Warput v Santo Veneers Ltd [2004] VUCA 18; Civil Appeal Case 32 of 2003 (5 November 2004)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

Civil Appeal Case No. 32 of 2003

BETWEEN:

ROBERT WARPUT
Appellant

AND:

SANTO VENEERS LIMITED
Respondent

Coram: Chief Justice Lunabek
Hon. Justice Robertson
Hon. Justice von Doussa
Hon. Justice Fatiaki
Hon. Justice Treston
Hon. Justice Bulu

Counsels: Mr. H. Toa for the appellant
Mr. S. Stephens for the respondent

Hearing Date: 25 October 2004
Judgment Date: 05 November 2004

JUDGMENT

This is an appeal against the judgment of Saksak, J. delivered on 3 September 2003.

The appellant contended that he and his family were landowners of an area of land named Rovethu at Hog Harbour bush, East Santo. The respondent company was alleged to have cut timber on that land in June 2000 without the appellant's knowledge or consent and in fact was a trespasser. Later that month the defendant paid a total of VT386, 882 to Esau and Kalwas Saul who were the owners of adjoining land known as Lathi. The Appellant claimed unpaid royalties for timbers already cut, royalties for timber already collected and damages for environmental damage, transport costs and general damages together with interest and costs in relation to the cut timber and the trespass.

The respondent denied his cutting timber was on Rovethu and thus denied any trespass to the appellant.

The trial judge summarized the appellant's claim for damages as follows: -

"(1) For royalties paid by the defendants to Esau Saul and Kalwas Saul-	VT386, 882
(2) For unpaid royalties in respect of trees already cut-	VT886, 882
(3) For environmental damage-	VT2, 000, 000
(4) For transport costs-	VT 10, 000
(5) For general damages covering:- (a) Mental stress and anxiety - (b) Personal and Family efforts in find a solution -	VT691, 700 VT 50, 000
Total -	----------------- VT4,025,464" ==========

His Lordship summarized the evidence of the appellant and his brother who said they saw the timber had been cut on Rovethu without their consent. His Lordship noted that the defendant denied that it had cut any trees on Rovethu land and that trees had been cut on Lathi land with the permission of the said Esau Saul and Kalwas Saul. He said that the Court could accept the evidence of payment by the defendant to the owners of Lathi land.

His Lordship noted that the appellant based his claim as custom owner of land on the declaration of the area Council of Chiefs dated 12 April 1995. He held that there was obviously a dispute as to ownership of Rovethu land and on the authority of Valele Family v Tura [2002] VUCA 3; Civil Appeal Case No. 1 of 2002, the Court was not bound to recognize the declaration of the Council of Chiefs. His Lordship said the question of ownership of the Rovethu land was not a matter for his court.

His Lordship further said that the appellant should have, but had not joined the Forestry Department and David Wilson and Kaloris Saul and Esau Saul as parties to the proceeding . He considered they had a direct interest in the matter as they had negotiated and authorized the cutting of the timber, His Lordship held that the case against the defendant failed as the claimant had failed to show the court that the defendant had done logging on Rovethu land.

The grounds of the appeal are that: -

1. The trial judge erred in holding that there was a triable issue as to ownership of land at Rovethu and Lathi land and that ownership of the land concerned was in dispute and the matter was subjudae. (sic)
   
2. There was evidence of the respondent cutting logs, which the claimant claims to be on his land Rovethu and that monies were paid, by the respondents to a third party.
   
3. There was evidence that the defendant had known that the land for which the logs were cut were (sic) on the land claimed by the claimant but yet payments were made to a third party.
   

The substantive complaints raised by these grounds of appeal, particularly ground 3, are obscure. However, the appellants' written and oral submissions clarified that the main grounds of complaint about the reasoning of the trial judge are, first, that in so far as there was any dispute raised by the evidence about whose logs were cut, the dispute was not on the ownership of Rovethu, but on whether the logs were cut on Lathi land or Rovethu land. Secondly, the only direct evidence on that topic was the evidence of the appellant Robert Warput and his brother Vocor Warput. The trial judge gave no reasons why that evidence should not be accepted.

For the reasons which are not apparent, the trial judge failed to act on this evidence.

Mr. Robert Warput produced a sketch map of the land in question and there was no reason for trial judge to disregard that evidence particularly as the only evidence on behalf of the defence was clearly hearsay. Neither of the appellant's witnesses was shaken in cross-examination. The only evidence as to the place where the trees were cut down and as to the tenure of the land was from the appellant and his brother who said that they were in possession of the land and were using it. The question of trespass is not about ownership but is about possession. It was undisputed that the appellant was in possession

His Lordship also criticized the appellant for not joining other parties to the action. This criticism is misplaced. The appellant was entitled to choose which tortfeasor he wished to sue. It was for the defendant to join the other parties as third parties and to claim contribution or indemnity from them if payment had been made to the wrong person.

In our opinion the evidence before the trial judge clearly established that a trespass had been committed by the respondent, and that the appellant had suffered damage.

As to the quantum of the claim, there was clear evidence that monies had been paid by the respondent to Kalwas Saul and Esau Saul in the total sum of VT386, 882. The appellant did not give evidence about unpaid royalties for timber already cut rather, he sought damages for loss of water due to trees being cut down and causing a water hole to become dry. No reforestation had been done and the witnesses said that, since the trees had been milled, wild fowl, parrots and wild pigs which used to roam there were no longer in the area. The claimant gave evidence justifying an award for transport costs of VT10, 000 for picking up the environmental officer to carry out the inspection. Strictly this is an item of costs connected with the litigation, but it is convenient to include it as part of the special damages suffered as a result of the trespass.

Also produced for the appellant was a report from an environmental officer, Charles Vatu, who gave evidence that the damage done by the defendant to the site was as follows: -

• " 500m2 of land and forest cover
• Compact the soil by use of heavy machines destroying the rich part of the soil
• Destroyed the water source "Rovethu" which has the historical connection to the landowners concern
• The water source is the only water source found in the area, which has been meeting water needs of the people working in Rovethu area including the landowners.
  

The reasons indicated above will have a long term effect on the life of the people concern with regard to the need for water as one of the basic needs of life".

It is clear that there must be an award for the environmental damage. The report of Charles Vatu sets out the consequences of the milling and other consequences were referred to in the evidence of the claimant and his witness. We consider however that the claim of VT2, 000, 000 is overstated and that the proper award under that head is VT400, 000.

It is equally clear that there must be an award of general damage to recognize the seriousness of this unlawful intrusion on the appellants' land which we fix at VT100, 000.

In summary, the appeal must be allowed.

The judgment of the Supreme Court is set aside and judgment will be entered for the appellant against the respondent as follows: -

(1) Amount of royalties paid by the respondent to Esau Saul and Kalwas Saul -	VT386, 882
(2) Environmental damage -	VT400, 000
(3) Transport Costs -	VT 10, 000
(4) General Damages including stress and anxiety -	VT 100, 000
	----------------- VT896, 882 ==========

Interest from the date of filing of the claim to the date of this judgment is awarded at 5%.

The appellant is entitled to costs at the standard rate in both the Supreme Court and in this Court as agreed or determined by the Court.

Dated at Port Vila, this 05th day of November 2004

BY THE COURT

Chief Justice Lunabek
Hon. Justice von Doussa
Hon. Justice Fatiaki
Hon. Justice Robertson
Hon. Justice Treston
Hon. Justice Bulu