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Kasim v Matau [2002] FJHC 288; HBC0034.1998 (27 March 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 0034 OF 1998

BETWEEN:

MOHAMMED KASIM
MOHAMMED ALI
Plaintiffs

AND:

VELIVE MATAU
FIJI PINE LIMITED
Defendants

Mr. R.P. Singh for the Plaintiffs
Mr. J. Pala for the Defendants

JUDGMENT

This case involves an assessment of damages in respect of a default judgment entered against the plaintiffs on a counterclaim and concerns pine trees planted by the defendants on land that the plaintiffs claim is included in their native leasehold (the `disputed land’).

On 28th April 1998 the plaintiffs issued proceedings against the defendant seeking a declaration as to the ownership of the disputed land and an injunction to restrain the defendants from interfering with the plaintiffs harvesting of the pine trees. On the same day the plaintiffs’ solicitors applied ex-parte for the injunction sought in the claim and this was granted on 4th June 1998.

On 20th July 1998 the second defendant applied `inter partes for the dissolution of the injunction and this was eventually granted on 9th April 1999 after two extensions.

In dissolving the injunction with costs Madraiwiwi J. (as he then was) said (at p.3):

`The plaintiffs in obtaining the initial injunction ex-parte on 4 June 1998 ...... failed to observe the utmost good faith required of them.’

His lordship was also able from the affidavit evidence filed before him, to draw `several important conclusions’ namely, `first that the parties entered into some sort of agreement transferring the land on which the pine trees were planted’, and, `third, that the plaintiffs allowed some sixteen years to pass before asserting a claim to the pine trees they did not plant. It beggars belief that such an area was cleared and planted without their approval.’

Be that as it may on 30th August 1999 the plaintiff filed a Statement of Claim seeking two (2) declarations. The first concerning the ownership and area of the land comprised within the plaintiffs native leasehold, and, a second declaration concerning the disputed land and the ownership of the pine trees growing thereon.

On 10 September 1999 the defendants filed a Statement of Defence pleading `laches’ and `estoppel’ and claiming damages in a counter-claim for the removal and conversion by the plaintiffs of `mature and/or near mature pine forest’ that the second defendant had planted on the disputed land.

On 6th October 1999 in the absence of a defence to the defendants’ counter-claim, default judgment was entered for damages to be assessed.

On 22nd October 1999 the 2nd defendant issued a notice to fix a date for the assessment of damages and this was adjourned on 23rd November 1999 in part to allow plaintiffs’ counsel to `seek to set aside the default judgment.’ This was not done and eventually the assessment hearing took place on 21st March 2000 after the Court rejected a further application by plaintiffs counsel for an adjournment to enable the plaintiffs `to contest the default judgment.’

At the assessment hearing the second defendant called two (2) witnesses who were cross-examined by plaintiffs’ counsel. The plaintiffs called no evidence nor did counsel consider it prudent to produce the plaintiffs’ native leasehold document or a survey plan of the same for the consideration of the Court.

The first witness called by the 2nd defendant company was Josaia Koroi a forest officer employed by the 2nd defendant company for over 20 years. His evidence which is not lengthy bears repeating. He said:

`I am responsible for planting or establishing pine forests and protecting them for the defendant company. The area in this case is under my control and I am authorised by defendant company to give evidence and have the record with me. To my knowledge the land is owned by mataqali Naita of Lekutu, Bua but area is leased to Fiji Pine.

Began planting pine trees on the land in 1982. Planted 642 trees per hectare. Recoverable volume of timber is 256 tons per hectare. Maturity date is around 2003 i.e. 20 years from planting. I expect to harvest 8,391 tons of pine from that 81 acres of pine planted.

To my knowledge plaintiffs started logging the area in 1997 and again in 1998. I went with a land owner and stopped people logging the area i.e. logging contractor. The cut logs were taken by Fiji Pine.

Plaintiffs got an injunction to stop us from stopping them but one of the land owners told us to ignore it. In March 1999 the injunction was dissolved.

Whilst injunction in place the plaintiffs logged about 1,136.64 tons of pine logs which is equal to 2,848 trees.

When asked:

Q: How determined trees logged? he answered:

A: I went with a group and counted every tree stump logged.

The stumps were very clear.

We confiscated 982 tons of logs. Correction (after refreshing): 154 tons. Plaintiffs managed to take (1136-154) = 982 tons.’

In cross-examination the witness frankly admitted that the disputed area was not surveyed but he was adamant that the land that was planted with pine trees was `...... under our lease’, furthermore the area he had physically examined for cut pine tree stumps `...... is under my responsibility.’

When asked:

Q: How calculate tonnage from trees ? He replied :

A: there is a program called MARVEL where we put in a plot and estimate yield from area of plot.

In the latter regard however and in answer to the Court’s questions, the witness accepted that:

`The margin of error in the MARVEL program is + 10%. There is no error as to the number of trees harvested. The timber tonnage recovery has a + 10% error because the programme is used to estimate it.’

The second witness was Deo Saran the Director Corporate Services of the 2nd defendant company. He produced an N.L.T.B. Approval Notice dated 1st March 1982 together with a map of unsurveyed lands over which the 2nd defendant company held a RE-AFFORESTATION lease and included amongst which was the disputed land known as `NAITA’ with an area of 81 acres.

He testified as to the circumstances under which the 2nd defendant company acquired the disputed land and the fact that the plaintiffs had started logging the pine trees in August 1997, and he confirmed that most logging had occurred during the time that the plaintiffs injunction was extant. He then explained how he had calculated the loss to the 2nd defendant company of the harvested pine trees, as follows:

`The value of pine logs is $18.02c per ton.

Based on 2,848 trees removed by way of selective logging from different areas. Using Marvin program we estimate the area covered 2,848 = 4.4 hectares. 642

After getting equivalent hectare we know general yield is 256 tons/per hectare (4.4 x 256) = 1,136.64 tons of timber. We confiscated 154.4 tons of timber.

The total value is $(982 x $18.02) - $17,699.96. We also seek interest on logs taken. Currently we pay 10.5 % interest on our Overdraft amounting to $1,848.34 in interest from date of dissolution to today. Total $19,548.30.

Seek costs in this case. Came from Lautoka for this case today $2,500 costs.’

He too frankly admitted in cross-examination that the disputed land was originally owned by the plaintiffs under a native leasehold but that it had been surrendered by the plaintiffs in 1980 and thereafter formed part of the lands in the 2nd defendant company’s Approval Notice for which the 2nd defendant company had been paying lease rental. He described how the surrender document had a typo-error which described the surrendered land in `acres’ instead of `hectares’ and was adamant that although the surrendered land was not surveyed, `there were no complaints ever made to NLTB or Fiji Pine after we began planting (on the land).’

In his closing address plaintiff’s counsel merely asserted:

`The area in question is not surveyed. The trees removed court can’t be sure if removed from land surrendered by the plaintiffs. No surveyor called to interpret the map. Not conclusive that the trees cut belonged to the defendant company.’

In this regard however the plaintiffs’ Statement of Claim concedes that ` in 84 acres ...... the 2nd defendants had planted pine trees about 16 years ago’ (see: para.3) and further, `...... the plaintiffs (had) agreed to give about 35 acres of hilly land to the 2nd defendant’ (see: para.5).

Having considered the evidence and the pleadings I am satisfied beyond any doubt that the defendant company planted the pine trees growing on the disputed land and that the plaintiffs harvested from the disputed land 2,848 pine trees which belonged to the 2nd defendant company.

It is unnecessary for present purposes to finally resolve the issue of whether or not the disputed land was comprised within the plaintiffs’ native leasehold or within the 2nd defendant’s Approval Notice.

The fact remains that the pine trees growing on the disputed land were planted and therefore are owned by the 2nd defendant company and in so far as that is concerned, in the absence of a Reply to the Statement of Defence and default judgment having been entered or the 2nd defendant company’s counterclaim, it is too late in the day to argue that the land on which the pine trees were planted belongs to the plaintiffs.

Furthermore there being no evidence to refute the method of calculation adopted by the 2nd defendant company’s witnesses I am content to adopt the same in assessing damages based on the expected tonnage recovery per hectare and the uncontested fact that 2,848 pine trees were harvested
by the plaintiffs which represents an expected yield of 982 tones of pine timber.

I assess the damages as follows:

There will be judgment entered for the 2nd defendant company against the plaintiffs in the sum of $19,005.08 together with interest @ 4% p.a. on the judgment sum until date of payment. The 2nd defendant company also seeks costs which are summarily fixed at $750.

(D.V. Fatiaki)
JUDGE

At Labasa,
27th March, 2002.