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Nieng v Boardman [2009] SBHC 7; HCSI-CC 88 of 2007 (20 March 2009)

HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 88 of 2007

BETWEEN:

CHRISTIAN NIENG
Plaintiff

AND:

DAVID BOARDMAN
1st Defendant

AND:

DAVID LILOMO
2nd Defendant

AND:

DOVE WINSTON SALE
3rd Defendant

(Mwanesalua, J.)

Hearing: 6 March 2009
Ruling: 20 March 2009

Mr A Radclyffe for the Plaintiff
Mr P Watts for Second and Third Defendants

JUDGMENT

Mwanesalua J:

The Plaintiff claims damages from the defendants for trespass to his land. He filed his action against the defendants in March 2007. On 2 August 2207 he discontinued his action against the first defendant, whilst he entered verdict and judgment against the second defendant on 13 August 2008 and the third defendant on 31 August 2007 in default of filing defence.

The plaintiff is the registered owner of the fixed term estate in parcel number 191-019-201 granted by the Commissioner of Lands for a period of 50 years from 1 March 1989 at an annual rental of $250.00, being purchased from the previous grantee for $9,000.00 on 25 March 2002. It is situated between parcel numbers 191-019-200 and 191-019-202 owned by the second and the third defendants respectively at Skyline Ridge in Honiara.

The plaintiff’s land is vacant residential property on which he intends to erect a dwelling house for his family and himself. However, he has been unable to fulfill that objective since acquiring title to the property due to the persistent trespass to it by the second and third defendants. His approaches to ask the defendants to vacate the property yield no positive results.

It is clear from the evidence of the plaintiff as corroborated by the documentary evidence from the City Council’s Senior Surveyor proved on the balance of probabilities, that the second and the third defendants have trespassed on the plaintiff’s land

This case was set for submissions for assessment of damages on 6 March 2009. Both defendants and their advocate were not in court, even though it was apparent from the court file on the case, that service of hearing notice was done. As a result, the court merely heard evidence from the plaintiff and submission from his advocate, Mr Radclyffe.

The issue before this court is to assess the amount of damages to be awarded to the plaintiff for the entire period during which the second and third defendants have used his land for their own purposes.

There was no evidence of injury to the land or diminution of its value, nor any specific loss of income. The principle relevant to the assessment of damages in trespass to land where no actual loss is proved by the plaintiff has been summarized by the Privy Council in Inverugie Investment Ltd –v- Hackett [1995]1 WLR 713. In that case their Lordships adopted the description "user principle" as given by Nicholls L,J. in his judgment in Stoke-On Trent City Council v W & J Wass Ltd [1988]1 WLR 1406. At p.718 their Lords 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 characterized as exclusively compensatory, or exclusively restitutionary; it combines elements of both".

Further, the Privy Council also referred to an earlier decision of Megaw L.J. in Swordheath Properties Ltd v Tabet [1979]1 WLR 285, from which their Lordships cited with approved the following passage:

"It appears to me to be clear, both as a matter of principle and authority, that in a case of this sort, the plaintiff, when he has established that the defendant has remained on as a trespasser in residential property, is entitled, without bringing evidence that he could or would have let the property to someone else in the absence of the trespassing defendant, to have as damages the value of the property as it would fairly be calculated; and in the absence of anything special in the particular case it would be the ordinary letting value of the property that would determine the amount of damages".

The trespass by the second defendant consists of the erection of his boundary fence and a building for a kitchen on the plaintiff’s land. On the other hand, the third defendant also built a house for a kitchen on the plaintiff’s property. These wrongful developments virtually impeded or prevented the plaintiff from constructing a dwelling house on his land.

The court is being urged by the plaintiff to use its discretion to consider a reasonable quantum of damages to be awarded to him. In discharging that function, the court took into account the facts that the defendants have used the land for their own purposes for 7 years; that the plaintiff had lost the use of the land for an equivalent period; that this residential property is situated in Honiara; that the plaintiff and the defendants are neighbouring landowners; that the plaintiff was silent on the letting value of his property; and that the user must pay principle applies in assessing the fair and reasonable quantum of damages.

Decision

In considering these facts, the court is of the opinion that a fair and reasonable letting value of the land would be $300.00 for per month. The total amount of damage to be awarded to the plaintiff for the 7 years period will be $27,200.00.

Orders of the Court:

1. Award damages for trespass at $27,200.00. $13,600.00 to be paid by the second defendant and the remaining $13,600.00 to be paid by the third defendant.
   
2. The costs of the plaintiff to be borne by the second and third defendants.
   

THE COURT