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Dangifunu v Aisisiki Land Trust Co. Ltd [2013] SBHC 125; HCSI-CC 422 of 2005 (17 September 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

CIVIL CASE NO. 422 OF 2005.

BETWEEN:

NOAH DANGIFUNU AND CHRIS GWAIMAUA
Claimants
(Representing themselves and the owners of Fiifauabu-kafesau customary land).

AND:

AISISIKI LAND TRUST CO. LTD
First Defendant

AND:

JOY ITAIA (t/a Ocean Trading Co.)
Second Defendant

Date of Hearing: 9^th September, 2013.
Date of Decision: 17^th September, 2013.

Mr D.Lidimani for the Claimants.
Mr J. Zama for Defendants (1) and (2).

DECISION ON ASSESSMENT OF DAMAGES.

Faukona J: This cause of action is basically for assessment of damages. Following Summary judgment made by this Court on 22^nd of February, 2012, of which no appeal was filed; this court is obliged to assess the damages for trespass to land, damages and conversion of trees.

2. From the Orders it is apparent that assessment of damages for conversion of trees had already been done. What is now left is the assessment of damages for trespass, as well as 5% interest per annum on such damages.

3. Damages for trespass to land comprises of road construction, skidding and conversion of trees (been done). Mr Lidimani relies upon inspection reports of 15^th January 2004 and 21^st July, 2005 by the Forestry Officer at Auki. There was no inspection or assessment undertaken to determine the extent of destruction or harm to land and its environment.

4. Mr Zama’s response is totally different. Gather from his submissions his clients seem not to be interested in any assessment of damages. They feel it is premature to do so at this stage. Instead, they filed an application to stay the proceedings pending an outcome of appropriate local Court determining the ownership of Faubako Customary land. A sworn statement by Mr Jonathan Malai filed on 5^th September 2013, supported the application. The sworn statement raises a lot of issues, including and not limited to timber rights processes, two houses of Chiefs hearing and determination, and a referral case to the local Court against the Aimela house of Chiefs determination (second hearing) and the claim of multi-parties interested in the logs harvested.

5. In my view those issues could have been better raised had the defendants respond by attending the application for summary judgment. If I am to demonstrate justice to be seen done, a determinant factor is that the case had started eight years ago and until now nothing materialises. If there should be an order for stay of proceedings awaiting Local Court determination, how long will it take before the Local Court will hear the referral case? By the rate the local Courts in this country are functioning, depends very much on availability of funds. Based on my experience it will take years before the Local Court will hear the case.

6. Another issue raise by Mr Zama is that there was an application to set aside default judgment dated 22^nd February, 2012. An implication is a copy of the application attached as Exh LPW2 to Mr Ping Wong’s sworn statement filed on 10^th September, 2013. That copy was not filed at all. It was the same copy, which Mr Zama had shown to Court. In support, there was another copy of the same application attached as Exh PW1 to Mr Watts’s sworn statement filed on 10^th September 2013. That copy had a stamp indicated it was filed on 22^nd June 2012, four months after the judgment.

7. If the application was truly filed why it was not been served. Mr Lidimani denies being served and there was no copy of such application in Court file. I can draw conclusion that the application to set aside may have been drafted but had never been filed and served. The filing date indicated on the purported application in Exh. PW1 attached to Watts sworn statement is not convincing and I refuse to accept.

8. What Mr Zama has raised could have been proper if the Counsel representing the Defendants attended the hearing when the application for summary judgment was heard which subsequently was in favour of the Claimants. Even so an appeal could have been filed in time. In my respectable view, any application to set aside is not a proper course available to the Defendants. The fact is that the judgment was drafted in style to reflect application for default and or Summary judgment. I do not think combination of two distinct applications be put together. There is clear distinctiveness between the two applications drawn from two distinctive back grounds of activities. They are not the same and cannot be combined in order to acquire one judgment. The rules are very clear in defining the nature of the two applications. In this case, an amended defence was filed on 5^th May, 2007, in response to Claimants further amended claim filed on 27^th April, 2007. Hence, the judgment given on 22^nd February, 2012, should be a summary judgment and not a default judgment. Therefore, an appeal should be the next process to take course and not an application for default judgment. Unfortunately, there was no appeal filed.

9. In the midst of that, if this Court could accept application for stay of proceedings awaiting determination by the Malaita Local Court, what then would happen to the summary judgment that had been delivered and there was no challenge by way of an appeal. It seems proper that the application to stay as a challenge to application for assessment is an eleventh hour attempt to derail the proceedings. I see there is no merit it; and assessment process must take precedent and pursued.

Quantum of damages

Damages for trespass to land

10. It is a settled law in this jurisdiction that the normal measure of damages was the amount of the reduced value of the land and not the cost of replacement. In the case of Patty V Tikani,^[1] the High Court provided three guiding scenarios in which trespass to land can be measured.

1. The trespasser simply passes by. The value of damages is the price a reasonable person would be willing to pay.

2. Where actual damage is caused as road construction, the damage would be the amount by which the land had been diminished but not the cost of restoration.

3. Where things on the land have been removed.

11. It is the second and the third scenario, which are applicable here where damages can be recovered for destruction to the soil by digging as well as removal of valuable trees; and in this case without the consent of the Claimants. Conversion of trees had been dealt with by the summary judgment, and the remaining part is now being assessed.

12. With no appeal filed since, the summary judgment can be treated as establishing on the balance of probabilities the claim for trespass and conversion of logs. It has been noted that as a result of trespass a total of 817 logs were extracted from Fi’ifauabu customary land.

Road construction:

13. These assessments are based on assessment and inspection reports by the Forestry Officer at Auki on 15^th January, 2004, and 21^st July 2005, respectively. For road construction it normally quantified by using average as standard value of one load of gravel per square meter. The average or standard rate is $7.00 per square metre is adopted to determine the value of one squares meter of removed topsoil, thus, replacement gravel. Therefore, the cost of one truckload of gravel would be at $200 per load. Road construction within Fi’ifauabu land ran inland for 1 kilometre (1000m). Thus 1,000 m of road at $200 per load fetch a total value of $200,000.00 (1000m× $200) in damages.

Skidding Roads:

14. According to the Forestry report damages to land and vegetation was also caused. In the absence of any detail report total skid road distance, damages can be calculated at no less than 50% of the amount claimed for road construction. Therefore, the total volume of damages caused by skidding would be $100,000 (50% of $200,000).

Conclusion:

15. That the damages for trespass are hereby awarded in terms of road construction and skidding totalled up to $300,000.00. 5% per annum interest on total damages from date of summary judgment is $79,024.00 × 1½ years, which is equal to $118,536.27, and further interest on total sum of judgment on assessment until payment.

Orders:

1. Reinforcing damages awarded in summary judgment on 22 February 2012, at $1,280,483.64 plus damages for trespass of $300,000; totalled up to $1,580,483.64. To be paid jointly and severally by the Defendants within 30 days.

2. 5% interest of $118,536.27, to be paid jointly and severally by the Defendants within 30 days and further interest on total sum of judgment on assessment until payment.

3. Cost is paid to the Claimants.

The Court.

^[1] [2002] SBHC 50