Kumar v Native Land Trust Board [2013] FJHC 28; HBC229.2004 (8 February 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO: HBC 229 OF 2004

BETWEEN:

RAKESH KUMAR
Plaintiff

AND:

NATIVE LAND TRUST BOARD
Defendant

Mr R P Singh for the Plaintiff
Ms L Macedru for the Defendant

JUDGMENT

In this action the Plaintiff seeks damages for loss and damage which he claims that he has suffered as a result of excavation works conducted by or on behalf of the Defendant on land adjoining the land occupied by him. The Plaintiff was in occupation of the land as lessee and the Defendant was his lessor. The land was native land. The Defendant also held legal ownership of the lots of native land adjoining the Plaintiff's lot.

The background to the claim may be stated briefly. On 24 February 2000 the parties signed a document with the title "Agreement for Lease." Immediately under the title appear the words "For Residential Purposes." It was an agreement that was executed pursuant to Regulation 12 of the Native Land Trust (Leases and Licences) Regulations 1984. It appears not to be in dispute that the agreement was for 75 years at an annual rent of $85.00 commencing on 1 January 2000. It would appear from clause 1 that in consideration of the sum of $3,000.00 paid by the Plaintiff to the Defendant on or before the execution of the document, the Defendant (as lessor) thereby demised to the Plaintiff (as lessee) the native land described as Sakoca Heights S/D Lot 191 being 236 square metres in the Province of Naitasiri.

It would appear that the Plaintiff had erected a dwelling house built on wooden posts on the lot sometime before he signed the agreement. He had previously occupied the land as a squatter.

In his amended Statement of Claim the Plaintiff alleges that in March 2004 servants and/or agents of the Defendant entered upon land adjoining the leased land occupied by the Plaintiff and commenced grading, excavating and digging development works. The Plaintiff alleges that as a result of these works, the Plaintiff has suffered loss and damage. In particular the Plaintiff claims that the soil on three sides of his land has been graded so that it is now higher than his land. The Plaintiff claims that as result of this, his land became a lake, whenever it rained as all the run off was on to his land. He alleges that this accumulated water risked the posts upon which the house is built rotting and weakening. The stagnant water resulted in mosquito breeding. He had to dig drains to attempt to get rid of the water. There was an on-going risk that his house would become flooded.

The Plaintiff alleges that the Defendant recklessly disregarded his rights as lessee of the land under the agreement with the Defendant. The Plaintiff also alleges that the Defendant was in breach of the agreement by not allowing the Plaintiff to have peaceful occupation of the leased land.

Although the Plaintiff has referred to his occupying the land pursuant to a lease, the Defendant in its Defence admits only that the Plaintiff holds an Agreement for Lease from the Defendant. The Defendant also raises an issue concerning a requirement to have the leased land surveyed the responsibility for which rested with the Plaintiff.

The Defendant claims that there was consultation with the landowners and tenants on the need to carry out the works. The Defendant claimed that the Plaintiff was "holding provisional agreement for lease" which still guaranteed his tenancy. In paragraph 39 of the Defendant's Defence there is a confusing reference to the Plaintiff's "current leasehold" being "bigger than what (he) currently holds."

The Defendant denied that there has been substantial damage to the Plaintiff's leased land on the basis that the lease is still the subject of a survey. It is claimed that without a registered survey plan the Plaintiff cannot claim that his leasehold has been damaged. The Defendant alleged that the Plaintiff breached the lease agreement by failing to have the leased land surveyed by a surveyor.

The Defendant denies any negligence on its part since all due care was taken through consultations prior to the excavation works commencing. In paragraph 6 of the Defendant's Defence it is claimed that the Plaintiff's blatant ignorance of advice given to him has led to his misery.

In the Minutes of the Pre-Trial Conference dated 30 July 2008 the following were stated to be the agreed facts.

"1. The Plaintiff was granted a lease on Native Land known as Sakoca Heights S/D Lot 191 having an area of 236 square meters pursuant to a written agreement dated 24.2.2000.

2. The term of lease was 75 years from 1st January 2000 at an annual rent of $85.00.

3. That said lease is subject to survey as per requirement of Native Land Board (Leases and Licenses) Regulations and all other conditions stipulated in the agreement.

4. On the said lease the Plaintiff has erected a wood and iron dwelling house built on wooden posts.

5. Subsequently the defendant began to carry out substantial development and subdivision works on the Native land known as Sakoca Heights which included Lot 191.

6. On or about March 2004 the servants and/or agents of the Defendant entered into the land surrounding the Plaintiff's lease and have been doing grading excavating digging and other forms of development.

7. The Contractors developed the land surrounding the lease belonging to the Plaintiff and as a result all the land surrounding the Plaintiff's Lease has been graded.

8. The Defendant had entered into a contract with his contractors to carry out the sub-division works. The contractor was acting as the servant and/or agent of the Defendant at all material times.

9. By a letter dated 17th June 2004 the Plaintiff's Solicitors wrote to the Defendant outlining the damages suffered by the Plaintiff but the Defendant has failed to reply to the said letter.

10. That the Plaintiff paid the land rent to the Defendant annually and the same is not in arrears.

11. The Defendant has issued a Notice to vacate the land by a letter dated 4th December 2005.

12. As an interim measure in order to improve the situation regarding the land leased by the Plaintiff, the Plaintiff and the Defendant entered into a interim terms of settlement whereby the Plaintiff agreed to shift his house to the adjoining land so that the land could be developed.

13. That it was ordered by Judge on 10th July 2007 that the Plaintiff was to vacate the property by 31 August 2007 and return to it when the development work is completed by the Defendant but no later than 30th November 2007.

14. As per Order the Plaintiff vacated the property on or about in August 2007 and rented premises beside his house and paid a monthly rent of $250.00."

At the commencement of the hearing Counsel for the Plaintiff informed the Court that the Plaintiff's claim is for damages for the period March 2004 to 31 August 2007. There was no claim pleaded for special damages. The letter dated 17 June 2004 which is referred to in paragraph 6 of the Statement of Claim and in paragraph 9 of the agreed facts complains about (1) excavating works causing loss of fruit trees and prayer ground (2) excavating works have resulted in flooding around the residence and (3) excavating works have denied the Plaintiff access to his property by motor car.

There are two claims by the Plaintiff. First he alleges he has suffered loss and damage as a result of the excavation works undertaken by the servants and agents of the Defendant on land adjoining his land. This claim is made in paragraphs 4 and 5 of the amended Statement of Claim and is in effect a claim in the tort of nuisance.

The second claim is that the Defendant has breached the agreement by engaging in conduct through its servants and agents that has deprived the Plaintiff of peaceful occupation of the leased land. This claim is made in paragraphs 7 and 8 of the Amended Statement of Claim.

In so far as the Plaintiff's occupation of Lot 191 is concerned I am satisfied that by letter dated 13 September 1999 (ex 2) the Defendant offered a lease of lot 191 being an area of 236 square metres (236m2) to the Plaintiff on the terms and conditions specified in the letter. To accept the offer the Plaintiff was required to attend at the Defendant's Suva office within six weeks and pay the total of $3,766.20 as payment for fees and rent.

I accept the Plaintiff's evidence that the full amount was paid within the time specified. As a result, the parties signed the document that has the title Agreement for Lease. Attached to the agreement was a diagram showing Lot 191 with an area of 236m2.

There are a number of clauses in the agreement that are relevant to the present proceedings. Clause 3 provides that upon payment of the rent and compliance with the covenants contained in the agreement the Plaintiff may peacefully hold and enjoy the land during the said term without any interruption by the lessor.

On page 4 of the agreement there is a special condition which states:

"(a) Upon completion of the sub-division you will be surcharged the development cost of this lot."

At the end of the standard clauses, there is a clause B which provides:

"The lessee hereby also agrees with the lessor as a condition of this agreement that:

1. If within three months of being required so to do by notice in writing served on him by the lessor he fails to:

(i) engage the services of a surveyor registered under the Surveyors Act to carry out a survey of the land agreed to the leased and to prepare a survey plan in accordance with the Regulations made under that Act;

(ii) produce to the lessor evidence satisfactory to the lessor that the services of such a surveyor have been so engaged by him;

(iii) or refuses to execute the lease he has hereby agreed to take; then this agreement shall cease to have effect whereupon the provisions of Regulations 12 (4) shall apply."

There are two points that emerge from this clause. First, there was no evidence before the Court that the Defendant had at any stage issued a notice in writing requiring the Plaintiff to engage the services of a registered surveyor. This means that at all times material the agreement for lease remained in effect as a valid and binding agreement. Secondly, it is apparent that when a lot of native land being leased to a lessee has not been surveyed, there is a two stage process. The first stage being to enter into an agreement for lease. This agreement makes provision amongst other things, for the rights and obligations of the parties in relation to the survey. Secondly, only when the survey has been completed is the formal lease executed.

It is at this stage appropriate to examine Regulation 12 of the Regulations. Regulation 12 states:

"12. –(1) Where the Board has approved that grant of a lease of native land to any person subject to this regulation, the Board shall cause to be served on that person for execution by him an agreement for the lease of that land, in duplicate, together with a notice in writing stating that the Board has approved the grant of the lease subject to this regulation and requiring that person, before the date specified in the notice in that behalf-

(a) to execute both copies of the agreement and to return one copy thereof to the Board, duly executed; and

(b) to pay to the Board all monies due and payable by that person on or before that date under and in respect of the agreement, whether by way of premium, rent, fees, stamp duty or otherwise.

(2) No tenancy of native land shall be taken to subsist by virtue of any notice served in pursuance of paragraph (1) unless and until all the requirements of the notice as are mentioned in paragraphs (a) and (b) of that paragraph have been complied with, notwithstanding that any person has entered into possession of that land, with or without the consent of the Board, and notwithstanding that any rent shall have been received by the Board in respect of that land.

(3) An agreement for a lease of native land served on any person in pursuance of paragraph (1) shall set out in full the terms, conditions and covenants subject to which the land is to be demised and shall contain-

(a) a description of the land, whether by reference to a plan or otherwise;

(b) a condition to the effect that if that person shall not within three months of being required to do so by notice in writing served on him by the Board-

(i) engage the services of a surveyor registered under the Surveyors Act to carry out a survey of that land and to prepare a survey plan in accordance with the regulations made under that Act; and

(ii) produce to the Board evidence satisfactory to the Board that the services of such a surveyor have been so engaged by him; the agreement shall cease to have effect; and

(c) a condition to the effect that if that person fails or refuses to execute the lease which he has agreed to take pursuant to the agreement within three months of being required to do so by notice in writing served on him by the Board, the agreement shall cease to have effect.

(4) Without prejudice to any right of action or other remedy which the Board may have against any person on whom a notice has been served in pursuance of paragraph 1 in respect of any native land, where that person has failed or refused to comply with all the requirements of the notice as are mentioned in sub-paragraphs (a) and (b) of that paragraph or has failed to comply with any of the conditions of the related agreement for the lease of that land as are mentioned in sub-paragraphs (b) and (c) of paragraph (3), then-

(a) if that person or any other person claiming through him has entered into possession of that land, the Board may re-enter into possession, and that person or that other person, as the case may be, shall be liable to pay compensation to the Board in respect of any loss suffered by the Board arising out of the possession of the land by him and in respect of any damage caused by his act or default or the act or default of his servants or agents in connection with such possession; and

(b) any monies paid to the Board by that person or any other person claiming through him in respect of that land by way of rent, premium, fees, stamp duty or otherwise shall be forfeited."

It will be noted that Regulation 12(3) is in similar terms to clause B appearing in the agreement. The Defendant has a right to re-enter and take possession of leased land in the event that a lessee has failed to comply with the requirements set out in Regulations 12(1) and 12(3) and to claim compensation for loss suffered as a result of any breach.

Finally, Regulation 15 provides a right to the Defendant to resume possession of demised land in certain circumstances. The evidence before the Court indicated that there did not appear to be any dispute between the parties until the Defendant contemplated development works around the Plaintiff's leased land.

In his evidence the Plaintiff stated that he received a letter dated 4 December 2003 from the Defendant. The letter was addressed to the Plaintiff and stated:

"Notice of Unlawful Occupation Description of Land: Sakoca subdivision Stage 1 Lot 11.

A recent inspection of the above land as outlined in red in the attached plan/photo, reveals that you are in unlawful occupation of part thereof and that you hold no title or consent from the Native Land Trust Board to be in occupation.

Any consent to occupy you may have from the Native Owners is null and void as only the Native Land Trust Board has the legal power to deal with native land.

We give you until the 31st December 2003 to vacate the land and remove any buildings you may have erected thereon. If you remain in occupation of the land after 31st December 2003, legal action will be taken against you for the recovery of possession and you will be required to pay the court costs and fees thereby incurred."

The letter was signed above the signature block of M. Benuci, Manager (Central/Eastern).

The attached plan showed lot 11 as having an area of 631 square meters. On the copy that was tendered in evidence, there were no markings in red. On the same plan Lot 191 was marked as having an area of 806 square metres.

In his evidence the Plaintiff stated that he was confused by the letter. He was occupying the same lot as he had always occupied since first moving on to the land and building his home even before he signed the agreement. The Defendant knew that the Plaintiff had been in occupation since at least 1999 and on which lot he had build his house and continued to occupy as a result of the agreement. He had not moved from Lot 191 as shown on the plan that was attached to the agreement that he had signed in 2000. There is one other matter. The Plaintiff stated in his evidence that this letter was the first communication with the Defendant since signing the agreement in 2000.

The Plaintiff stated that following receipt of the letter he went to see a lawyer, a Mr Niko Nawaikula. It would appear that his lawyer failed to clarify the matter for the Plaintiff. In any event the Plaintiff did not remove his house nor vacate the land. Then in early 2004 the Defendant's servants and/or agents commenced the excavation works. The notice in the letter dated 4 December 2003 did not appear to be a notice under Regulation 12(4) nor a notice given under Regulation 15 (resumption of possession).

That the excavation works had an adverse effect on the Plaintiff's leased land is evidenced by a letter dated 7 October 2004 (ex 3) from Suva Rural Local Authority to the Defendant. This letter stated:

"Re: Complaint – Mr Rakesh Kumar,

Lot 191 Sakoca Sub-division

Reference is made to our conversation in regards to the above.

The complainant's house is now being surrounded by the sub-division leveling works. As a result, waste and surface water force to accumulate on Mr Rakesh's compound and it is a health hazard to his family.

Public Health nuisance arising requires immediate abatement as per section 54, 57(1) 57(4) of the Public Health Act Cap 111.

You are hereby instructed to take immediate action to remove the said accumulation of waste/storm water from Mr Rakesh Kumar's residence. Failure on your part to carry out the above works will prompt us to take legal action without further notice."

The Plaintiff put into evidence three photographs showing the accumulated water around his house and part of the excavation works (ex 12-14). The Plaintiff stated that the photographs were taken by him in 2004 after he had lodged his complaint with the Rural Local Authority.

The Plaintiff stated that the water accumulated after rainy weather. Although he purchased a pump about six months after taking the photographs, he was never able to get rid of all the water.

By two documents dated 3 March 2005 the Plaintiff was offered a lease on what was described as a new lot reference as Lot 14 SO 5030 for a term of 99 years from 1 January 2005 at an annual rent of $350.00 to be reassessed every five years. It was for residential purposes with an area of 701 square metres. To accept the offer the Plaintiff was required to pay $12,281.01 within eight weeks of 3 March 2005. It would appear that the Plaintiff did not pay any money within eight weeks and as a result the offer lapsed. The Plaintiff remained in occupation of what was initially referred to as Lot 191 (236m2) under a still valid and binding agreement for lease.

It should be noted that in one of the letters dated 3 March 2005, from the Defendant to the Plaintiff the following appears:

"_ _ _ we have now completed the survey and development requirements of the sub-division in accordance with the Director of Town & Country Planning approvals."

This would seem to support the Plaintiff's contention that he had never been served with any written notice to engage a surveyor pursuant to the agreement and regulation 12.

In August 2007 the Plaintiff dismantled his house, stored the material on lot 192 and moved into a house located on lot 192 for which he began to pay rent. This occurred as a result of an order made by this Court finalizing interlocutory proceedings commenced by the Plaintiff. Under the Order the Plaintiff was required to vacate the property by 31 August 2007. There were other matters in the Order that are not relevant to the Plaintiff's claim in these proceedings.

The Defendant's evidence was given by Salanieta Victor who has been employed by the Defendant for 18 years and currently holds the position of estate assistant 1. Her role in the development at Sakoca was selling leases especially to those who had previously occupied the land as squatters.

The witness referred to the special condition clause in the agreement. In my judgment this clause means no more than that the Plaintiff has agreed that he will pay the development cost of lot 191 when the subdivision has been completed. It does not mean that he must accept a variation to the agreement and it does not mean that he must accept the interruption to his peaceful occupation of the leased land nor endure the inconvenience that was associated with the constant presence of stagnant water due to the excavation works undertaken by the Defendant without any prior notice or warning.

I do not accept the evidence given by the Defendant's witness that prior to the execution of the agreement the Plaintiff was advised on the need to obtain a surveyor for the purpose of complying with clause B of the agreement. There was no evidence before the Court as to how that advice was given, by whom or when it was given.

I have concluded that, as the Plaintiff had not breached either Regulation 12(1) or 12(3), there were no basis for the Defendant to exercise any right under Regulation 12(4).

Even if the development of the lot was a condition to which the Plaintiff had agreed to, he was still entitled to notice, consultation and time before the excavation works commenced. If the Defendant needed the Plaintiff to make alternative temporary arrangements by moving elsewhere, proper information and notice should have been provided. By telling the Plaintiff that he was in illegal occupation of the land was neither correct nor a reasonable approach. To develop each lot was not an absolute right. Development works on each lot should have been undertaken in a manner that did not interfere with the Plaintiff's peaceful occupation of the leased land. The Defendant's attitude to the Plaintiff's lack of experience and its method of implementing development works were both unreasonable. The Defendant disregarded the Plaintiff's rights under the agreement and was, as a result, in breach of the agreement.

I do not accept the evidence given by the Defendant's witness that when she delivered to the Plaintiff the correspondence dated 3 March 2005 she explained the contents of the letters to him. That matter was not put to the Plaintiff in cross-examination and in my view the evidence should be regarded as a recent invention made in response to the evidence given by the Plaintiff. I also note that apart from this encounter the witness had no other direct contact with the Plaintiff.

The witness acknowledged that although requested to do so, the Plaintiff did not accept the offer to relocate to another lot. He did not accept any subsequent offer after he executed the agreement in 2000.

In summary I find that the Plaintiff executed an agreement in 2000. He had accepted an offer to lease lot 191 (236m2) and the agreement for lease formalized the arrangement. I find that he was never served with a notice in writing to engage a registered surveyor. The excavation works were commenced on lots adjoining the Plaintiff's lot without consultation or notice. The excavation works caused damage and inconvenience in the form of stagnant water accumulating around the Plaintiff's house on lot 191. The excavation works were performed by the servants and/or agents of the Defendant. In arranging for the works to be performed the Defendant was responsible for the presence of the water that interfered with the Plaintiff's peaceful enjoyment which was an entitlement under the agreement. I also find that the agreement executed in 2000 was never at any stage varied nor terminated. It remained at all times the only valid and binding agreement between the parties.

I am satisfied that as a result of the excavation works the Plaintiff has suffered inconvenience, anxiety and distress caused by the presence of the water, by the threat of damage to his home and by the threat of harm to the health of himself and his family. There was however no evidence of actual damage to the home in the period March 2004 to August 2007. Nor was there any evidence as to any physical health consequences arising from the presence of the accumulated water on the lot.

In the written submissions filed by the Plaintiff it is submitted that the facts proved by the evidence establish a claim in nuisance, trespass and breach of the covenant for peaceful occupation.

At the outset I have concluded, although the evidence from the Plaintiff on this point was not clear, that trespass has not been established. Trespass is a direct entry on the land occupied by or in the possession of another. It is the immediate act of direct entry on to that land which constitutes the wrong. There was no evidence of direct entry onto the lot occupied by the Defendant in a manner that might have amounted to trespass.

As for nuisance, it is necessary to determine whether the agreed facts or the evidence established the existence of a private nuisance and if so, what, if any, damages are recoverable. A private nuisance is caused by a person doing, on his land, something which he is lawfully entitled to do but the consequences of which extend to the land occupied by his neighbor. In Clerk and Lindsell on Torts (19th Edition 2006) at page 1165 it is noted that private nuisance may occur in three different circumstances:

"(1) by causing an encroachment on the neighbours land when it closely resembles trespass; (2) by causing physical damage to the neighbour's land or building or works or vegetation upon it; or (3) by unduly interfering with the neghbour in the comfortable and convenient enjoyment of his land."

There was no evidence before the Court of any encroachment onto the Plaintiff's land of anything directly emanating from the adjoining land. There was however evidence that established what is referred to as the second and third kinds of nuisance. There was evidence given by the Plaintiff that he feared that the wooden posts on which his house was built would be affected by the permanent presence of stagnant water around the house. There was also evidence that some fruit trees had been damaged. In respect of the third kind of nuisance there was evidence that between April 2004 and August 2007 the Plaintiff was greatly inconvenienced by the presence of the stagnant water that surrounded his house most of the time. This affected his comfortable and convenient enjoyment of the land. His family's discomfort also became his discomfort.

That, however, is not the end of the matter. In relation to the second kind of nuisance, where it is alleged that the act or omission of the Defendant has caused physical damage, actual, not merely prospective damage is necessary to found an action in nuisance (Sedleigh-Denfield –v- O'Callaghan and Others [1940] UKHL 2; [1940] AC 880). Therefore until the Plaintiff had suffered damage, i.e. actual loss in a physical sense, to his property, the presence of the water represented only the potential to be a nuisance. In this case, I took the Plaintiff's evidence to go no further than to be that he feared that the water would cause damage to his house. There was no evidence as to any actual damage to the house, let alone the extent and necessary repairs. There was evidence of damage to fruit trees. However there were no particulars pleaded and no details given in evidence. I am therefore not satisfied that the Plaintiff has established a claim under this kind of nuisance.

However where the nuisance consists of interference with the peaceful, convenient and comfortable occupation of the land, no actual physical loss or injury to health need be proved. The damage suffered by the Plaintiff in this kind of nuisance consists in the annoyance and discomfort caused to the Plaintiff as occupier of the land upon which the escaping water has come to rest. I am therefore satisfied that the Plaintiff has established his claim for nuisance of this kind.

What then is the compensation to which the Plaintiff is entitled? In the case of a nuisance involving interference with the convenient comfortable enjoyment and occupation of the demised land, this Court must place a value on an intangible loss which cannot be accurately assessed by reference to any formula. This, however, does not mean that damages cannot be awarded. Some guidance on the assessment of damages in a nuisance action such as the present can be found in the House of Lords decision in Hunter and Others –v- Canary Wharf Ltd [1997] AC 655. In this kind of nuisance the task of the Court is to determine the loss of amenity value so long as the nuisance lasts. Lord Hoffman in his speech in the Hunter appeal (supra) observed at page 706:

"In the case of nuisance "productive of sensible personal discomfort" the action is not for causing discomfort to the person but, as in the case of the first category, for causing injury to the land. True it is that the land has not suffered "sensible" injury, but its utility has been diminished by the existence of the nuisance. It is for an unlawful threat to the utility of his land that the _ _ _ occupier is entitled to an injunction and it is for the diminution in such utility that he is entitled to compensation (emphasis added). _ _ _ It seems to me that the value of the right to occupy a house which smells of pigs must be less than the value of the occupation of an equivalent house which does not _ _ _ But the owner or occupier is entitled to compensation for the diminution in the amenity value of the property during the period for when the nuisance persisted."

Similarly, I should think that the value of the right to occupy leased land on which is accumulated stagnant water for long periods of time must be less than the value of the occupation of equivalent land on which water does not accumulate. It seems to me that the reference to the amenity value is somehow to be determined by reference to the rent paid by the occupier. This is because the result of the nuisance is that the occupier is paying rent for the land the amenity value of which is less during the life of the nuisance. Capital value is not a relevant issue in this case. However the amount of rent is minimal and the amount of compensation would be inconsequential. In the same case Lord Hoffman expressly disagreed with the proposition that damages in an action for nuisance should be fixed by analogy with damages for loss of amenity in an action for personal injury.

In this case the rent payable was $85.00 per annum and the premium for the 75 years lease was $3000.00. The premium paid was equivalent to $40.00 per year for 75 years. The compensation that the Plaintiff could reasonably expect under Lord Hoffman's analysis for about 3½ years would be nominal and perhaps no more than $150.00.

The Plaintiff has claimed damages for breach of covenant for peaceful occupation. For the reasons already stated I am satisfied that the Defendant has breached that covenant for peaceful occupation on an on-going basis for the period April 2004 to 31 August 2007. I am satisfied that the excavation works carried out on adjoining lots at the direction of the Defendant caused water to flow onto the Plaintiff's land. The amount of water was such that it could not be effectively drained. It was always present and at times became stagnant.

As a result it caused physical interference with the Plaintiff's peaceful occupation of the demised premises. I am also satisfied that this consequence, if not intended by the Defendant, was foreseeable and ought to have been foreseen by the Defendant.

In my judgment the Plaintiff is entitled to damages for breach by the Defendant of the covenant for what is termed as peaceful occupation. The measure of damages is determined by the loss resulting from the breach. In this case the Plaintiff has not particularized any direct loss as a result of the breach. He does however claim general damages. Since an action for breach of the covenant is an action in contract, a tenant may be compensated in damages for any mental distress suffered as a result of the breach. In McCall –v- Abelesy [1976] QB 585 Lord Denning MR at page 594 noted:

"This covenant is not confined to direct physical interference by the landlord. It extends to any conduct of the landlord or his agents which interferes with the tenant's freedom of action in exercising his rights as tenant. _ _ _. It is now settled that the court can give damages for the mental upset and distress caused by the defendant's conduct in breach of contract."

In my judgment the Plaintiff can recover damages for his own inconvenience and also for the mental distress suffered by himself and his family since their distress becomes his distress. These damages being for breach of contract. Under the circumstances I consider a sum of $15,000.00 to be reasonable compensation by way of damages for the period April 2004 to 31 August 2007.

The Plaintiff seeks exemplary damages in the relief claimed in his amended Statement of Claim. So far as his action in nuisance (being an action in tort) is concerned, there is only a limited right to claim exemplary damages. For the purposes of the present case the Plaintiff has submitted that the Defendant was seeking to make a profit in the course of the conduct that created the nuisance. In my view this claim cannot succeed. There was no evidence before the court to support such a claim. In addition I am satisfied that although the nuisance occurred during the course of the Defendant's business it does not follow that the Defendant was seeking to make a profit. Even if the Defendant was carrying on business for profit, that by itself is not sufficient to justify an award of exemplary damages. There was no evidence that the Defendant was seeking to make a specific profit by undertaking the excavation works through its agents and/or servants. (Broadway Approvals Ltd and Another –v- Odham Press Ltd and Another (No.2) [1965] 1 WLR 805). There is no basis for awarding exemplary damages in respect of the claim in nuisance.

It is now well settled that exemplary damages may not be awarded in an action for breach of contract. In Kenny –v- Preen [1962] EWCA Civ 2; [1963] 1 QB 499, a case involving a claim by a lessee for damages for breach of the implied covenant of quiet enjoyment, it was held at page 513 by Pearson LJ that:

"As the claim was only in contract and not in tort, punitive or exemplary damages could not properly be awarded."

Finally, although substantial damages may in appropriate cases be awarded for inconvenience or loss of enjoyment where the inconvenience or loss was within the presumed contemplation of the parties as likely to result from a breach of contract, aggravated damages in the strict sense are not awarded in an action for breach of contract. To the extent that the law permits me to do so I have awarded an amount by way of general damages for the breach which may reasonably be considered to be substantial.

The Plaintiff has not pleaded a claim for interest and as a result there will be no award for pre-judgment interest. (See: Shankar –v- Naidu ABU 3/2001 delivered 18 October 2001). The Plaintiff is entitled to costs which I fix summarily in the sum of $1,800.00. There will be a stay of 28 days in respect of damages and costs.

I make the following orders:

1. The Defendant is to pay damages in the amount of $15,150.00 to the Plaintiff within 28 days.

2. The Defendant is to pay costs of $1,800.00 to the Plaintiff within 28 days.

W D Calanchini
JUDGE

8 February 2013
at Suva