OF Nelson Properties Ltd v Feti [2010] WSSC 43 (29 April 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

MISC1184/09

BETWEEN:

O.F. NELSON PROPERTIES LIMITED
a company duly incorporated and having its registered office at Apia
and carrying on business at Palauli in Savaii.
Plaintiff

AND:

TOLUONO FETI, TOLUONO MAMERE, TOLUONO HAN, TOLUONO PENE,
TOLUONO NOME being true heirs of TOLUONO MATENA LEALIIFANO, and
SALU SIAAGA, LELEISIUAO OTINERU, SAVEA AU, LEMOA ESEKIA,
LATU ASO, and MA'I MEKI, ALL Matais and as representatives of Alii & Faipule of
Vailoa Palauli under Rule 36 of the Supreme Court (Civil Procedure) Rules 1981.
Defendants

Presiding Judge: Justice Slicer

Counsel: Ms. R Wendt for the Plaintiff
Mr. T Malifa for the Defendants

Hearing: 15 February, 30 March, 6 April and 15 April 2010
Written Submissions: 8 and 12 April 2010
Judgment: 29 April 2010

JUDGMENT OF SLICER J

HISTORY OF THE PROCEEDINGS

1. The history of these proceedings are stated in the reasons for judgment of the learned Chief Justice delivered on 28 April 2008 (O.F. Nelson Properties Limited v Feti & Others [2008] WSSC 19) and do not require restatement. The conclusion reached was that:
   

"...on the issue of ownership is that the ownership of the land in dispute belongs to the plaintiff as freehold land."

2. The Defendants appealed the decision to the Court of Appeal on the basis that the original grant or record of title was unlawful and by virtue of the Constitution of Samoa, ss.101-2 the land remained subject to customary title and as such came within the pulega fa'alenu'u and pulega fa'amatai of the village and entitled matai. The appeal was dismissed (Sia'aga & Others v O.F. Nelson Properties Ltd. [2008] WSCA 14).
   
3. The findings of the learned Chief Justice and his primary determination are conclusive and cannot be revisited by this Court in its dealing with matters deferred at first instance and the topic of Parcel 1 referred back to the Court for determination.
   
4. The Plaintiff had pleaded the Limitation Act 1975, ss.4, 9(2) in response to the Defendants' Counterclaim to which the Defendants replied, by circular argument, that since the land had customary status, it was not susceptible to any limitation period. The learned Chief Justice determined at para.86;
   

"As it is clear from what has been said in this judgment that the current status of the land in dispute is not customary land but freehold land, the Act would apply to it. Given the very lengthy lapse of time, the counterclaim by the defendants for ownership and possession of the land must be time-barred."

The Defendants had also relied on limitation in their Counterclaim seeking title through long possession.

5. During the course of the primary hearing the parties appeared to have refined the issues to the Constitutional questions and left the remaining matters in abeyance. That confinement caused the primary Judge some surprise as he stated in his reasons at 7, 8;
   

"However, at the hearing on 22 April 2008 on the written submissions by counsel, both counsel informed the Court that it was their common understanding that the hearing already held related only to the question of ownership of the disputed land and they had proceeded on that basis.

"I have to say that my understanding of what that hearing was about is not the same as that of both counsel. I did ask counsel for the plaintiff at the hearing of these proceedings on 20 October 2005 whether the real issue in these proceedings is ownership of the land. Counsel for the plaintiff confirmed that is so. That was not disputed by counsel for the defendant. The transcript of the evidence shows that was what happened. I did not say that the hearing was to relate only to the question of ownership of the land. No such thing can be found in the transcript of the proceedings."

6. His Honour proceeded to hear the matter on the central argument rather than cause injustice stating at 9-10;
   

"However, to avoid any possible injustice from the misunderstanding that has occurred, I have, for the purpose of this judgment, decided to proceed on the basis of counsel's common understanding. Perhaps that explains why the plaintiff did not adduce any evidence to prove certain parts of its claim which would have been dismissed on that basis if it was not for the common understanding of counsel.

"On the basis of the common understanding of counsel, their written submissions filed on 28 January 2008, and the answers they gave to questions from the Court during the hearing on those submissions on 22 April 2008, the issues for determination in this judgment would be the question of ownership of the disputed land and, the related question of its status."

7. There was some suggestion by the Defendants' counsel during the appellate hearing that the villagers may have used a portion of the land with the acquiescence of the company, a matter which might enliven the limitation point. That might explain why the learned primary Judge did not specifically refer to Parcel 1 in his comprehensive reasons since there might be a different path of limitation open on the evidence of the Defendants on their Counterclaim. The omission was noted by the Court of Appeal when it stated at paragraph 23;
   

"In the case of Parcel 1, we can find no relevant evidence in the record before us. Nor was it dealt with specifically in the judgment of the learned Chief Justice. That topic is referred back to the Supreme Court for determination."

8. The above digression is to explain the course taken by this Court on the resumption of the hearing and is relevant to the question of damages since the Respondents claimed that the uncertainty caused by the omission of Parcel 1 entitled them to re-enter the land since ownership had not been finally determined.
   
9. It may be that the failure to specifically refer to Parcel 1 was a simple oversight or omission. What is clear and certain, and ought to have been clear and certain to the Respondents and their advisers was that neither the primary or appellate Courts held other than that a valid non customary title had been held for over 100 years. No plea to trespass on the land could be maintained on the basis that its status was that of customary land.
   
10. The case was returned to this Court to determine any matters left open by the primary judgment or remitted by the Court of Appeal.
    
11. On 27 September 2004 eight of the present Defendants were injuncted from further trespass, obstruction or removal of property on or from the land. In May 2005 Toluono Penehuro, Ma'i Meki, Mata'afa Taule'ave, Latu Aso, Lemoa Esekia, Savea Au, and Salu Sia'aga Salu, all villagers of Vailoa Palauli, were convicted of Contempt of Court pursuant to the Lands and Titles Act 1981, ss.49, 75 for acts of trespass or obstruction on the impugned land.
    
12. In the primary judgment, the learned Chief Justice at 102 expressed the hope that the;
    

"Conclusion will assist the present dispute to be resolved between the parties."

It was a commendable but vain hope.

13. On 12 November 2009 the Plaintiff filed a Notice of Motion for Committal for Civil Contempt against the original Defendants adding four additional matai as Second Respondents. The Contempt application related to further acts of trespass, obstruction and removal of property occurring on September 15, 16, 24 and October 14, 19 2009. The decision of the Court of Appeal had been handed down on 19 September 2008. In their Notice of Motion to Strike out the Contempt application, the Defendants claimed that the proceedings were premature since the original action was not yet finalized that it was the company which had breached the status quo and in particular;
    

"Lot 6/Parcel 6, to repeat is part of the 1154a 3r .30p as held by the Court of Appeal in Salu Sa'aga & Others has not been determined, and is 'subject to limitation'. Therefore nothing should be done on it."

The bases for opposition were misconceived.

14. In dealing with the contempt application and preparation for the resumed hearing of the substantive matter, the Court indicated that it would receive further evidence and submission on any limitation argument not already determined by the primary Judge and would, if necessary revisit any question concerning Lot 1 (acquiescence, continued use and the like) remitted by the Court of Appeal. An adjournment was granted to enable this to be done.
    
15. On the continuance of the hearing this Court is:
    
    1. bound by findings already made by the primary judge both in fact and law;
       
    2. bound by the decision of the Court of Appeal;
       
    3. required to pay regard to the pleadings as they existed at the time of the hearing;
       
    4. entitled, subject to (1), to pay regard to the evidence admitted on the primary hearing;
       
    5. permitted to receive fresh evidence on unresolved matters;
       
    6. required to deal with the matter remitted by the Court of Appeal;
       
    7. upon resolution of liability to determine entitlement to damages and their quantum.
       
16. On 1 November 2004 Justice Vaai ordered by consent that the Defendants' surveyors be permitted onto the Plaintiff's land to ascertain the area of the Defendants' occupation. On 15 February 2010 the Court was told that the limitation question in relation to Parcels 9, 12 and 13 had yet to be determined. On 17 March the Court was told that a survey was to be undertaken and the report should be completed within a week. On 30 March the Court was told that the Defendants had declined to allow the surveyor to undertake the work in the absence of the lawyers. The parties were informed that the Court would resume the hearing on the basis of the evidence submitted by the parties and it was for the Defendants to present their case as they saw fit.
    
17. On the resumed hearing on 6 April, the Defendants submitted a joint affidavit but adduced no evidence in support of any limitation claim. Accordingly paragraph 13 of the Counterclaim dated 10 January 2005 alleging 'continuous possession of part of Parcel 9 on Plans 1104 L and 1105 L' is dismissed. The pleadings show no other claim by the Defendants of acquiescence or title by way of adverse possession. The pleadings do not show any claim specific to Parcel 1 referred to by the Court of Appeal and accordingly this Court is able to pronounce a final order in relation to the Counterclaim. Lautafi Purcell the plantation manager had seen evidence of squatters on the company land when he returned in 2005 although in 2008 he found one named individual attempting to plant taro on a small section of the western side of Block 9. He was aware of an agreement or feagaiga made in the early 1970's permitting passage over the land to reach other land on the North Eastern boundary but believed that if any dwellings had been built they would be on the adjacent village land. The Defendants in their Affidavit of 6 April 2010 abandoned their claim of limitation as pleaded in their Counterclaim at paragraph 17.
    
18. The Court of Appeal in its reasons for decision paragraphs 21, 22 upheld the Plaintiff's title to Parcels 9, 12 and 13, 'subject to the limitation defence'. That defence was effectively a plea of adverse possession through acquiesance or a basis for the upholding of the counterclaim. Whether it be either or both is immaterial and the plea must fail.
    
19. The Defendants' closing submissions contend that since the Plaintiff had sought the remedy for Contempt it was precluded from maintaining the additional remedy for trespass. The argument is misconceived and is rejected. In those submissions they raise an alternative basis for justification and necessity namely the protection of the Pulemelei Tia Seu. They further contend that the only trespass was that in collecting revenue from persons seeking to visit the site. The contentions will be dealt with in more detail in the consideration of exemplary damages. But they are rejected. The Defendants ordered the company to stop work and forcibly occupied the homestead and stockyard area. They repeated their interference in the land and the operations of the company long after the primary decision, denying their claim to title. They were interested in commercial gain and exploitation not cultural heritage. Despite findings of contempt against some of the Defendants they collectively continued, with threats and conduct the Plaintiff's use of the land. The arguments are rejected.
    
20. A further claim that since the question of title remained unclear even after the decision of the Court of Appeal is likewise rejected. The findings of the primary Judge, the decision of the Court of Appeal and the evidence adduced on the resumed hearing permit this Court to dismiss the Counterclaim of the Second Defendants Feti, Mamere, Han and Nome dated 29 April 2005 and the Counterclaim of the First Defendants Sia'aga, Otineru, Savea Au, Esekia, Aso, Tauleave, Meki and Pene dated 10 January 2005. Both Counterclaims are dismissed.
    

TRESPASS

21. The Plaintiff pleaded, in its Statement of Claim dated 24 September 2004 that the Defendants and/or their representatives entered onto the land and ordered its employees to vacate the land on 5 July 2004. The Defendants in their defence paragraph 3 dated 10 January 2005 admitted;
    

"...advising the Plaintiff's Manager to vacate the plantation pursuant to a decision of the Village Council but say that it was on the 9th August 2004..."

22. The Court accepts the evidence of Edward Annandale and Aiolupo Talafu that on 1 July 2004, Mata'afa Pesa, Savea A'e and Vaovai Lopa came onto the land and advised that pursuant to a decision of the village council the plantation was to cease all operations. It accepts the evidence of Talafu that on 7 July 2004 untitled men and matai from the village came onto the plantation, removed a rock wall and erected two fales. The Court accepts this as the commencing date of the trespass by the Defendants either by each in person or as a party deciding to occupy the land, remove the employees and interfere with the operation of the company. The Court accepts that approximately one week later the foreman and his family were evicted from the land leaving the homestead in good condition.
    
23. The senior matai at this time were Pene, Tauleave (now deceased), Otineru, Sia'aga, Savea Au, Esekia, Latu Aso (now deceased) and Ma'i Meki. They were either direct trespassers or parties to the acts of trespass.
    
24. Attempts made in August 2004 to resolve the impasse were unsuccessful. Following the grant of an interim injunction a meeting between the parties was arranged for 17 December 2004. By this time Lautafi Purcell had been appointed by the company as the Plantation Manager. He attended the meeting. After lauga, o'o and the customary exchange of gifts negotiations commenced, in the presence of senior police officers, with Toluono Pene as the pulenu'u, certain concessions were made but the central agreement was the handover of the plantation and the acceptance of Purcell as the new manager.
    
25. On 20 December 2004 Purcell returned to the village meeting house. Some 30 matai attended, including Savea Au, Pene, Sia'aga, Esekia and Meki. Two other named defendants Latu Aso and Tauleave who also attended are now deceased. After lauga, the kava ceremony, fa'asoa ava and the presentation of gifts, Pene told Purcell that the village had decided not to accept him as the new farm manager, preferring someone close to Tupua Tamasese Efi who was then a member of the Council of Deputies. Following that exchange on 21 December Tuatagaloa spoke with Papali'i Li'o Masipa'u, the then Deputy Police Commissioner who had attended the meeting on 17 December. Tuatagaloa told Masipa'u that the village intended to retake control of the plantation as and from the following Monday. Control of the land was not handed back by the Defendants until February 2005 although the precise date is unclear on the evidence.
    
26. The Defendants had no lawful justification in their occupation of the land. They had entered and retained control of it without leave or licence (Barker v R [1983] HCA 18; [1983] 153 CLR 338, Dehn v Attorney General [1988] NZHC 418; [1988] 2 NZLR 564). They had entered the land and interfered with its use and directly or indirectly permitted the removal or destruction of buildings and chattels, including livestock. They cannot escape responsibility for the loss and damage arising from that trespass. As Pain J stated in Westec v Tuionoula [1987] WSSC (19 January 1987);
    

"A village in Samoa is a real collective entity that makes decision, takes action and exercises discipline in a similar manner to a club or society. Instead of a committee or board it is the Alii and Faipule who exercise authority and control. They act and speak for the village and their decisions are accepted as biding upon those in the village."

27. In this case the Defendants caused to be publish by radio broadcast on 30 and 31 July 2004, a notice prohibiting le Afioga ia Tuiatua Tupua and family from working on the property and the use of the road to the tia seu by any person. The notice was authorized by the Pulenu'u of Vailoa Palauli.
    
28. The Court finds that the Defendants trespassed on the Plaintiff's land, without justification from 7 July 2004 to 31 January 2005.
    
29. As earlier recounted, in 2005 a number of Defendants were convicted for contempt of the Court order made in September 2004. They were rebuked and warned by the presiding Judge against any repetition. Despite this the Defendants and villagers acting under their control re-entered the property and/or interfered with the Plaintiff's operations on 15 September 2009. They ordered company employees to cease work, encouraged others to enter onto the land and removed sand stockpiles for sale and generally interfered with the company's operations. They remained trespassers until or shortly before this Court granted a further injunction on 15 February 2010. The trespass, repeated, is relevant to the question of exemplary or punitive damages and will be later considered. The Court finds that the Defendants further trespassed on the Plaintiff's land between 15 September 2009 and 15 February 2010.
    

CAUSATION AND DAMAGES

30. When Talafu was evicted from the property he observed the homestead to be in good repair and working order. He said that fences in Blocks 4, 5 and 6, erected in 2003 were in good condition. There were some 200 head of cattle kept in enclosures and free range pigs and chickens, 20 and 60 in number respectively. The pigs and chickens were Talafu's personal property. On his evidence the stockyard was intact and Blocks 5 and 6 were cleared and maintained. When he returned on 17 December 2004 he found:
    
    • - windows, plumbing light fixtures and shelving removed
      
    • - holes in the walls of the 7 bedrooms
      
    • - fencing around Blocks 4, 5 and 6 pulled down and the enclosed areas overgrown
      
    • - stockyard fencing removed
      
    • - no remaining cattle
      

When Annandale visited the property on 17 December he observed:

- the homestead to be stripped of lighting and plumbing fixtures

- cupboards smashed and walls damaged

- the property to be overgrown and many fences damaged

- the absence of cattle and plantation horses

31. The Defendants in their answering affidavit denied any personal involvement in the causing of any damage and that the claim was one designed to 'paint a bad picture of (the) village.' They further claimed that any deterioration in the land, fencing or buildings were ones of age and the course of nature and not of their making or responsibility. They claim that it was the manager who had removed bricks, timber and light fittings and other electrical and plumbing equipment and killed one of the cattle. The Court accepts the manager's evidence that he caused the power connections to be disconnected as a safety measure required by the unlawful removal of plugs and fittings. There are two ready answers to the Defendants' denial of causation. On taking possession of the land, its buildings, fixtures and chattels they assumed responsibility, equivalent to bailment, for their maintenance and integrity. Failure to protect the buildings from thieves or vandals was in breach of that obligation. Failure to ensure the preservation of chattels like cattle, horses and pigs from theft or escape remained the responsibility of the trespasser. Natural deterioration is common to all land, fencing and the cultivation through the elements, weeds, erosion and the like. The company would have used its labour force and income to properly maintain its assets. It was deprived of its capacity to do so. Loss of profit is a direct consequence of the deprivation of its asset and income source.
    
32. There is a further matter to be taken into consideration. The Defendants and their village collected entry fees from persons wishing to visit the tia seu and/or the waterfalls on the property in 2004-5. The village collected payments varying from $300 to $500 for each load of sand for sand taken from the property between September 2009 and February 2010. There is no evidence of the quantity taken. In December 2009 the Defendants through others planted a commercial crop of bananas on the land. The Defendants were prepared to receive the fruits of the land through unlawful possession but deny responsibility for its care and maintenance during that lengthy occupation.
    

The unlawful trespasses caused loss and damage to the Plaintiff.

GENERAL DAMAGES

33. Damages for trespass may be nominal, exemplary or compensatory. General damages come within the third category. Compensatory damages can be measured in two ways. The first is where there is actual damage to the land or chattels which permits assessment of the cost of re-instatement or one based on diminution of value. The second is where there has been wrongful use of the land, in which case the sum assessed is based on what should reasonably be payable for use. The distinction is that of the form of injury to the land. A plaintiff is required to elect between the two bases for assessment before judgment. In Roberts v Rodney District Council [2001] 2 NZRL 402, a case followed by Sapolu CJ in Mortenson v Pihl Roryburg Joint Venture [2004] WSSC 5, Barker J summarised the relevant principles in the following terms at 405 and 406;
    

"In broad terms, damages for trespass to land may be nominal, exemplary or compensatory: Mayfair Ltd v Pears [1986] NZCA 476; [1987] 1 NZLR 459 (CA) at 456. This case is concerned with compensatory damages....There are two possible measures of compensatory damages. This first is, where there has been actual damage to the plaintiff's land or the chattels thereon, the measure of damages is the cost of reinstatement: Mayfair Ltd v Pears at p465. In some circumstances, where reinstatement is not possible for example, the diminution in the value of the land may be awarded in lieu thereof. See Lockwood Buildings Ltd v Trust Bank Canterbury Ltd [1995] 1 NZLR 22 (CA).

"The second measure of damages usually applies where there has been some wrongful use made of the plaintiff's land. Where a trespasser has wrongfully made use of the plaintiff's land, the plaintiff is entitled to receive by way of damages such sum as should reasonably be paid for that use: Laws NZ, Tort para 218. That this measure of damages is available to a victim of trespass to land is well established by English authority. See Penarth Dock Engineering Co. Ltd v Pounds [1963] 1 Lloyd's Rep 359; Bracewell v Appleby [1975]; Swordheath Properties Ltd v Tabet [1979] 1 A11 ER 240; Ministry of Defence v Ashman [1993] 2 EGLR 102; Jaggard v Sawyer [1995] 2 A11 ER 189; Inveragie Investments Ltd v Hackkett [1995] 3 A11 ER 841 (PC)....

"The distinction between these two measures of damages is to be found in the different form of injury to the victim's land. The former measure applies where there is damage to the plaintiff's land. The latter applies where there is wrongful use made to the plaintiff's land...

"In my view, a plaintiff cannot recover under both measures of damages. Although the plaintiff may plead both measures in the alternative, he or she is put to an election before judgment. See the judgment of Hoffman LJ (as he then was) in Ministry of Defence v Ashman....

"I therefore hold that the plaintiff in a case of trespass to land must make an election of remedies, which election is binding upon her at the time of judgment. This rule corresponds with the rule in contract law, for example, requiring a plaintiff to choose between expectation damages and reliance damages."

34. In His Honour's view an award of the cost of re-instatement or diminution is akin to the remedy in tort placing the victim in the same position as before the tort. Where there has been wrongful use, the award is based on what the trespasser should pay for that use.
    
35. In this case the position is more complex since the claim is a combination of trespass to chattels, trespass to land and economic harm caused by the Tort of trespass to land. In addition, the Plaintiff seeks both aggravated damages which are compensatory and exemplary damages which are punitive. The Plaintiff has abandoned any claim for future loss.
    
36. The Court will deal with the assessments on the following bases:
    
    1. Trespass to Land.
       

The principles stated in Roberts (supra) will be applied and the measure determined by the cost of restoration. The assessment will include damage to fixtures to the land, fencing and the costs of restoration or clearing the land to its former state.

2. Trespass to Chattels.
   

These will be treated separately. Goods taken, destroyed or not returned will be assessed according to value at the time of their taking. (Hal. 4th Ed. Vol. 12, 1163).

3. Economic Loss.
   

Deprivation of the use of land and its produce entitles the Plaintiff to consequential lost of profits to be assessed in accordance with general principles (Harbult's Plasticene Ltd v Wayne Tank and Pump Co. Ltd [1970] 1 QB 447). (Hal. 4th Ed. Vol. 12, 1168).

4. Aggravated and Exemplary Damages will be separately considered. The principles governing those awards in a case of trespass are those stated in 1RC v Rossminster [1979] UKHL 5; [1980] AC 952.
   
37. The Plaintiff has abandoned its claim for the loss of future earnings and confined its claim to the revenue loss of fees payable by visitors to the scenic and cultural attractions on the land.
    

DAMAGE TO LAND AND FIXTURES

Plantation House

38. The Plaintiff's claim is compensatory and the measure claimed is for the reinstatement of the premises to its previous condition (Roberts v Rodney District Council [2001] 2 NZLR 402).
    
39. The homestead was burnt down in early 2005 after the return of the land. Despite suspicion no-one was charged with its arson. The Plaintiff is entitled to the replacement or repair of fixtures as at the time of return. Annandale estimated the cost of repairs as:
    
    • Replacement of louvers - $8,000.00
      
    • Replacement of plumbing fixtures - $10,000.00
      
    • Replacement of lighting fixtures - $10,000.00
      
    • Repair or replacement of shelves - $5,000.00
      
    • Repair to walls - $20,000.00
      

Adopting a conservative approach to an estimate based on memory the assessment of $45,000.00 will be allowed.

Repair to Fencing and Land Clearing

40. Annandale who bases his estimates on his experience in the construction of the Sinalei Reef Resort in 1995-6 and its restoration after September 2009 and his long experience associated with the work of the plantation provides his opinion that the total cost of clearing overgrown bush and repairing the fencing to be $135,00.00. The Defendants claim that they have insufficient information or costing details to test the claim. I am not persuaded as to the precise cost of clearing estimated at $75,000.00. The length of unlawful occupation was little more than 6 months. Allowing for rapid growth of vines and weeds the estimate is nevertheless difficult. I can imagine that lengthy neglect would require considerable work and resources to clear. Here the witness bases his estimate as at December 2004 and his observation on one visit. Talafu gave evidence that when he left Blocks 5 and 6 were cleared and maintained and that Block 4 contained the house and stockyards for which compensation is awarded. Blocks 5 and 6 comprise a relatively small part of the total land area. I accept the integrity of the witness and note that there was no cross-examination on this estimate but the Court must be satisfied on the balance of probabilities of the accuracy of the opinion or estimate. Talafu in cross-examination thought that the cost of clearing 3 acres would be in the vicinity of $20,000.00. The exhibits do not show the areas or dimensions of the respective lots but a rough comparison of Lot 5 with the known area of Lot 6 (35.036 hectares, approx. 85 acres) suggests a combined acreage of slightly in excess of 100 acres. However the proportion of land which was arable would be relatively small and the two estimates may be reconcilable. Allowing for the cost of use of machinery and intensive labour required a figure of $70,000.00 will be allowed. Again adopting a conservative approach the sum of $70,000.00 will be awarded for the cost of clearing and returning the land to pasture as at January 2005.
    
41. Fencing is more readily assessed and can be calculated by length and the standard of fencing required. The estimate of $60,000.00 is the estimate by Annandale. In cross-examination Talafu believed the cost of fence replacement to be in the vicinity of $20,000.00 but not for the whole of the land. There is a marked difference between the two calculations. A calculation between the two estimates will be made and the sum of $40,000.00 awarded.
    

CHATTELS

Cattle

42. Talafu said that there were approximately 200 head of cattle kept within the fencing at the time he left the premises in July 2004. In addition he kept about 20 pigs and 40 chickens, none of which were present when he returned. Annandale said that the company owned 20 horses kept on the property. Purcell said that approximately 100 head of cattle were eventually recovered. A range of values was suggested between $1,100.00 and $1,200.00 per head in 1995. The original Statement of Claim dated September 2004 provides a figure of $800.00 per beast. That estimate was closer to the time than Annandale's current memory of a price 5 years previous. The Statement of Claim also averred the slaughter of two beasts per week over some 12 weeks but there was no evidence on that point on the hearing. The Court accepts that the Defendants are liable for the loss of chattels and finds that at least 100 cattle were missing. The Court awards the sum of $80,000.00 for that loss and restitution.
    
43. No evidence was provided for the value of the loss of the horses. There were none remaining when the property was recovered. No separate claim was made in the closing submissions of the Plaintiff and the Defendants ought to have the benefit of that omission. A nominal award of $2,000.00 will be made for the loss. The cost of rounding up the remaining cattle is estimated $50,000.00, a sum not challenged in cross-examination. That sum will be awarded.
    

Concrete Blocks

44. Talafu gave evidence that in July 2004 there were 50 concrete blocks located near the homestead and when he returned he found that all had been destroyed. The cost of the blocks is said to amount to $4,450.00, an amount not challenged by the Defendants. But in the original Statement of Claim their value is stated as $3.00 each. An award will be made in accordance with the pleading in the amount of $150.00.
    

Economic Loss

45. The Plaintiff did not pursue its claim for its lost opportunity in receiving a return on archeological study of the site or the possibility of receiving an economic return on payments for the establishment of a foundation to provide proper and controlled research and interpretation. The Plaintiff did not pursue a claim for loss of profits or future profits. But it was able to establish loss of income being the money diverted to the Defendants and the village as fees paid by visitors to the waterfalls and the tia seu. The estimate of fees at approximately $200.00 per week is accepted. The period of occupation was at least 29 weeks and a sum calculated at $5,800.00 allowed.
    

Aggravated and Exemplary Damages

46. Aggravated and Exemplary damages may be awarded in cases of trespass (Moore v Shelley [1883] 8 App. Cas. 285, Livingstone v Rawyards Coal Co. [1880] UKHL 3; [1880] 5 App. Cas. 25, Bulli Coal Mining Co. v Osborne [1899] AC, Cassell & Co. v Broome supra).
    
47. A Plaintiff is entitled to both forms of damages. In actions for tort the Court may take into account the Defendants' motives, conduct and manner of the trespass. The Defendants behaved in a high-minded, insulting and aggressive manner (Rookes v Barnard [1964] UKHL 1; [1964] AC 1129). Their conduct up to the commencement of the action, including the contents of the joint affidavit and the answers given in cross-examination is relevant to the assessment (Cassell v Broome supra). However the damages are usually awarded for unnecessary and further injury to the pride and dignity or reputation of the Plaintiff. The Plaintiff as a corporation has no emotion or feelings and any award is difficult to assess. Here, it is possible to assess punitive damages which will take into account the conduct of the Defendants and to punish them for the harm caused to the company. Given that the remedy for aggravated damage is designed to compensate the Plaintiff for personal harm, no assessment will be made for the Plaintiff. The question of a corporation's entitlement to aggravated damages was considered by the New Zealand Court of Appeal in Midland Metals Overseas Pty Ltd. V The Christchurch Press Co Ltd. [2003] 2 NZLR 298, a Court composed of 5 members. Although the Court was concerned with a case of defamation and injury to reputation, it dealt with the question of aggravated damages and a corporation. The majority concluded that the claim was an unnecessary complication since a corporation could recover damages for 'injury to the corporate pocket' which might include damage for goodwill but not injury to corporate feelings. The Plaintiff relied on, as authority, the decision of the Supreme Court of Papua New Guinea in P.N.G. Aviation Services Pty Ltd. v State of Papua New Guinea [2000] PGSG 18 that aggravated damages are a corporate remedy. However their Honours concentrated on the role of damages for injury to trading reputation and loss of goodwill and here there is no evidence that the reputation of the company has suffered or its goodwill value lessened (Gibbons v Westminster Bank Ltd [1939] 2 KB 882, Mount Cook Group Ltd V Johnstone Motors Ltd [1990] NZHC 137; [1990] 2 NZLR 488 at 497).
    
48. The English Courts have confined the remedy of exemplary damages to three categories namely;
    
    1. oppressive or unconstitutional conduct by government;
       
    2. where the defendant's conduct was designed or calculated to make a profit;
       
    3. where it is expressly authorized by statute.
       

(Rookes v Barnard [1964] UKHL 1; [1964] AC 1129, Cassell & Co. Ltd v Broome [1972] UKHL 3; [1972] AC 1027).

49. Previous to Rookes the English Courts had blurred the distinction between aggravated and exemplary damages. The House of Lords required a strict distinction and a jury direction to the effect that if, and only if, the sum awarded by way of compensation was inadequate to punish the defendant, they might mark their disapproval of the conduct by awarding a larger sum. In his speech Lord Devlin in dealing with the distinction said at 1128;
    

"But the fact that the two sorts of damage differ essentially does not necessarily mean that there should be two awards".

50. In Broome (supra) Lord Hailsham addressed the question of one award. He believed that in a case of exemplary damages involving more than one defendant, only one award could be made which represented the lower sum for which any of the defendants could be held liable.
    
51. The confinement of the remedy by the House of Lords as stated above has not been followed by the Australian and New Zealand appellate Courts (Uren v John Fairfax & Sons Pty [1966] HCA 40; [1966] 40 ALJR 124, Australian Consolidated Press v Uren [1966] 1AC 590, Truth (NZ) Ltd v Bowles [1966] NZLR 303, Corbett v Social Security Commissioner [1962] NZLR 878, Taylor v Beere [1982] NZCA 15; [1982] 1 NZLR 81). The difference is of little import in the circumstances of this case, since the Court finds that the Defendants had a commercial interest in the trespass of the land. One of the first undertakings was the building of a toll booth and the collection of fees from persons who wished to visit the waterfalls or the tia seu. The plantation of crops on the land, their conduct in 2009 in selling sand from the property and threatening the contractors were acts for commercial gain. Their trespass comes within the category identified by Lord Devlin. If that be wrong, I would prefer to follow the Australian and New Zealand statements of the applicable law.
    
52. The Defendants have followed an aggressive policy of intimidation and threats of force. They have claimed land by direct action. They did not initiate proceedings in either the Supreme Court or the Lands and Titles Court. They had fixed in their minds a self-given right to the land and nothing would alter that belief. Whether they acted in accordance with proper legal advice is not clear but their claimed authorization by themselves as matai and/or the village power was unlawful. The Constitution Section 14 provides for the rights regarding property. Sections 101 and 102 recognizes freehold land and protects existing customary land. It was open to the Defendants to use the Courts of their nation to challenge ownership. They chose not to do so. It was open for them to seek an accommodation to the benefit of all parties. They chose not to do so. Their commands and threats were aggressive, intimidating and insulting. Some of their acts were directed at individuals not the corporation. Talafu, a responsible man had a large family. He was given orders to quit his home and leave by 4.00pm. He left following police advice that it would be in the best interests of his safety and that of his family. He was assured that the village would look after his belongings and property. The pigs and chickens were his own personal property. Even if the Defendants believed they had grievance against the company, their taking of his personal property without compensation or apology is a stain on the title of matai which they each possessed. That Talafu had to plead to take one pig for his family and needed the permission of Pene to do so was a betrayal of the dignity of a Samoan man.
    
53. The Defendants either took part in the taking of property or at least were indifferent to the crimes of others. The Court does not accept their claims that they had no knowledge of the taking or destruction of property. They did nothing to enforce their own decision banning harm.
    
54. A number of Defendants were convicted of contempt of orders of the Supreme Court. They had no respect for the Judges appointed in accordance with the Constitution of their nation. They clothed themselves with authority greater than their country. They did not listen to reason and even the intervention by the Prime Minister failed to alter their minds.
    
55. In December 2004, they betrayed their own agreement and the word of Pene. That betrayal was of their own honour and the decision of this Court made in the previous September. Their conduct was made worse. They took money and gifts for themselves and their village and failed to return them when the agreement was broken. Their reasons for not returning the money were ones of self interest not principle. The argument that since the gifts were personal they need not be repaid was shallow.
    
56. In 2009, the Defendants again unlawfully entered the land and used it for commercial gain. They threatened contractors of the Plaintiff with damage to plant and harm to employees. Their claim that the issue of title remained unclear and unresolved is rejected. They took no steps to bring the case back to Court for explanation or guidance, they again disobeyed an order of this Court. They did nothing until the Plaintiff commenced further contempt proceedings and fresh injunctions. They did nothing to proceed with their counterclaims and eventually abandoned the limitation pleading. If the evidence of the Defendants provided in the joint affidavit and that of Autagavaia Uiese who was cross-examined, is common to all Defendants then it is clear that they still do not accept the validity of the Plaintiff's title or the rulings given by this Court.
    
57. The Courts have said that aggravated or punitive damages are remedies in cases where an aggravated Plaintiff is not sufficiently compensated in a general award of damages, and that principle will be followed here. Exemplary damages ought reflect the motives of the Defendants, their conduct and manner of committing the tort, repetition and acts committed in the face of orders of the Court. Whilst exemplary damages is a weapon that should be used with restraint, here a significant sum ought to be awarded.
    
58. While the means of the parties are relevant to any assessment of exemplary damages (Rookes v Banard (supra)) here they are representatives of the village and the holder of titles. There is no evidence of means other than that they have profited by their unlawful conduct and been able to maintain protracted and expensive litigation. In their Counterclaim they sought $89 million Tala. The Court accepts that collectively the Defendants, and through them the village, have significant means.
    
59. The award should be significant. In September 2004, the Plaintiff sought damages in the sum of $50,000.00. At that stage there had been a trespass of only 3 months, and the extent of the damages caused unknown. Much has occurred since that time to warrant a different assessment. In P.N.G. Aviation (supra) the Appeal Court set aside an award of $50,000.00 for damage to reputation replacing it with an award in excess of K$1.7 million. However a portion of that related to proven loss of trade reputation and loss of goodwill. In Broome v Cassell (supra) the House of Lords did not interfere with a significant award made by a jury which significantly increased the proven damage.
    
60. Experience suggests that juries in civil cases often determine damages by reference to their everyday lives and knowledge. In that way damages can be brought into line with community expectations. Those references include knowledge of the value of land, the cost of purchasing a motor vehicle and the like. As stated, in Cassell (supra) the memory and pride in sailors who had defended their country could be seen as reflected in a large sum for the award of punitive damages. Applying that test in Samoa in assessment of punitive damages, the Court can take note of the cost of a new motor vehicle, the price of land, specialist treatment and the like. In that light the amount and effect of punishment can be considered. Given the history of this matter, the use of violence, disregard for orders of the Court and the economic gains hoped for the Defendants, I would regard the sum of $150,000.00 as exemplary damages as not inappropriate.
    

Exemplary damages are assessed in the amount of $150,000.00.

JOINT AND SEVERAL LIABILITY

61. The Defendants are liable for the jointly and severally damages and the Plaintiff is entitled to the award against each Defendant (London Association for the Protection of Trade v Greenlands Ltd. [1916] 2 AC 15, Cassell & Co. Ltd v Broome [1972] UKHL 3; [1972] AC 1027). The Court has no power to apportion damages as against the Plaintiff even though their culpability might vary (Chapman v Lord Ellesmere [1932] 2 KB 431). They are joint or severally liable.
    
62. In this case a number of the Defendants, named in the original Statement of Claim, are deceased. Enforcement through an estate or otherwise is not a matter for this judgment.
    

INJUNCTION

Permanent Injunction

63. The Plaintiff is entitled to a permanent injunction in the term of the orders made on 27 September 2004 and 15 February 2010.
    
64. The Court has been advised that two of the original Defendants have died during the course of these proceedings and it would be inappropriate to name them in the injunctive order although the question of recovery of damages remains a separate issue.
    
65. The Order of the Court is that there be a permanent injunction with respect to the whole of the land in the term stated in the orders dated 27 September 2004 and 15 February 2010 against all Defendants named in this action except Latu Aso and Toluono Mamere.
    

COSTS

66. The primary Judge reserved the question of costs on 28 April 2008. In dismissing the appeal on 19 September 2008 the Court of Appeal remitted the question to this Court stating;
    

"Given the constitutional dimension of this litigation we reserve to the Chief Justice the issue of costs in this court as well as the Supreme Court following its conclusion".

The Chief Justice has allocated the remaining portion of this hearing to me for determination.

67. There ought to be no reason to depart from the ordinary principle that costs should follow the event. The action was between a corporation and citizens of Samoa acting in their personal capacities as matai and officers of their village. The Plaintiff has submitted, in its closing material that costs should be awarded to it. The Court will make no order until counsel have been given the opportunity to speak to the Order.
    

CONCLUSION

68. Damages are assessed in the sums:
    

Replacement or repair of fixtures -	$45,000.00
Cost of clearing and returning the land to pasture as at January 2005 -	$70,000.00
Replacement of fence -	$40,000.00
Loss of cattle -	$80,000.00
Loss of horses -	$2,000.00
Loss of rounding up of the cattle -	$50,000.00
Loss of 50 concrete blocks -	$150.00
Economic loss -	$5,800.00
Exemplary damages -	$150,000.00

ORDERS

1. That the Plaintiff recover damages in the sum of $442,950.00 against the Defendants;
   
2. There be a permanent injunction with respect to the whole of the Plaintiff's land against all of the Defendants named in the action except Latu Aso and Toluono Mamere.
   
3. The term of the Orders made on 15 February 2010 are made permanent and in particular that the Defendants:
   

(i) Cease from trespassing, entering, or occupying the Applicant's land;

(ii) Cease from interfering with or obstructing the Applicant in the use of the whole of the land as above, or with the Applicant's business operations concerning such lands.

JUSTICE SLICER