$600.00
10.
44 gallon 2 stroke oil
$750.00
11.
12 gallon oil
$600.00

Total
$6,417.00
  1. In the amended claim it exhibited the monthly earning of the store at $6,083.30. Not really sure whether petrol and oil are part of the retail shop goods. Even if so, the value of stock as listed in Mani’s report cannot yield $6,083.30 per month. I acknowledge there could have been list of goods but were not disclosed. That would assist the Court determine the value of stock which could possibly yield a monthly intake as pleaded.
  2. With nothing more and no evidence in terms of documentation from tax paid etc, and the establishment of such business in terms of provincial business license, which is required as proof as in the case of Tion V Court Appointed Manager DBSI [2008] SHBC 9, would be difficult to assess loss of earning in the trade store business. The only option is to award a minimal amount. The sum of $1,000.00 per month, for 209 months the total should be $209,000.00 which I think is fair in a rural shop.

Sawmilling project loss of monthly earning.

  1. The amount particularized in the amended claim for loss of sawmilling project in a month earning was $60,000.00. There is no evidence at all as to the amount of timbers available and in the shed at that time of destruction. Should there be, will assist the Court to assess the loss of earning based on volume of timbers available at that time. In the absence of evidence I will resume to minimal loss of $5,000.00 monthly earning is a fair guess rather than escalating it far from the reality. I award $5,000.00 x 209 - $1,045,020.00.

Monthly loss of earning from piggery project.

  1. The monthly earning from piggery project was $1670.00 as particularized in the amended claim. Unfortunately there is no evidence as to the number of pigs in the pen at that time of destruction. This will provide a hint to the Court to assess that such number of pigs will yield earning up to $1670.00 per month. In the absence of such it is really difficult.
  2. Assessment can be done on average but basically will rely on number of pigs for a month or at least at one point in time. With lack of evidence to assist I will rely on minimum award which I exercise discretion to be $500.00 per month. $500.00 x 209 = $104,500.00.

Loss of earning in the poultry project.

  1. Loss of earning for poultry project was particularized in the amended claim as to $840.00 per month. Unfortunately there is again no evidence before the Court in indicate the number of chickens in the fence at the time of destruction. The number at least will give a hint as to the capacity of sale to maintain the amount per month. It boils down to market as well as earning. Who are the major clients of the Claimant and who can spend money in the rural setting?
  2. If the earning from the sale is at $840.00 per month, then the Claimant ought to maintain the same per month throughout the year. There should not be any interval and break at all in breeding chickens.
  3. In the absence of evidence to assist the Court to assess the loss of earning under this project, I therefore resume to minimal award which is $200.00 per month. $200.00 x 205 months = $51, 800.00.

Loss of earning in monthly sale of copra.

  1. Lost of earning in regards to copra monthly sales as particularized in the amended claim is $2,000.00. I think I would agree to this figure on the grounds that the Claimant and his family had sufficient coconut trees to produce copra with the earning as claim. Because of the destruction and abandoning plantations the expected earning was lost for 209 month. In assessing I think that is fair to recoup the damages.
$2,000.00 x 209 = $418,000.00.
  1. In all the total loss of earning as I would assess in the five categories of projects is;
(a)
Store
=$209,000.00
(b)
Sawmill
=$1,045,500.00
(c)
Piggery project
=$104,500.00
(d)
Poultry project
=$51, 800.00
(e)
Copra earnings
=$418,000.00

Total
=$1,817,800.00

Loss of tools in the construction of the Airport.

  1. The lost and disturbing of the Airport Project from progressing because of the destruction which may have led to abandoning the project was $2,300,000.00, as pleaded in the amended claim.
  2. The Misimake report evaluated that the replacement cost is $5,274,900.00. In fact more than doubled the amount pleaded.
  3. On page 82 of a report authored by un-named person but appear to be closely related to the Claimant who particularized that the project was ceased due to destruction of tools for construction of work. He evaluated the cost as $2,300.000.00 x 4 = $9,200,000.00.
  4. There is no evidence particularizing tools that were used for the project. But I could assume the following list would be possible tools.
1.
Tractor and trailer cost as it were
=$203,329.00
2.
Hydraulic for tractor and trailer
=$20,000.00
3.
6 Chain saw
=$70,000.00
4.
Grinding bend with motor engine
=$35,000.00
5.
7 Hydraulic Steering box
=$70,000.00
6.
Hydraulic Steering box
=$4,000.00
7.
4 wheel barrows
=$1,780.00
8.
4 Shovels
=$292.00
9.
Mini Micro crop
=$1,000.00
10.
Crow Bar
=$210.00
11.
Wooden handle axe
=$660.00
12.
10 bush knives
=$440.00
13.
Wooden trailer (for carrying grounds)
=$6,000.00

Total
=$412,711.00
  1. The list I presume could have gone higher had the authors of various reports calculated labour cost to include, fuel used in terms of petrol and diesel, and probably other more. The total cost as I would assess is $412,711.00. I have perused the list diligently and agree the cost prices evaluated is almost exact if not near to.
Total for damaged tools $52,343.90 + $412,711.00 = $465,054.90
  1. The loss of disturbance to this particular project which was $2,300,000.00 pleaded in the amended claim was never particularized which lacks any assistance at all. Even in the report filed by Mr. Misimake had not particularized the components loss during destruction, yet he arrived at $5,274,900.00. The other report at page 82 of trial Book valuing loss disturbance to airport project, due to destruction, accounted to $9,200,000.00. Those amounts in my view are too excessive. Any figure that is beyond $2,300,000.00 pleaded cannot be accepted and considered. The finger I thought appropriate is as I quote above and in paragraph 89 above where I awarded $100,000.00 as general disturbance to the project.

Physical injuries, trauma and harassment.

  1. According to a report on page 83 of the trial book psychological trauma suffered was evaluated as $11,000,000.00. Harassment was for $11,000,000.00 as well. For physical harassment of Mr F. Kiritee and D. Kiritee @ $200,000.00 each, $400,000 for both. Total claim and which were personally assessed is at $22,400,000.00.
  2. I do not know how the figures were arrived at; even the medical report attached to Mr F. Kiritee’s sworn statement did not show any amount. One significant importance is that damages and loss in this category was never pleaded in the amended claim filed on 21st November 2013. This Court is only relied on damages pleaded to assess loss in those categories of damages. Any loss not pleaded in the amended claim cannot be assessed they are outside of the core issues uttered in the amended claim. Therefore I grant no compensation for any damages/loss in the physical injuries, trauma and harassment to the Claimant and relatives.
  3. I noted there was a calculation by the Labour Division dated 7th November based on Doctor’s report and Workman’s Compensation Act. The calculation is that;
    1. Mr F. Kiritee = $7,388.00
    2. Mr D. Kiritee = $14,400.00
    3. Mr. Autee Foatalau = $11,059.20.
  4. Those figures calculated by the Labour Division were based on the formulae they have for injuries and should reflect almost the exact amount to compensate. These questions the report filed on page 83 and 84. The report reflected for the same injuries amounted to $32,917.20.
  5. When I look at the difference between $22,400,000.00 as assessed in the report from $32,817.20 calculation by Labour Division, it shows the Claimant and those who participated in compiling reports of this entire case are not being truthful, they fake things, they lie and they hiked up costs and prices to their advantages.
  6. Most of the values and costings in this case are not real or not as near as possible and they are extremely and extravagantly high. One matter ought to be considered is that because the Government is a party and the Court had found liability in joint does not mean anyone can take advantage that Government will pay. There must be evidence to assist me assess the amount to paid as compensation. No evidence to satisfy the court or assist to assess, undoubtedly the court will award a minimal amount. And this is what I do in most of the categories of assessment of damages and loss of business in this case.
  7. From that piece of evidence I would calculate the percentage of dishonesty by the Claimant and those who compiled the reports as;
  8. Therefore it is realistic that all the reports compiled in regards to damage, loss of revenue and disturbance to airport is 99.86% not exact or not true. I therefore award nothing because claim for damages under this category was not pleaded in the amended claim.

Damage to land:

127. The Misimake report evaluated damages to land as $4,247,500.00 including improvements. There is no guidance to substantiate neither being pleaded in the amended claim. The best to resume to is to abandoned any assessment to such damages and loss to land.

Conclusion.

128. In Conclusion I noted in the submissions by the Counsel for the Claimant who advances a grand total of $60,224,411.00 as being for all the damages done by the 1st Defendant through negligent act of the second Defendant by writing a letter without physical assessment, but more assuming the report received was true.
129. Despite that action the relief against the second Defendant is well defined for negligence which contributed to damages and loss of business.
130. Whilst assessment of a damages or loss is difficult in this case due to various categories, the overall tenor of reality rest its footing on the 99.86% dishonest and lie by the Claimant and those who compiled reports as cost of damages in support of the Claimant’s case.
131. The amount of $60,224,411.00 implicated that the Claimant and his family were the millionaires despite rural dwelling. Even in the ordinary value of all categories of items without improvement and replacement is in millions of dollars. I think it is too good to belief such. After all the costs and calculations were succumbed by illusiveness and dishonest.
132. In the finality, I hereby conclude in my assessment of the following amounts to compensate the Claimant and his family for damages and loss of properties and earnings because of destruction. Most of which I resume to minimal award.
  1. Damages to houses.

(a) David Kiritee’s house -$ 50,000.00

(b) John Sufasia’s house - $ 30,000.00

(c) Stephen Mann’s house - $ 75,000.00

(d) Fanidua Kiritee’s house -$ 75,000.00

Total - $230,000.00

Other buildings.

(2) Saw Mill Shed - $ 3,000.00

(3).Cafeteria House - $15,000.00

(4).Tractor Garage -$ 2,000.00

(5).Kitchen house - $ 4,000.00

(6).Kingdom Hall not damages but deserted - $ 5,000.00

(report by Mr Maniasi)

(7).Store building - $50,000.00

(8).Boat building shed (not pleaded)

Total - $79,000.00

Damages to agriculture project.

  1. (1) Piggery house (2) - $24,200.00

(3) Copra drier - $ 10,892.00

(4) Damages to coconuts - $16,000.00

(5) Disturbance to airport and

Damage to tools used - $ 512,711.00

Total - $570,803.00

(6) Damaged to tool and related properties

Total $230,000.00 + 79,000.00 + 570,803.00 +
$52,343.90 = $932,146.90

Loss of earning

  1. 1. Trade store - $ 209,000.00

2. Sawmilling - $1,045,000.00

3. Piggery Project - $ 108,500.00

4. Copra – 418,000.00

Total - $ 1,780,500.00

Grand Total is - $932,146.90

- $ 1,780,500.00

-$2,712,646.90

  1. It would appear the 1st Defendants had done the bulk of damages. The 2nd Defendant’s was found guilty for negligence, an issue quite difficult to assess. However I noted the circumstances in the country which was fragile and a total broke down of law and order. Of course I agree the 1st Defendants were militants which with all expectation the 2nd Defendant would have acknowledged. The problem is if the 2nd Defendant failed his part what would happen to the Officer? It’s another problem.
  2. What was done by the first Defendants could not possibly foresee by the second Defendants by human standard. Therefore I would conclude by apportioning negligence which is different from physical damage. The 2nd Defendant should pay one third (1/3) of the total amount awarded.

Orders:

  1. Award total cost for damages and loss of earning @ $2,712,646.90 to the Claimant.
  2. Defendant 2 to pay (1/3) of awarded damages as assessed @ $904,215. 63 to the Claimant.
  3. Defendant 1 to pay (2/3) i.e. $1,808,434.27 to the Claimant
  4. Costs of this application is to be paid by the Defendants (1) and (2) as in the percentage as awarded above.
  5. Defendants (1) and (2) to pay costs of Claimant’s Counsel (Rule Ch.24 Schedule 3 Part 3) according to the percentage sharing as above.
  6. Part 3; no award concerning physical injuries sustained, they were not being pleaded in the amended claim.

The Courts.

[1] [1858] 5 App Las 25, 39.

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