Caribbean Land and Cattle Company Ltd v Mak

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Malone, C.J.
• Judgment Date: 02 October 1978
• Docket Number: Civil Action No. 73 of 1977
• Date: 02 October 1978

Supreme Court

Malone, C.J.

Civil Action No. 73 of 1977

Caribbean Land and Cattle Company Limited

and

Mak

Appearances:

Mr. D.R. Lindo et al for the plaintiff

Senator S.W. Musa for the defendant

Before the Hon. Sir Denis Malone, Chief Justice

Conversion - Damages — Assessment of damages

Facts: Test to be applied — Defendant felled and converted trees of plaintiff on plaintiff's land — Felled trees impounded and restored to plaintiff shortly after act of conversion

Held: Where converted goods restored to owner shortly after act of conversion, only nominal damages recoverable.

1 On the 12th June, 1978, judgment was entered for so much of the claim in this action as alleges that in the course of logging operations in the year 1977, the defendant wrongfully cut and removed rosewood trees of the plaintiff. The assessment of the damages was then postponed pending tree hearing of further submissions. These submissions were heard on the 13th September 1978.

2 Central to the submissions made by both counsels is this question. Did Mr. Garcia's order that the felled rosewood trees were not to be removed until the issue of their ownership had been resolved constitute a novus actus interveniens? On behalf of the plaintiff it was submitted in the first place that as Mr. Garcia acted upon authority conferred on him by the Forestry Ordinance, his act was the lawful act of a third party and could not therefore be regarded as a novus actus interveniens. Alternatively, it was submitted that Mr. Garcia's act was the act of a third party taken to protect the interest of the third party and for that reason also was not a novus actus interveniens. That interest being the right of the Government to royalties in respect of trees felled on Crown land. Accordingly, it was said that as the ownership of the felled trees was in dispute and Mr. Garcia believed that they were trees that had stood on Crown land, he was obliged to order that the trees remain where they were until the issue of their ownership had been resolved.

3 For the defence, it was submitted that Mr. Garcia's action was not foreseeable and it was said that as foreseeability is the test to determine whether an act is or is not a novus actus interveniens, Mr. Garcia's act constituted a novus actus interveniens. Counsel for the defendant submitted that Mr. Garcia's act was not foreseeable because it was not to be expected that in response to the defendant's unlawful act, the plaintiff would take illegal action. Namely deal in timber without a licence and so provoke Mr. Garcia into taking the action that he did take. It was also submitted that Mr. Garcia's act was not foreseeable because it was itself an unwarrantable and unreasonable act.

4 The issue whether Mr. Garcia's act is a novus actus interveniens may be of importance for the reason that there is evidence that as a result of that act, the felled trees have so deteriorated by being left to lie ore the ground that their market value has been severely reduced. That evidence was given by Mr. Samuel and by Mr. Louis Lindo. The former was of the opinion that the felled trees had depreciated in value by 30% – 50% because he said that buyers in the United States of America, Japan and Germany like the logs to be delivered to them within three months of the trees being felled. Mr. Lindo lent support to that opinion when he said that because rosewood is a hard wood, it becomes increasingly difficult to work when no longer green so that buyers like to buy it green. Accordingly, if felled trees are allowed to lie on the ground without measures being taken to ensure the retention of their sap, as by sealing them, they lose their value as they dry out. Mr. Lindo estimated that under shaded conditions, felled rosewood trees would depreciate in value by about 10% – 15% after six months and by about 50% after a year. If left in unshaded conditions, the rate of depreciation would be of the order of 10% – 15% after three months and at least 50% after six months. Consequently if the evidence of Mr. Samuel and Mr. Lindo is accepted and Mr. Garcia's act is found not to have been a novus actus interveniens, the damages payable must greatly exceed the amount that would be awarded as damages, if either that evidence is not accepted or whether accepted or not, it is found that Mr. Garcia's act was a novus actus interveniens. The only other evidence on the matter came from Mr. Garcia. In cross-examination he said: “The logs are still on the ground. They are still 100% sound.” And to the Court he said: “Rosewod is easier to work when it is hard. After six months it will shoot but it is not very green and it is drying. The wood is there but it is getting dryer and harder.” It is also of interest to note that in assessing the royalties payable on the trees felled in 1975 – 1975 by the defendant, Mr. Garcia discounted the total tonnage of 124 tons by 5 tons to allow for the weight of the sap. In so doing, and it is not in dispute that he did do so, Mr. Garcia it would seem to me was following a practice of Government forestry officers. The effect of that practice would be to reduce the amount of the royalty payable the greener the condition of the tree. It is a. practice which, I venture to think, is not likely to be followed if, as Messrs. Samuel and Lindo maintain, rosewood logs are most valuable to buyers when green. Faced with this conflict of evidence between these witnesses of the plaintiff and with commonsense suggesting to me that those who work wood prefer to work it when free of sap, I find that the plaintiff has not proved that as a result of Mr. Garcia's act, the felled trees are in any worse condition today than they were when first felled. That finding results in its being unnecessary to decide whether Mr. Garcia's act was or was not a novus actus interveniens. Nevertheless, as the point has been argued, I should perhaps make a finding. To my mind, Mr. Garcia's act is a link in the chain of causation stretching from the trespass by the defendant. I cannot in the first place accept the argument that the plaintiff's alleged illegal act an dealing with the felled trees was not foreseeable. I venture to think that whether the plaintiff had or had not a licence to deal with the felled trees, it is only to be expected that it would endeavour to collect them and make sure that they were not interfered with by the defendant. Indeed, not to have done so could have exposed it to a charge of not attempting to mitigate its loss. Therefore the action taken by the plaintiff ought clearly to have been foreseen. In fact, the plaintiff did have a licence to deal with trees, though not rosewood trees, and did apply, although without success, to have its licence amended so as to include rosewood trees. If at the point when the plaintiff had...