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Zobule v Attorney General [2011] SBHC 102; HCSI-CC 297 (30 September 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 297 of 2008

BETWEEN

ALPHEAUS ZOBULE and OTHERS
First Claimants

And

DAVID GARUNU and OTHERS
Second Claimants

And

LIVA REJI
Third Claimants

And

JOHN PAVUKERA and ANOTHER
Fourth Claimants

And

ATTORNEY GENERAL
(Representing Commissioner of Forests)
First Defendant

And

EZEKIEL DAVEKA and OTHERS
Second Defendants

And

NASON BEIKERA
Third Defendant

And

GLENGROW (SI) Co Ltd and
GLENGROW SAWMILLING INDUSTRIES Ltd
Fourth Defendants

Mr Ashley for the Claimants
Mr Tegavota for Second, Third and Fourth Defendants
The First Defendants excused attendance

Date of Hearing: 22nd July 2011
Date of Judgment: 30th September 2011

Decision

1. The Claimants have a judgment for damages to be assessed. The hearing today related to assessment of the value of the trees felled and exported from the lands in question. The Claimants contend all the timber felled and logs exported were from the lands in dispute, the land the subject of the judgment. The Second, Third and Fourth Defendants say that is not the case. It is for the Claimants to establish, on the balance of probabilities, what timber was taken from the land. The evidence relied on by both sides was contradictory and most confusing.

2. The Defendants say the logging was completed on those blocks numbered 1, 2, 5 and 6 on the timber harvesting plan annexed as exhibit "A" to the sworn statement of Nason Beikera filed on 17th June 2011. The deponent goes on to say that partial logging occurred on blocks 3 and 7. This is not disputed by the Claimants. If blocks 1, 2, 3, 5, 6 and 7 are on Vitu Land, Gadora Land or Boara/Lajei land then the Claimants succeed in their argument. The difficulty in this case is the Claimants have produced very little cogent evidence about the boundaries of the land they say the logs came from.

3. The only independent evidence comes from the Chiefs but even that is very scant. They say [1], the boundary of Vitu land is from Pie Vuvughu (Kara River) to Bukubiru. They mention no other boundaries. The two points mentioned are both on the eastern coastline of Ranonga Island. The Chiefs do not mention where they found the western boundary of Vitu land to be. The Claimants just say it is somewhere "in the middle" of the island. No boundaries at all are mentioned for Gadora Land or Boara/Lajei Land. The latter area is relatively easy to deal with, the Defendants say they have never had a dispute about the boundary of the Baora/Lajei Land and therefore no logging took place on it. It is land on the western coast of Ranonga Island. I find as fact no logging took place on Baora/Lajei Land.

4. Returning to Vitu Land, the Claimants have drawn the western boundary as a straight line running north south. Having dealt with numerous cases involving customary land the one thing that can be said to be consistent in all those cases is the accepted fact, customary land boundaries do not follow straight lines. The boundaries are invariably aligned to rivers, hills, ridge lines or some other natural feature. The Claimants have not established exactly where the boundaries are with any degree of certainty. The Defendants say the area known as Vitu (and indeed that known as Gadora) are small plantation areas on the coast and do not extend inland to any great degree. Whilst this is disputed by the Claimants they have not produced any independent evidence, or any real evidence (apart from the straight lines drawn on the maps) to establish the inland or western boundaries of either Vitu or Gadora Land. I mention once again, the Claimants have to prove their claim on the balance of probabilities. They have come nowhere near satisfying that burden of proof.

5. What can be said is that, on the balance of probabilities, some logging took place on Vitu and Gadora. All the court can do is make an arbitrary but reasonable assumption as to the percentage of timber which came from the Claimants' land from that which was felled and exported overall.

6. On the evidence before the court and looking at the maps provided, the best that can be said is that approximately 40 to 50 per cent of the logs came from the Claimants' land. The areas covered by blocks 1 and 5 on the harvesting plan referred to earlier are, on the best interpretation of the Claimants evidence, probably within the Claimants' land. Blocks 2, 3, 6 and 7 are probably, on the best interpretation of Claimant's evidence, partly within their land. There is no evidence of what amount of timber was felled from which block. It would have been a simple matter for the Claimants to have obtained evidence on that question.

7. There is evidence that over the period 2008 to 2010 inclusive, timber to the value of USD 1,348,172.26 was exported [2]. As there is no evidence of the volume of timber exported the court will have to resort to the monetary value in order to assess damages. In any event an assessment of damages would necessarily reflect the export value of the trees as exported as timber. Of course, the Claimants are not entitled to the whole of the value of the timber as realised on export. The proper measure of damages is the net value. Thus, if the Claimants had carried out the logging and exported the timber they would have had to pay Government duty and it should be deducted. That would reduce the sum overall sum available to USD 1,011,129.20. Bearing in mind the comments at paragraph 6 above, it is probable that the Claimants were entitled to approximately 40% of that figure, or USD 404,451.68. However, they are not entitled to a full 40%. They are entitled to 15% of the 40% which is the "usual" royalty figure landowners negotiate. That would amount to a sum of USD 60,667.75. That leaves a sum of USD 343,783.93.

8. The balance of the 40% (343,783.93) would consist of expenses and "profit" usually kept by those actually carrying out the logging operation. If the Claimants had been involved in the logging they would have incurred expenses and those expenses must be taken into account. In most logging agreements the logger usually reserves 60% of the proceeds to itself. The sum must include a profit element. It is a reasonable assumption to make that the profit margin for a logging company would be somewhere between 10 and 20 per cent. There is no evidence to support that figure either way but in my view it is a reasonable assumption to make. As landowners the Claimants would probably have fewer expenses than a logging company. For example, labour costs would probably be less as they would be working for themselves. That would have the effect of increasing the profit margin. It is a reasonable assumption to make that the profit margin for landowners could increase to 25% or more. It would be reasonable to adopt that figure as the residual value of the timber to the landowner. It would be 25% of the 343,783.93 or USD 85,945.98.

9. The total of damages assessed for conversion or trespass in respect of the trees amounts to the sum set out in paragraph 7 (60,667.75) plus the figure set out in paragraph 8 above (85,945.98) making a figure of USD 146,613.73.

10. I propose to leave the amount assessed as a US dollar figure and the correct or final sum can be paid at the correct exchange rate at the date of payment. I would also order interest to be paid on such sum from the date of judgment until it is satisfied at the judgment debt rate.

Chetwynd J

^[1] See Exhibit AZ16 to the sworn statement of Alpheaus Zobule filed 20^th April 2009
^[2] See exhibit RM2 of the sworn statement by Rosemary Maefiti filed 16^th February 2011