Thegna v Taro [2014] SBHC 108; HCSI-CC 296 of 2012 (6 August 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

SANDRA THEGNA
Claimant

And:

ETHEL TARO
1st Defendant

And:

TEIVI LAUIFI
2nd Defendant

Mr. W. Togamae for the Claimant.
Mr. A. Rose for the 1st Defendant.
Mr. N. Laurere for the 2nd Defendant.
Date of hearing: 1st July 2014.
Date of Judgment: 6 August 2014.

RULING

Apaniai, PJ:

Introduction.

1. On 15 April 2014, I delivered judgment holding that the 1st defendant had trespassed onto the claimant's land, Parcel No. 191-006-177 ("Lot 1098"), by erecting a two-bedroom house which went beyond her boundary ("Lot1846") into the claimant's Lot 1098. I further held that the 2nd defendant was negligent in relation to the boundary identification marks he placed inside Lot 1098 and that this had resulted in the encroachment by the 1st defendant's building into Lot 1098. I therefore ordered that the 2nd defendant contribute towards any damages to be awarded against the 1st defendant. The claimant now seeks assessment of damages.
   
2. The trespass occurred in or about October 2011 and continued until 15 April 2014 when judgment was delivered - a period of about 2 years and 7 months (31 months).
   
3. According to the evidence[1], the encroachment area was 27.164 square meters. However, immediately after judgment was delivered, that part of the house which protruded onto the claimant's land was dismantled and the holes made for the posts of the house were filled and covered up.
   
4. I do not think that the trespass was intentional. It was the result of the failure by the 2nd defendant to remove a temporary peg which he had placed on the boundary line of the claimant's land.
   

The law.

5. In my view, the damage should based on the "user principle" as stated by Nicholls L.J. in Stoke-on-trent City Council v W&J Wass Ltd[2] ("Stoke-on-trend") where he said:
   

"The plaintiff may not have suffered any actual loss by being deprived of the use of his property. But under the user principle he is entitled to recover a reasonable rent for the Wrongful use of his property by the trespasser. Similarly, the trespasser may not have derived any actual benefit from the use of the property. But under the user principle he is obliged to pay a reasonable rent for the use which he has enjoyed. The principle need not be characterised as exclusively compensatory, or exclusively restitutionary; it combines elements of both."

6. The "user principle" was also applied in CP Homes Ltd v Zhong Xing Investment (SI) Ltd[3]. In that case, the Respondent was the registered owner of a plot of land at Ranadi, Honiara ("Land"). The 1st Appellant, thinking that the Land was vacant, applied to the Commissioner of Lands for an estate in the Land. The Commissioner, realising that the Respondent was in arrears in regards to the Land, approved the 1st Appellant's application and then pursued forfeiture of the Land from the Respondent on the basis of the non-payment of rent. Unfortunately, the forfeiture process was flawed, hence, the Land could not be forfeited thereby resulting in the Respondent remaining as the registered owner of the Land. Despite the flaw in the forfeiture process, the Commissioner offered the Land to the 1st Appellant and granted the 1st Appellant a fix term estate for 50 years commencing on 16 September 1996. The 1st Appellant went into possession and allowed the 2nd Appellant to move its machines onto the Land. Apart from allowing the 2nd Appellant to enter onto the Land, the 1st Appellant had also erected a fence around the Land. In an action for trespass, the court found that, apart from fencing the Land by the 1st Appellant and the use of the Land by the 2nd Appellant to store its machines, no damage was caused to the Land. In applying the user principle established in Stoke-on-trend, the court awarded damages in favour of the Respondent in the sum of $18,000.00 in respect of the 13 months that the 1st and 2nd Appellants had been on the Land.
   

Assessment reports.

7. In the present case, the damage should be limited to the use of the encroachment area of 27.164 square meters during the 31 months mentioned in paragraph 2 above.
   
8. What then is the reasonable rent for the use of the 27.164 square meters during the 31 months?
   
9. Two assessment reports have been tendered by the claimant and the 1st defendant in their effort to determine the quantum of damages. Both reports appear to support the application of the "user principle".
   
10. In the claimant's case, she relies on a report prepared by Balasido Boeau[4], a land and property valuer, who carried out an inspection of the properties concerned on 28 April 2014 and puts the rental value of the encroachment area at $19,000.00. The method applied in reaching this figure is the Rental Assessment Method which is the rent per month for the encroachment area. The $19,000.00 was arrived at after taking into account all relevant factors such as the physical features and location of the land, the services and amenities available to the land and the actual damage caused to the land. The report says that the damage caused to the land is limited to manual excavation for the posts at the rear of the building. The report did not say how much of the area was damaged but merely stated that half of the 1st defendant's building lies within the claimant's land. He puts the trespass period to be from 1 October 2011 to 28 April 2014 – a total of 940. He assessed the rental for the area of encroachment at $20.00 per month and came to $18,800.00 rounded up to $19,000.00. He says the damages payable by the 1st defendant should therefore be $19,000.00.
    
11. In support of her case, the 1st defendant relies on a report ("2014 Report") prepared by David Gapirongo[5], also a land and property valuer, who inspected the property on 26 and 27 May 2014. There is an initial report ("2012 Report") produced by Mr. Gapirongo on 24 July 2012. The 2012 Report was produced before trial and has put the damage payable at $3,000.00. It seems to me that the 2012 Report has been superceded by 2014 report therefore I will take the 2014 Report as the proper report for the purposes of this application.
    
12. In the 2014 report, Mr. Gapirongo has also applied the Rental Assessment Method. He has put the area of encroachment at 27.164 square meters and the value of that area at $250.00 per square meter. According to his calculations, the rental value per day for the encroached area is $8.52 and that the period of encroachment is 973 days. This brings the total damages payable for the encroachment area for the encroachment period of 973 days to $8,292.61 rounded up to $8,000.00. He says the damages payable by the 1st defendant should therefore be $8,000.00.
    
13. There is a very big difference between the total amount of damages suggested in the report by Mr. Boeau ($19,000.00) and that of Mr. Gapirongo ($8,000.00). I must admit that there are certain points in those two reports that are not very clear and needed clarification. Unfortunately, the two gentlemen were not called to be examined on their sworn statements.
    
14. For instance, in the Gapirongo report, the total area of encroachment is said to 27.164 square meters. The Gapirongo report has calculated the total damages of $8,000.00 by determining the total area of encroachment (27.164 square meters) and multiplying it by $250.00 (which appears to be the value per square meter of the encroachment area) and coming to what he called the "Land Value" of $5,432.00 (which he rounded up to $5,000.00). However, taking his figures, my calculation is that the total encroachment area of 27.164 square meters multiplied by $250.00 per square meter gives a Land Value of $6,791.00 (not $5,432.00). It is also not clear why the Land Value of $5,432.00 was rounded down to $5,000.00 when it could have been rounded up to the nearest hundred dollars, which is $5,500.00. It is also not clear why 45% of the "Land Value" was taken as the yearly profit rental and why 264 days (as opposed to 365 days) was chosen as the number of days per year for the calculation of the total compensation.
    
15. As for the Boeau report, there is no mention of the total area of encroachment. It is also not clear how the $20.00 rental per month for the encroachment area was arrived at. If the $20.00 was taken as rental value for the whole encroached area (which appears to be the case), and assuming that the Gapirongo's figure of 27.164 square meters is the total area of encroachment, then it would mean that the value per square meter of the encroached area is $$1.36 which is way below Gapirongo's valuation figure of $250.00 per square meter.
    

Amount of damages.

16. Despite the deficiencies in the Boeau report, I am satisfied that the Boeau report is more comprehensible than the Gapirongo report. It follows that I accept the contents of the Boeau report and hold that the amount of damages payable by the 1st defendant in respect of the trespass into the claimant's land is $19,000.00.
    

Contribution by the 2nd defendant.

17. The remaining issue is the extent to which the 2nd defendant, Mr. Teivi Lauifi, should contribute towards the $19,000.00 awarded against the 1st defendant. Counsel for Mr. Lauifi has suggested that his client's contribution should be 10% of the damages incurred up to the date (5 October 2011) when the 1st defendant was notified by the claimant that she (1st defendant) was trespassing into her (claimant's) land.
    
18. I do not agree with that submission. The trespass was a continuing trespass and was partly the result of the 2nd defendant's negligence not removing the peg marked M2 which he had placed inside Lot 1098 and which had consequently led to the construction by the defendant of part of her building inside Lot 1098. I am satisfied that it is just and equitable that the 2nd defendant should contribute half of the damages of $19,000.00 awarded against the 1st defendant.
    

Orders.

19. The orders of the court are:-
    

[1] The 1st defendant shall pay damages to the claimant in the sum of $19,000.00.

[2] The 2nd defendant shall contribute the sum of $9,500.00 towards the said $19,000.00 awarded against the 1st defendant.

[3] The costs of this application shall be paid jointly by the 1st and 2nd defendants to be assessed if not agreed.

THE COURT

_________________________
James Apaniai
Puisne Judge.

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^[1] Sworn statement by David Gapirongo filed 28 March 2014.
^[2] [1988] 1 WLR 1406.
^[3] [1998] SBCA 4; CA-CAC 5 of 1997 (27 February 1998).
^[4] See sworn statement by Balasido Boeau filed on 14 May 2014.
^[5] See sworn statement by David Gapirongo filed on 28 March 2014.