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Taamora v Rarahu Landholding Group [2012] SBHC 2; HCSI-CC 172 of 2009 (31 January 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 172 of 2009

BETWEEN

CYPRIAN TAAMORA
(Representing the Waii tribe)
Claimant

And

RARAHU LANDHOLDING GROUP
First Defendant

And

SAMLIMSAM (SI) Ltd
Second Defendant

Mr Afeau for the Claimant
Mr Pitakaka for the First and Second Defendants

Date of Hearing: 11th November 2011
Date of Judgment: 31st January 2012

Judgment

1. A claim was filed in this matter on 22nd June 2009. The Claim can be found starting at page 3 of the court book. The Claimant represents the Waii tribe. They say they are the customary landowners of Waii land in West Are'are, Malaita Province. They agree the First Defendant has a felling licence (No. A10038) which was issued on 4th October 2007. A copy of the licence is shown at page 19 of the court book. The licence contains details of the lands covered. The Claimant says the licence does not apply to Waii land. A logging and marketing agreement was concluded between the First and Second Defendants. Pursuant to that agreement logging took place on Sui land. The Claimant has no interest in Sui land. His case is that in the course of logging Sui land the Defendants entered Waii land. The Defendants simply say Waii land is "not a land within Urusu'u and Rarahu land in accordance with West Are'are land tenure system". The Defendants deny Sui land shares a common border with Waii land and say there has been no trespass.

2. The Claimant referred the dispute to the Po'oikera House of Chiefs. The Chiefs considered the case in July 2009. They concluded, "Rarahu Land Holdings have illegally trespass into Waii through Sui to do logging activities". A full record of the proceedings before the Chiefs is exhibited to an extensive sworn statement dated 1st October 2009 by Aloysio Awairaro on behalf of the Claimant [1]. There is very little by way of material from the Defendants. However, nearly two years after the Chiefs' decision Mr Sylvester Akoai on behalf of the First Defendant seems to have lodged something in the Malaita Local Court. What it is he has lodged must remain a mystery because no copies have been provided to this court and that is despite directions and orders made on 4th July 2011 giving leave to introduce such material into evidence.

3. The order (of 4th July) also set the matter down for trial on 17th October 2011. The matter was listed for a mention on 12th October 2011. At the mention hearing it became apparent that nothing further had been filed on behalf of the Defendants. In fact nothing further had been done to comply with the order of 4th July. It was a similar story back in April 2011. Goldsbrough J gave directions in February. Despite those directions, agreed facts and issues were not filed until 23rd May 2011. It took two further hearings and the possibility of the defence being struck out before they were filed. The court book was filed on the same day. These delays were caused by the Defendants.

4. On the day of the trial Counsel for the Defendants was ill. The trial was adjourned until 11th November and directions were given for written submissions to be filed. The trial was to proceed on the agreed evidence (the court book), the agreed facts and issues and written submissions.

5. The agreed issues really amount to only the one question; has there been trespass on Waii land as alleged? There are ancillary questions namely, if it is established the Defendants have trespassed what damages are they liable to pay for conversion of timber and environmental harm.

6. The agreed facts basically confirm what is said in paragraphs 1 and 2 above. The main issue is ownership of Waii land. Counsel for the Defendants submits, "In customary land High Court do (sic) not have jurisdiction to deal with the issue of ownership of Customary land". He refers to the case of Totorea and Others v. Taiarata Intergrated Forest Company Ltd and Anor Civil case 204 of 2000. That case deals with interim orders. In any event there is no question about the High Court's jurisdiction to decide the ownership of customary land, basically it hasn't any. The jurisdiction to decide the ownership of customary land is reserved to the Local Courts. However, in this case the issue is whether there has been trespass over customary land. That is of course related to ownership of the land but here the court is not being asked to decide who owns the land it is being asked if the Claimant has sufficiently proved his ownership as opposed to anyone else's. That is a different question, it is one of evidence.

7. The Defendants submit there has been no final decision about the ownership of Waii land. Leaving aside the difficulty which arises from the nature of decisions as to who owns customary land, they are decisions in personam not decisions in rem, that is not something that can be said with any certainty in this case. The Claimant can point to a decision of the Chiefs. The Defendants say they have "appealed" that decision to the Local Court. The only evidence is a letter from the Local Court Clerk in Malaita [2]. That is insufficient evidence. The Chiefs decision was made in July 2009. The letter is dated May 2011. The representative from the First Defendant did nothing for nearly two years. Even ignoring that delay, the Defendants have been given ample opportunity in these proceedings to provide evidence about the Malaita Local Court case but they have produced nothing. There is no copy of the unaccepted settlement form, no copy of the statement required by section 12(3) of the Local Courts Act [Cap. 19]. There is nothing, apart from the Clerk's letter, to indicate there is actually a case before the Local Court and even less to say what that case may be about. The Claimant is entitled to rely on the decision by the Chiefs to establish his rights and those of the Waii tribe over the land. Until it is set aside or otherwise disposed of the decision of the Chiefs is perfectly valid and incontrovertible evidence of where the boundary of Waii and Sui land is.

8. The proceedings before the Chiefs are said to be flawed. It is not for this court to deal with the decision as if it were dealing with an appeal against it. However, having looked at the record it is hard to discern anything fundamentally wrong with what the Chiefs did or said. Mr Sylvester Akoai represented Rarahu land including Sui land. He objected to three of the Chiefs sitting on the panel. The Chiefs adjourned the hearing to consider the objections. They agreed with one objection but rejected two others. The original chairman stood down and he was replaced with someone else. Mr Akoai then objected because his key witnesses were not present. The Chiefs decided that he had been given over three weeks' notice of the hearing and thought the hearing should proceed. Mr Akoai raised another objection concerning witnesses for the Claimant and then he left the hearing. The President decided to continue. Although they only had one party before them the record shows the Chiefs considered the matter very carefully and thoroughly. They went and surveyed the area in dispute. They were satisfied about "traditional or customary boundary marks" they saw.

9. The High Court claim was filed in June 2009 before the hearing in front of the Chiefs. However, in October 2009 the matter came before the High Court (Goldsbrough J) on an application for an interim order. His Lordship granted the interim order. It is noted from the recital in the order the Defendants were served personally with the application and supporting documents [3] but chose not to attend. The sworn statement from Mr Awairaro in support of the application for the interim order (filed on 1st October 2009) had annexed to it a copy of the record of the proceedings before the Chiefs. Despite knowing the Claimant was relying on the Chiefs decision, it is over 18 months before the Defendants, in the shape of Mr Akoai, supposedly involves the Local Court. As indicated above it is said he has, "reported the dispute to the Malaita Local Court" but he has produced no evidence of that apart from the letter referred to earlier.

10. I am satisfied the Claimant has established that the Defendants crossed the present and proven customary boundary between Sui and Waii land. The First Defendant makes no claim as to the ownership of Waii land. The Defendants had no ostensible or actual authority or permission to enter Waii land. They have trespassed on Waii land. The Claimant is entitled to judgment.

11. Evidence of conversion comes from Mr Alfred Ma'aramo of the Afio office of the Ministry of Forestry. His report is dated 20th November 2009 and can be found at page 77 of the court book. The report is not challenged. He found that 139 trees had been harvested. The evidence available indicates 100 trees were exported on 21st May 2009. Full details are given at page 83 of the court book. There were 3 logs scaled and details of them can be found at page 82 of the court book. That leaves 36 logs unaccounted for. The average volume of the exported logs is 4.745 cubic metres per piece. For the three scaled logs it is 6.670 cubic metres. An average of the two volumes is 5.250 cubic metres. On the basis of that average figure the 36 logs unaccounted for had a volume of 189 cubic metres. There is no indication as to the species of the 3 scaled logs and the 36 unaccounted for. Resorting to an average again the export value of the timber would amount to 189 x (41810.72/474.516). That translates into 189 x 88.11 or US$ 16, 653.23. That has to be added to the established export value (see page 83 of the court book) of US$ 41,810.72 making a total of US$ 58,463.95.

12. In submissions, Counsel for the Claimants points to what appears to be different approaches to the assessment of damages in such cases as this. Here the claim is in trespass but it should not matter by what name the tort is called, the end result should be the same. Gone are the days when an election had to be made to sue, for example, in trover or detinue when different results would flow from that choice. What is essential is that a successful claimant who is the victim of a tortious act should recover his losses arising from that act. If he has been deprived of property his loss will be the value of that property. That is the market value of the property. The differences in approach in calculating the quantum of damages results from differences of view as to the market value. The answer to the simple question, how much is a tree worth, depends on the circumstances. As a generalisation, a standing tree is worth 15% of its value as exported timber. That is what a landowner could "sell" it for. If he cut down the tree, skidded it to a log pond and then put it on board a log ship he would get the export value. However he would have been involved in costs, the costs of felling, skidding etc. I understand the law to be that if someone else wrongfully cuts down the tree, skids it and exports it the owner will be entitled to the market value obtained by that someone else subject to deduction of the costs incurred. This seems to be the result of a long line of cases such as Livingstone v. The Rawyards Coal Company [1880] UKHL 3; (1880) 5 App.Cas. 25; and In re United Merthyr Collieries Company Law Rep. [1872] UKLawRpEq 168; 15 Eq. 46.

13. The quantum of damages is calculated by the formula of EV – (DT + (EX-PM)). EV is the export value, DT is the duty payable to the Government, EX is the cost of production and PM is the profit margin. In the present case the issue is slightly more complicated because some of the "converted" timber was not exported and therefore no duty is payable. There must be two calculations, one in respect of exported timber and one in respect of the scaled (but not exported) timber and the unaccounted for timber. In respect of that timber the formula would be EV – (EX – PM).

14. In respect of the timber actually exported the value of EV is known. It is US$ 41,810.72. The duty on that sum would be 25% or 10,452.68. The exact value of EX is not known. There is no evidence of the costs of production from the Second Defendant. What is known, because it is set out in the Logging and Marketing Agreement between the First and Second Defendants [4] is the latter was entitled to retain 60% of the FOB value of the timber [5]. That must represent the Second Defendant's expenses, but it would also include the profit it would make. It would defy logic to say the Second Defendant did not make a profit from the operation. There is no evidence about the profit margin it would expect. A reasonable profit margin would be between 10 and 20 per cent. The mean would be 15%. The elements of the formula can be completed. The value EX would be 60% of 41,810.72 or 25,086.43. The profit margin or PM would equal 15% of 25,086.43 or 3,762.96.The complete calculation for the exported logs is;

41,810.72 – (10,452.68 + (25,086.43 – 3,762.96)) = 10,034.57

The Claimants are entitled to the Solomon dollar equivalent of US$ 10,034.57 in respect of the logs exported.

15. As for the remaining timber, the value of EV is known to be or has been calculated to be 16,653.23 [6]. The EX value would be 60% of that or 9,991.94. The PM would be 15% of that figure or 1,498.79. The calculation for the remaining timber is;

16,653.23 – (9,991.94 – 1,498.79) = 8,493.15

The Claimants are entitled to the Solomon dollar equivalent of US$ 8,493.15 for the remainder of the timber. The total in respect of all the converted timber would be the Solomon dollar equivalent of US$ 18,527.72. The proper exchange rate would be that which applied at 21st May 2009.

16. The Claimants also seek damages for injury caused to the environment by the activities of the Defendants. The damage caused is detailed in Mr Ma'aramo's report referred to earlier. He describes skidding tracks, some 3 metres deep, and general damage to streams and the natural vegetation. There is no real challenge to his observations. The skidding tracks and roads cover an area of 11,960 square metres. It has been accepted in several cases that a value of $7.50 per metre squared is the appropriate value to place on such damage. The Claimant is entitled to recover the sum of SBD 89,700.00 in respect of the damage caused by road or track construction.

17. It is also submitted on behalf of the Claimant that a further area of damage can be calculated by reference to the number of trees felled. Whilst the submission is superficially attractive the methodology used would lead to a claim for damage covering an area which would be excessive compared to the actual impact on the environment. However, the evidence seems to suggest this was pristine rain forest. There is no evidence the Claimant's tribe intended to log the area. An area at least the size of that covered by the skidding tracks was likely to be affected and some of the damage was critical with streams being bulldozed over. A reasonable global sum to compensate for the damage would be SBD 100,000.00.

18. In summary the Claimant is entitled to damages to be jointly paid by the First and Second Defendants, for the converted timber amounting to the Solomon dollar equivalent of US$ 18,527.72. The exchange rate applicable to that sum will be that which was effective on 21st May 2009. Interest on that sum at the statutory rate will be payable from 21st May 2009 to date of filing and from date of filing to the date of judgment. For environmental damage the Claimant is entitled to recover SBD 189,700.00. Interest on that sum is payable from date of filing to the date of judgment. The Defendants will also pay the Claimant's costs and they will be taxed at the standard rate if not agreed.

Chetwynd J

^[1] See page 12 of the court book for the start of the sworn statement and page 55 for the proceedings before the Chiefs.
^[2] See page 151 of the court book.
^[3] See the sworn statement of Mr Aloysio Awairaro filed 29^th October 2009
^[4] See page 121 of the court book
^[5] See clause 5.3 of the agreement ibid
^[6] See paragraph 11 above