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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS Civil Case No. 141 of 1997
SOLSPORTS LIMITED ALSON NIMELEA
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PACIFIC ARCHITECTS LIMITED Hourt of Solomon Islands
Before: Palmer J.
Civil Case No: 141 of 1997
Hearing: 29th July /span>
Judgement: 29th November 1999
C. Ashley for the Plaintiffs
Sol-Law for the Defendant
PALMER J.: The first Plaintiff, Solsports Limited, is the registered owner of the fixed-term estate in Parcel Number 191-020-10 (also identified as Lot 113) situated at Point Cruz. The second Plaintiff, Nelson Nimele, is the registered owner of the fixed-term estate in Parcel Number 191-020-27 (also identified as Lot 1069) which is also situated at Point Cruz and abuts the Plaintiff’s land. A third block of land, Parcel Number 191-020-12 (also identified as Lot 11-5) abuts both the first and second Plaintiffs’ land. A clear lay-out of the position of those blocks of land is contained in Exhibit 18. Title to Lot 115 was formerly held by The Pharmacy Limited (hereinafter referred to as "TPL"). In or about December 1994, a contract was entered into between TPL and Pacific Architects Limited (hereinafter referred to as "PAL") for the construction of what was then intended as a new pharmacy building. Subsequently it was sold to Home Finance Corporation of Solomon Islands (hereinafter referred to as "HFC"). The building is identified as the Home Finance Corporation Building (hereinafter referred to as "the HFB"). PAL was the supervising architect of the HFB; that is, not only did it drew the plans but was responsible in the supervision and construction of the building as well [see Exhibit 19 clauses 1(a) and (b)]. A copy of the architectural designs is marked Exhibit 17. Pursuant to the contract between TPL and PAL (hereinafter referred to as "the TPL Contract"), PAL took unhindered possession of the site with effect from 9 December 1994 [see Clause1(h)] to 8 December 1995, being date of completion of the building. The construction of the HFB included a first floor walk-way (hereinafter referred to as "the Overhang") which unfortunately on completion, encroached into the airspace of both Plaintiffs land. This is not in dispute.
The Plaintiffs' claims are for compensation against the Defendant for the echment of the Overhang into into the airspace over their respective areas of land. Mr. Ashley, counsel for both Plaintiffs argues it was the Defendant who was responsible from beginning to end, for the construction of the said Overhang and therefore liable to the Plaintiffs for that encroachment. Learned Counsel borrowed the definitions used in the Occupier's Liability Act 1957 (United Kingdom legislation but deemed part of the laws of Solomon Islands by virtue of Paragraph 9 to Schedule 3 of the Constitution), for the definition of the word "Occupier", and came to the conclusion that the Defendant was the Occupier at time of construction of the Overhang. It was therefore liable for the encroachment. It was obliged to comply with By-law 10(1) of the Honiara Town Council Building By-laws, which provided that a building of the type constructed by the Defendant should not cover more than 80% of the plot. In the alternative, the Plaintiffs argue the Defendant would be liable in any event by virtue of the fact as an independent contractor, it owed a duty to the Occupier to ensure the work done was that expected of a competent contractor in its field. The Plaintiffs relied on what the learned Author in Winfield and Jolowicz on Tort 14th Edition at pages 236 to 238 had said on this particular issue.
DEFENDANTS ARGUMENTS
efendants deny the definitions adopted by the Plaintiffs under the Occupiers Liabilitbility Act 1957 apply to the facts of this case, pointing out that the said Act only dealt with an occupiers liability to his visitors. They concede on the other hand, that an encroachment into the airspace of a plaintiff's land by a neighbouring building can found an action in trespass against the owner of the offending encroachment. The case of Kelsen v. Imperial Tobacco Co. of Great Britain and Northern Ireland) Ltd [1957] 2 QB 334 was cited as authority for this proposition. The Defendant sought to make a distinction between initial trespass and continuing trespass, arguing that whilst it does not concede it was liable for the continuing trespass, it conceded an action for the initial trespass would lie against it by the First Plaintiff. It denies however, any damages are due as no losses could possibly arise from that initial overhang. It also denies liability to Nimele for the initial trespass on the ground Nimele did not acquire any interest on the land till after construction of the Overhang had been completed and possession reverted to TPL.
THE ISSUE
The issue of law which arises for determination in this case is quite simple; whether there had been trespass and who is liable?
THE LAW
The statement of law on trespass to airspace can be found in moxtbooks on the law of tort tort including Winfield and Jolowicz on Tort 9th Edition pages 312 and 313; Tort. 4th Edition by C.D. Baker at page 54 and Law of Torts in the South Pacific by Stephen Offei, page 221 paragraph 15.6.4. All those texts made mention of Kelsen v. Imperial Tobacco Co. Ltd (1957) 2 QB 334 as the case authority on trespass into airspace. This was based on the usque ad coelum principle; that is, possession of land was said to extend to the air-space above the land. The case of Kelsen (ibid) involved the erection of a sign over the defendant’s property but which also overhung into the plaintiffs property. It was held a trespass had been committed and the defendant ordered to remove the sign. An earlier case from which the current position in law had been derived was the case of Gifford v. Dent [1926] W.N. 336 cited in Kelsen's Case (ibid). In that case a sign had been erected on a wall above the ground floor premises which had been demised to the plaintiff and projected some 4 feet 8 inches from the wall. It was held a trespass had been committed into the airspace of the plaintiff. The case of Lord Bernstein of Leigh v. Skyviews General Limited [197W?] QB 479 is also an important case because it seems to have set the limit of the height over which trespass may be considered by the courts as actionable. It was held an action for trespass would lie provided the intrusion was at such height it interfered with the ordinary use and enjoyment of the land (see also Anchor Brewhouse Developments v. Berkley House (Docklands Developments) Ltd [1987] 2 EGLR; Woollerton and Wilson Ltd v. Richard Costain Ltd [1970] 1 All ER 483; and Wandsworth Board of Works v. United Telephone Co ([1884] UKLawRpKQB 123; 1884) 13 QBD 904.).
THE OCCUPIERS LIABILITY ACT 1957
The use of the definitions in the Occupiers Liability Act 1957 by Counsel for the PlainPlaintiffs therefore are misconceived.
ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> PERSON RESPLE FOR THE INTRUSION
From the clear case authorities cited, it cannot be denied, and I accept thi been wisely conceded by by learned Counsel for the Defendant, that a trespass had occurred in respect of the Plaintiffs' lands. The facts speak for themselves (see Exhibit 18 for a diagram drawn to scale showing the extent of the intrusion). The HFB when constructed did not take into account the intrusion that would be caused by the Overhang into the Plaintiffs' abutting lands. The responsibility for that intrusion lie solely with the Architect Builder; PAL. Not only did PAL hold itself out as a competent builder but also as a competent architect in the drawing of original designs and site plan of the building, and in the supervision of the construction works. That it had failed to carry out its duty as a competent builder and architect supervising the construction of the building with regards to that intrusion is undeniable.
LIABILITY FOR THE TRESPASS
class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Defendant concedes the initial trs to both the Plaintiffs properties were caused by it. Judgment accordingly should be entered in favour of the First Plaintiff for that initial trespass with the question of whether any damages are payable to be subject to a further hearing. I appreciate the Defendant had sought to argue it was not possible for the Defendant to be liable to pay any damages as no loss had been proven. Unfortunately that is jumping the gun as the question of whether damages are payable was agreed at hearing of the question of liability to be deferred until after determination of the question of trespass had been established, and was to be a matter for further argument between the parties.
The Defendant howevenot be liable for the continuing trespass. Liability must lie with TPL and subs subsequently with HFC. I acknowledge the Defendant may have to indemnify TPL and subsequently HFC, but in this case where only the Defendant had been sued, this Court cannot make any orders against the Defendant for the trespass of TPL and HFC.
On the question whethe Defendant would be liable to Nimele for the initial trespass, that is dependependent on whether the property in Lot 1069 vested in Nimele at the time of commission of the trespass. Trespass against Nimele could not be committed by the Defendant if at the time of commission Nimele was not in possession of Lot 1069. Trespass is a wrongful interference with possession and therefore in the circumstances of this case, Nimele was not entitled to possession until title had passed (see the case of Townsview Properties Ltd et al v. Sun Construction and Equipment Co Ltd et al (1974) 56 DLR (3rd 330). The evidence before this Court is very clear; title to Lot 1069 did not pass until on or about 15 March 1996. This was well after possession of the HFB had reverted to TPL on or about 8 December 1995. No action against the Defendant accordingly could be sustained by Nimele for that initial trespass. The HFB was sold to HFC towards September/ October of 1996. Nimele's rights accordingly lie against TPL and subsequently HFC for the continuing trespass. TPL and HFC ultimately may be able to claim indemnity from the Defendant. In the current case TPL and HFC are not parties to this case and so no orders can be made against them.
ORDERS OF THE COURT: > 1. JUDGEMENT BE ENTE EDTERE IN FAVOUR OF THE FIRST PLAINTIFF FOR THE INITIAL TRESPASS. [The question whether damages are payable is to be dealt with as a separate issue. The Firaintid Defendant are to arrange ange with with RegisRegistrar of High Court for a suitable date for trial of this issue.]
2.  p; DSSMISS CLAIMCLAIM OF THE SECOND PLAINTIFF.
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lass="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> THE COURT
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