Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Russell Islands Plantation Ltd v Ship "Fera Faita'a" [2019] SBHC 1; HCSI-CC 4 of 2013 (8 January 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 4 of 2013

RUSSELL ISLANDS PLANTATION LIMITED
First Claimant

LEVERS SOLOMON LIMITED
Second Claimant

THE SHIP ”FERA FAITA’A”
First Defendant

THE SHIP ”ANGI TANGI FERA”
Second Defendant

REX FERA
Third Defendant

ATTORNEY GENERAL
Fourth Defendant
(For and on behalf of Police) Joined for injunction purposes only.

Date of Submission: 14 November 2018
Date of Decision: 8 January 2019

Mr. D. Nimepo for the First and Second Claimants
Mr. D. Marahare for the First, Second and Third Defendants
Attorney General not taking active role

DECISION ON QUANTUM OF DAMAGES

Faukona, PJ: An amended claim in Category A was filed on 7^th March 2013. Apparently there was no defence filed by all the Defendants. Before filing of the original claim on 31^st January 2013, pursuant to R7.12, there was an application for interlocutory orders filed on 16^th January 2013.

2. On 17^th January 2013, the interlocutory orders were granted against the first to the third Defendants.
3. As required by R7.10 relevant documents were filed including undertaking as to damages supporting the application.
4. On 28^th February 2013, an application to strike out the claim was filed. That application was amended on 30^th April 2013.
5. On 7^th June 2013, the court heard the application, and made its ruling on 29^th July 2013. The Court by its orders set aside the interlocutory orders perfected on 17^th January 2013 and struck out the claim for being frivolous and vexatious and disclose no cause of action. At that stage there was still no defence filed. There was no appeal filed, so apparently the case came to its end, sadly without any defence.
6. On 4^th September 2013, the First, Second and Third Defendants filed this application for assessment of damages. The major aspect of the application was to utilising the security for costs by under-taking as to damages by the Claimants when applied for interlocutory orders.
7. The costs incurred according to the reliefs sought were for damages and cost, and compensation for damages and costs as a result of the enforcement of the interlocutory orders. Noted the interlocutory orders lasted for 6 months and 12 days before they were set aside and discharged.
8. One anomaly noted is that there was no relief sought for loss of business by the first to the third Defendants, in particular for the 6 months and 12 days the period the orders were enforced. Probably they may be categorises as to compensation to damages.
9. It appears from pleadings that the damages are categories under two headings, one is damages for costs and the other is compensation for damages and cost. In careful perusal, the two categories do not feature different meaning, but appears to mean the same, that is assessment of damages and costs. As I have mentioned earlier the wordings do not describe any loss of earnings precisely.
10. In fact paragraph 4 of the application pleaded an approximate amount as $250,000.00 being for loss, damages and costs. Loss in that sense seems to appear for the first time and not convincing to implicate loss of business. In fact that particular loss was not define or pleaded.

SUBMISSIONS AND EVIDENCE

11. My orders of 29^th October 2018, the Counsel for the first to third Defendants agreed that this application for assessment of damages be determined on written submissions by the parties. On that date the Counsel for the Claimant was not present because he had withdrawn on the previous occasion, but had already filed written submissions.
12. Despite unavailability by the Counsel for the Claimant, it is relevant to determine the application for assessment of damages on its merits premise on the written submissions filed by the parties.
13. The damages the Defendants entitled to are those which they alleged had suffered for the period the grant of injunction orders sustained. The general acceptable view is that the damages must be confined to loss which is the natural consequence of the injunction under circumstances which the party obtaining the injunction has notice, see JP Enterprise v integrated Development Ltd (^[1])
14. The loss suffered must be loss from the interlocutory orders, and the question to is, did the making of orders caused the loss?
15. The onus of proof generally lies on the Defendants who assert that they had sustained damages by reason of the orders. They have to proof how they suffered on the balance of probabilities, see Totorea v Houairea^[2]
16. On the outset, it is pertinent to heed that any loss of damages claimed must be such which suffered during the period of injunctive orders. The period run from 17^th January 2013 to 29^th July 2013, the date the orders were set aside. In simple term the orders were enforced for the period of 6 months and 12 days. So where does 29 months a period of injunction come from. By what were asserted as facts, it is clear that the period of injunction was 6 months and 12 days and not 29 months. Determination for loss of damages in terms of business and etc. will premise on 6 months 12 days period and no more. Therefore, I will not consider loss claim for 29^th months and will ignore that absolutely.
17. I have perused the sworn statements of Mr Gideon Zoloveke and Mr Rex Fera. Mr Zoloveke‘s sworn statement disclosed a report of his finding in connection to the nine (9) categories of loss and damages the 1^st to 3^rd Defendant suffered because of the enforcement of the interlocutory orders for 29 months and not for 6 months and 12 days. Mr. Zoloveke concluded a total loss of business after assessments is $8,491,044.06, together with costs on standard basis of $18,000.00 to be added.
18. In contrast is the sworn statement of Mr Fera who adduced a total loss of $4,751,000.00, under the heading of business loss. He also exposed costs of $18,000.00 as costs on standard basis, legal fees of $23,000.00 and witness expenses of $30,000.00.
19. Before analysing and assessing the report and the sworn statements, it ought to be noted that this court has wide discretion to exercise in determining the quantum of damages. Any claim for damages must be proved by the applicants on the balances of probability that they have suffered loss; loss as a result of some furious act of or loss in business expectations which was hampered by some intervening actions or by an order of court which could not have been prevented due to impermissible situation, and loss of business, therefore arise out from such orders as in the current case.

LOSS OF BUSINESS BY MV BATAGAU (Table 3 and 5)

20. Unfortunate for the Defendants, this case had proceeded to the end without any defence being filed. Defence could have been filed before hearing of an application to strike out; at least a draft, but nothing was done, therefore the cases for all the Defendants had never been pleaded.
21. As a result the case for the ship MV Batagau could have been included as a party. Its claim appears as independent from other Defendants. It could have been proper for it to be a party. As it stands MV Batagau was not a party to these proceedings. A claim that it suffered loss of business because of the injunctive orders is quite remote. It cannot spread its tentacles into another legal area which itself was not a party to that forum. Therefore it is proper to dismiss its claim for loss of business on the outset. Its claim of loss of business is foreign, hence cannot attract any legal consideration at all. The report filed by Mr Zoloveke on 7^th December 2015 in respect of the ship MV Batagau was totally misconceived. See table 3 of the report.
22. This approach is equally applied to table 5 of the report. Again it concerns the ship MV Batagau and its operations from 2009 to 2015. The interim injunctive orders were granted on 17^th January 2013. It did not cover the period from 2009 to 17^th January 2013. Even for the rest of the 2 years to 2015, after 7^th January 2013. MV Batagau has not been a party to this case. To be a party only in the final assessment of damages is misconceived of legal processes. Therefore table 5 cannot be accepted as one of the consideration in determining the business loss of the ship as in table 3.

TABLE 6 OF THE REPORT

23. Table 6 of the report manifested a purchase of 300 bags of copra from local communities of Russell Islands. That purchase occurred once in 2007, yet it was calculated on the value for 9 years plus 25% interest.
24. There is no evidence of any loss of business under the purported agreement at Mendana Hotel in 2007, in respect of six months commencing on 17^th January 2013, pursuant to the operation of the interim injunctive orders. There is no documentary evidence as to which ship transported the bags of copra to Honiara in terms of receipt, as to the charter, freight receipts, and receipt related to the sales of copra issued by the buyer. The entire claim under this table is all imagination and expectation without any proper legal advice and proof.
25. The assessment this court is called for to do is in respect of 6 months and 12 days the interim restraining orders were in operation before it was discharged. Any claim apart from that six months and 12 days period running from 17^th January 2013 is misconceived and cannot be considered. Table (6) referred to incident occurred since 2006 and expected to run until 2015. That is a myth and illogical and outside of the injunctive period, therefore cannot be considered and must be dismissed in its entirety.

TABLE 7 OF THE REPORT

26. Table 7 was one of the incidents claimed for loss of 952 bags of copra down loaded by the First and Second Defendants at Honiara wharf which claimed to have been missing. It was claimed the off-loading was done during the course and operation of the restraining orders. 352 bags out of the total carriage were stored in a store house un-named.
27. In substantiating the claim, there was no evidence of the date of the off-loading of copra at the wharf in Honiara. There is no receipt of the purchase of the copra. There is no receipt if the ships were charted, or receipt of freights being paid. Again this is imaginative, and a ploy to earn money out of nothing. Courts are court of justice and there must be evidence to proof a claim. Meantime there is no shred of evidence to proof 952 bags was off-loaded and went missing. I must dismiss this claim and refuse to make any assessment as to the facts in the table. They appear amusing and carry no basis to attract assessment at all. The table reflects unsubstantiated facts.
28. Look at 25% interest in both Table 6 and 7 the biggest any business can impose to any single transaction. It was never substantiated by reason of evidence, hence; contribute to add more vagueness to the claim for business loss.

TABLE 4

29. Claim for business loss in this table attempts to reflect that Shine Cocoa Exporters had allocated $200,000.00 to its agents to purchase copra from producers at Yandina. The first question to ask is whether Shine Cocoa Exporters was a company owned by the Third Defendant and whether it was incorporated. There is no evidence implicated as such. If Shine Cocoa Exporters was an incorporated company then it should be made a party to this case of its own. An incorporated Company is a separate body from a person as the Third Defendant, therefore must be operated differently under its own business name.
30. It would appear there was more than one agent allocated with certain amount. There is no evidence how many agents were engaged and how much money was given to each agent. When were those monies/amount given. Date is of essence so that it would be identified as fallen within the injunctive period of 6 months and 12 days.
31. There must be receipts issued out by the agents to farmers who sold their bags of copra. To run business copies of receipts and books were kept. There was nothing produce to substantiate the loss. Figure appear in the table were assumable ones put in place to appear as reality, in fact were all fake.
32. At what location were 2500 bags damaged? Were all the agents spent the full amount of $200,000.00 to purchase those bags of copra. Again none of those purported agents produce any receipt. If the bags of copra were damaged in Honiara, then was there any receipt in respect of $150,000.00 being for freight at $60.00 per bag?
33. There is no evidence of any damaged bags of copra. The content of the table is mere imaginable and calculated with expectation that $200,000.00 had been used, and what would have been earned as expectation.
34. This sort of documentation with imaginal figures and assumptions is not real evidence to proof loss of business. I must reject this claim for loss of business and is dismissed in its entirety.

TABLE 1 AND 2

35. Table 1 and 2 of the expert report was an attempt to explore business loss of earning expected from the first and second Defendants out of their normal weekly schedule run to Russell Islands and back to Honiara. Again as shown the two ships normally made four (4) trips in a month on schedule which expectedly should continue for a period 29 months from 16^th January 2013 to 15^th June 2015.
36. As I have alluded to earlier, the major error the report expose is that the period the injunctive orders in operative was not 29 months but only 6 months and 12 days. On the outset the report was flawed for that matter alone.
37. The two tables reflect business loss for the two ships for the period alleged. Indeed the reports were similar in all aspect including heading on expenses except for carriage capacity which the 1^st Defendant had more than the second Defendant.
38. It would appear business losses were not in terms of copra loss, damage or missing because of the injunctive orders, but for freights charges in transportation of copra, goods and passengers.
39. One significant factor perceived is that the report was compiled and filed about 2 ½ years after the injunctive orders were discharged. If the first and the second Defendants were properly administered, records and receipts of their operations could have been kept and filed or recorded.
40. The two tables reflect a mere guess work or assumption that what was reflected in the headings were stable carriage with expected income and expenses for 6 months and 12 days. There was no record of receipts for cargoes, passengers and freights. At least record and receipts for one trip so that estimation of revenue, expenses and profits can profoundly concluded. Such would provide feasibility estimate that would occur in other weeks and months as well. In the absence it is difficult to assess any damage or foreseeable damage.
41. Perceivably, the report was drawn, not from any record kept by the ships, but by guess work of someone who conveyed information to Mr. Zoloveke the expert (the reporter). In such situation the figure arrived at were not substantiated. In court, evidence is required to proof an assertion of fact. This does not happen in this case. I must therefore dismiss those claims for business loss in the two tables. The report was poorly done and was unsubstantiated.

WITNESS COSTS AND EXPENSES

42. There are five sworn statements filed in support of the Defendants’ case, four (4) from Russell Island and one from Mr Fera himself. Like the report itself, and the submissions by the Counsel, there is no proof or particularisation of witness’s expenses in terms of transport expenses, accommodation and living expenses. Those expenses heads must be substantiated by producing of receipts. Nothing was produced as evidence of proof. Therefore the claim for witness expenses is vague and assumptive.
43. What appears as particularisation of the expenses incurred by witnesses is inaccurate and was not substantive by any receipts. Four sworn statements of four witnesses living at Yandina relied on as basis for the expenses.
44. There was no mention of which boat the witnesses travelled from Yandina to Honiara and back. There was no explanation why Mr Bartholomew’s allowance was higher than the other three in the first instance when they were called to Honiara to give sworn statements. Was it appropriate to live in Honiara for 14 days? Mr Jeffrey Hou’s sworn statement consisted of 2 pages, one is the actual evidence. The same as Mr Kelly’s sworn statement. Mr Thomas gave sworn statements which contain three pages, only two pages contain evidence. No sworn statement of Mr. Bartholomew was on record.
45. It is inappropriate to spend 14 days in Honiara in order to depose a sworn statement consisted of 2 or 3 pages. That can be done in one day.
46. There were also claims of expenses incurred by witness attending 3 mentioned dates. That is un-necessary. Witnesses do not attend mention dates; they only attended trial date. $30,000.00 claim as assessment of witness expenses in all is fallacy. No facts related to receipts issued by boats as fairs by witnesses to Honiara and back to Russell Islands. Allowances received by each witness are not substantiated. Those sworn statements deposed by the purported witnessed did not contain a shred of evidence in support of the expenses they incurred in coming to Honiara to depose their sworn statement and to attend to mention dates. Therefore, I must dismiss this claim in its entirety. There is nothing to assess, the figures in the table are unsubstantiated and presumptive in nature.

DAMAGES TO MV ANIDANI DUE TO INJUNCTION.

47. The claim for damages to be assessed were damages alleged to have been sustained by the ship MV Anitani whilst lying idle at Auki harbour after the injunctions were granted. Because of its fidelity and none operation, certain parts of the vessel had to be replaced and repaired.
48. The question to pause is was the ship MV Anidani built to serve Russell Islands Plantation Estates Ltd (RIPLE) only. Actually all timber boats were built in Malaita with few exception but not in the Russells. The ship is definitely own by a Malaitan. Evidence from the report exposed that Auki was the birth place of MV Anidani. Damages suffered by the boat were when it was under the care of the owner or the charterer whilst birthing at Auki harbour.
49. Russell Islands is not the only destination that ship owners would like to trade. Most ships owned by Malaitan people serve between Honiara and Auki and of course other islands in the other Provinces.
50. The injunctive orders were granted on 16^th January 2013 which last only for 6 months and 12 days before it was discharged. Without any ambiguity and doubt, the damages suffered by the boat are so remote from the effects of the injunctive orders. They were damages not directly caused by the injunctive orders. The claim for such damages to be assessed is absolutely misconceived.
51. The owner of the boat can fairly utilise the boat to service other areas in Malaita or other Provinces. Transportation by ship is a conclusive enterprise in almost everywhere in the Solomon Islands. To give lay excuse that the injunctive orders affected the operation of MV Anidani whilst birthing idle at Auki harbour until damages were incurred was a reason no logical person would conclude.
52. The court is actually not assisted in carrying out its duties assessing the damages alleged to have occurred to the boat. Without production of any receipt at all it is difficult to carry out any assessment. It is simply to conclude there were no receipts whatsoever issued for all the spare parts bought, no material indication as to evidence as to how labour costs were paid. I must therefore dismiss the claim for assessment as it is frivolous and assumptive.

COSTS

53. The issue of costs is a matter for the court to exercise its discretion whether to grant or not. Apparently all the claims for damages purportedly suffered by the Defendants and others are not proved by evidence on the balance of probability, I must refuse to award any costs, even incidental to this hearing, to the Defendants. The only cost which they are entitled to are the cost awarded when they succeed in their application to strike out which the court had granted and which the Claimants would have paid.

In conclusion I must dismiss the application by all the Defendants for assessment of damages of which they have not proved by evidence on the balance of probability.

ORDERS

1. Application for assessment of damages dismissed in its entirety.
2. Cost incidental to this hearing is hereby awarded to the Claimants on Standard basis.

THE COURT
........................
JUSTICE R. FAUKONA
PUISNE JUDGE

^[1] (2014) SMHC 52; HC59 – cc 96 of 2005 (14 May 2014)
^[2] (2008) SBHC 42.