Tea Brokers (Central Africa) Ltd v Bhagat (Civil Cause 39 of 1993) [1994] MWHCCiv 35 (15 November 1994)

•,r- - IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO.39 OF 1993 BETWEEN TEA BROKERS (CENTRAL AFRICA) LTD . . . . . . . . . PLAINTIFF AND R. M. BHAGAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DEFENDANT CORAM: MWAUNGULU, AG. J. Kasambala, Counsel for the Plaintiff Msiska, Counsel for the Defendant Mwaungulu, Ag. J. JUDGMENT In this action the plaintiffs, Tea Brokers (Central Africa) Limited , are s eeking the common law reme dy for damages and the equitable remedy of an injunction for tre spass to their piece of land by the de fe ndant, Mr. Bhagat. On the general issue the plaint iff s should s ucceed. There is so much in the evidence to show that the defendant did unjustifi ably interfere with the possess ion o f the land of the plaintiffs. There is, the refore, justification f o r the two remedies at comnon law and equi ty which the plaintiffs have prayed for in this court. The plaintiffs and the defendant are on contiguous pieces of land, Plot No . LC 18 and Plot No . LC 15, respectively, along Livingstone Avenue in the commercial City of Blantyre . The plai ntiff s piece of land is freehold . At the time of the action, The pl aintiffs it was owned and occupied by the plaintiffs. car r y out the business of packing and selling tea . It is not known from the ev ide nc e and the pleadings what the def e ndant does The problems in this case have arisen on his plot of land. becaus e o f construction and developments on Plot No. LC 1 5, owned by the d e fendant. The pl a intiff s are so meticulous, exquisite and soigne about the way they k eep their premises. Visiting the site, even in Octobe r, when it i s v e ry dry, you are met with g re e n tur f and a ,., IG ... Cou..,..-7 I LIBRA. R\ - - . I Th e y to b e f low e rs. a lso see m th e borders that dema r cate q ui te vista of b eauti f ul particular abo ut th e ir fr eehold property . Th e y have vi rtu a lly f e n ce d the two sides on thei r plot bordering o the r pl o t s . They h a v e , however, l e ft open that part of the plo t wh ich a dj o ins Livingstone Avenu e . Mr. Gunton, the Managing Direct or, informed the court that the fencing is n ot of recent i mp or t ; it was part of th e protection of their property. The plai n t if f s, howeve r , kept unfenced that side of the plot t h at borders with t he defendant's plot. They kept a bougainvil lea h edge fo r quit e some time. When the decision was made to have the proper ty fenced, this side of th e fence t hat borders with t h e t h e defendant ' s p l o t was not fenced . bougai n v illea hedge, in its immaculate c ondition, provided the beauty a nd th e secur i ty which the company dearly wanted to mainta i n . The explanation is tha t Some time in 1991, however , the defendant had ambitious and expe n s i ve plans to develop his p1ece of land. To that end a huge fo u r - sto rey building, apparent l y for commercial purposes, is It is an imposing building on u n der con s truction on his plot. t h is s tr ee t. The It looks like Pl ot No . LC 15 is not big. b u i l di n g t here has been built i n s u ch a way that it occupies as much s pace as is possible on the plot . The northern wall on the s ide where Pl o t No. LC 15 borders wit h p l ot No. LC 18 is v ery very c l os e to the boundary with P l ot No . LC 18 . t h e h e dge and near disappearance of Th e action in the present case is in relation to tresp ass o n Plo t No. LC 18 occasioned by the construction and development works to this building on Plot No. LC 15 . The allegation from the plead ings i s that dirt, rubble and bricks have been lef t by workers a t Pl o t No. LC 15 on Pl ot No. LC 18. The plaintiff s allege t h a t th is depositing of r u bble and dirt on their plot h as bee n so continuo us and intense in the period of construction and deve l opme nt on Plot No. LC 15 that it has resulted in destructi on of the beacons whi ch de marcate the t wo adja c ent plots of land. Consequently the p l ain ti ffs have had t o ca ll s urveyors to rediscover the bea con s The plaintiffs h ave and kee p the boundary v i sible and c l e ar . also h ad the bougainvill e a h e dge destroyed by the developments on Plot No. LC 15. The pla inti f fs furth e r alleged tha t o n s e veral o ccasions t h e iefendant ' s a t te nti o n h a d b ee n brought to the probl e ms on the _t)lot. Wh i l e once or twi c e there has b e en a r e sponse from t h e defendant , o n sev e ral o c casions, their requests were spurned. the d e f e nd a nts h ave They a l so sought a c o urt injuncti o n whi c h the f or d a mag e s Thi s actio n , also ign ored . i s trespass an d f rom the r es t ra in for an o rde r continuing t h e tre s pa ss o n th e land. some horticulturist to reinstate to cont a ct th e r efore , d efe nda nt f o r to The defe nda nt , h o we ver, d e ni e s that h e d e posit e d d e br is, rubble or bric k s o n th e plaintiff s plot . He a l so d e ni es t hat t h e plaintiffs ga rd en a nd h edg e hav e be e n d a ma ged . If i t h a s been damaged , he a ll ege s, i t must have b ee n so b ef o re t h e constructi on works started on the ir pl o t. He, the refor e , asserts that the r e h as been no d a mage for which the plaintiffs should be comp en sated ; n e i t h e r is ther e any n ee d f o r the injunction prayed for . I n in my view, t hi s action, I am called upon to decide whethe r there was trespass and, if so, whether the plaintiffs are entitl ed to t he r e medies which they seek. On th e first question, the evidence before me clearly shows that the defendant did enter on the pl aintiffs' piece of property. The d e fendant, on oath, conceded tha t once or twice, when called upon by the plainti ffs, did remove the dirt that had accumulated on Plot No. LC 1 8. The defendant, in my view, was astute to minimise and downplay the frequency of his intru s ions into the plaintiffs' property . Given the amount of construction work that was going on on the plot, and the proximity of the building under construction to the plainti ffs' plot, I find it extremely difficult to think that there could o nly have been two forays on the plaintiffs' plot. I accept the plaintiffs contention that the incursions have been repeated quite often, if not, so reasonably often in the duration of the con struction and development works on Plot No. LC 15. injury lie for It mu st be appreciated that trespass is an unjustifi able interference with possession of land (Hegan v. Carolan (191 6) 2 TR. R 27) . An action for trespass is a common law action. As it was put by Lord Chief Justice Camden in Entick v. Carrington 2 Wils. 275, by the law of England every invasion on (1765) private property, however minute, is a trespass . An acti on in trespass will that right although no appreciab le damage has been caused (Warren v. Desplippes (1872) 33 UCR 59) (Ca nada) . Even if the incursions on Plot No. LC 18 are to believe, an action for as few as trespass will still lie. Although the plaintiffs did not plead about the prop s which the defendant plant ed on Plot No. LC 18, for construc tion works on the building, the defendant raise d the :~tter in hi s own evidence and went on to state that those props, '.~ich in law wquld b e sufficient trespass (Westripp v. Bowdock ('1939) 1 All , ,R. 279), are still necessary for the remain ing part of constr'. . 1W\t .•. • Jon works. The minuteness of the trespass will only go to det · - •ibine what amount of damages should be awarded and whether the c~jJ~fi ;p h ou ld gra~1t an injunction as the plaint iffs have prayed . t he defendant wants me to !~ dq~s not gainsay trespass . • ➔~1P I i I ' time the right It may now be trespass caused to decide whether the damag e pretended b y the defendant 's the plaintiffs. The def endant alleged that no damage was done at all by the activit ies going on o n their plot . Further it i s said that, if there was, the damage was prior to the development s and construction work began on his plot. I did visit the scene. Obviously the hedge on Plot No. LC 18 was haggard and irregu lar. In some cases, it was almost non-exis t e nt . The construction work has been going on for a number of years . Although there ha s been a resurgence in ' certain parts of the h e dge there is an indic ation that some damage, and indeed of a considerable nature, has been If the question i s whether this was prior to had to the h edge . the construction work going on on Plot No. LC 15, I am more comfortab l e wit h agreeing with the plaintiffs that the damage has been caused by the developments on Plot No. LC 15. There are reasons for it. Firs t , I have indicated that this was a major construction wo rk. It is not compl ete eve n though it sta rt ed in 1991. The bui lding has been built so close to the border with f.,t,r{he plain t if, :%;:Cc:onstru ct i o n tft,:E5i ve.n the sp' N(r\.;,;_=d l ,;. of the' tili:·.wi thout daif ''···• is :cm:. added ,\:' .-tihei'r surro •:· :· I(~ :•r.~:fi:}ne. _ E;f=p. •. the res. \;-f'tht' the :B"' -t/hl\::ih it i~ '-·: }he: court th' 'J: ~nt:e around j::,he< border ·•· ij ''he:i! r . securd.' £11.~b,;, __ ;_:ne_:_',_I_·_'..,_·i:;'_Pd. le:_ia· nb. t .· ____ :1e··_:_:__ _ _ 0 _. -'- .. _ ~ · ! · ; 5 rand was - n 1-:.i.:·: \--:i .. - ::_{})i}~t The • , ;plaintiffs r [)ifpr6riounced. ,, :_;_;~~\de fendant co ~{fffP '. fact, he :, eyeryone to ,.- ·>rn·;?\lanning wou . , . . :trnf. those beacon , .,,,,.:~ "<-~ misunderstan ). ,-'.,(;.'!t•f)i:tthe plaintiff: · ~ll!{ ~~:t~;y ~1~~11 -- -~ ~ i ::<·· J "'·. • \ ' t ... As I am speaking here, the major props for .·:,; are. right in; ,the . plaintiffs piece of prop erty. ~'db· 'e 'xists be"fw~ eri the boundary and the no rthern '.['\;;fipg; such f'.;ih~l'j or works would not have been ;t.igorous intfµsion into Plot No. LC 18 . There '<,'iu.f r' have :, i~~icated that the plaintiffs keep ,?~and pren'i{e.es'\. gi.·acefully and with a bit of +:½~f:_le prc;,gJ!~'.rn~_/ _in f indi1:g that the way th~y nEu:rpropertyu ipp1led to this hedge. If that is "'utfd not ha1:v'e> been in the chequered state in ''i;:J {~~e also /·-;fa't~d before that Mr. Gun ton told 'i;,}ie same t;{_me , as they were deciding to put a / prbperty ;':'}t '$,ey decided not to do the same on i~*Jt bec:aus1~f? )re said, the hedge sufficed for I would, therefore, find for -i),~luty puf,pcf~~-s. f1,~t. the ·,q;*ffi:~ge the hedge, which was :~Ji~ ~d by lfl~j'\:19,o~s~r:1ction work on Plot No. LC :,t';Jjto tljese.):·~qtivities. .. {,Si~ft ... (:~_)):;"¥>1::-·: ~~{~1 isstilt }elates the ,9!:!,;fo re-loca;t,e the beacons and make them more evfidence on i this aspect is exciting. The i(~~t there Y,,,~,s - n~thing wrong with the beacons. •, i;:,;f,j~re were :_,·p~acons and they were there for e '.ii'.has charged that the City Council and Town p.ci've authori .$ed construction work to begin if .. not locatetL: , That, in my view, stems from a ~-f what the plaintiff actually said. Although }\ e:x'.~ggeratir1~:r'\_i<:m the heig~t of th_e debris , he to surveys which to · · ; i!i:iii{ne~:{i:::~L:~~rr~::!~:i~= ;i:r~r~~: Jtt1~r;/,' considering , to ;{t,t~'',;\.,-.:. consider the It suffices for purpos es of .\1111i1iJh,:f(1.the general, i~~N~{ t~ ~tate that: ,;; there is sufficient evid~nc e on ~-~':t :; : _ba l ance . of Pr;P,£,c1~ilities. to s~9;"' that the beacons were int ered · \{f,'f by debris frow:f~ l;:,1".ite tp time. -. ~;'1necessi ty of ··:,- such exercise when ~s't:ion'. ' of damag~s. come ., , I ' ~ : . .. _ r"' ,:·; ·.',:I I l ' : :~:;.~;; ,- i inJ~nction against 1-to recover d,,. •::~QJ;-E¥,~ '~n~ also_ •::w,ant an The nex~li~'~p ~c t -,: therefore, relates to the remedies which fJ .-_, :'.'.- -tf '.; the plaintiffir::;~~:~~:s , against th_~ defendan~ .. The. plainti_ff s want :}',;i~~-: the :_:;J_:i +_•_,_(i ?efepdant. L _"~_:i)li1\1f co:psider f ir:9t t_he question of damages . The ,hl ' Ufl-derstand . it, is that where there has been . ,)Jiir Ut,' $,fene:r:a l rule, -'.c)amage to the plaintiff's land the damage s will · 1k1'..:'"l+.:'lno actual los :, r, -, :'i' 6n ly ,b e nomin~;:-\: ~(Armstrong v. Sheppard (1959) 2 All E. R . 651). C:: l;i;f;~ . ('-:lt;Where, howevijiif'.;;i·:tbe:r;e has been actual the ,,;:Tu:;·plaintiff is ~f}!;:::i,t),ed _to recover. Since Jones v. Goodey (1841) 8 M & W 14 6, iJi;.~?-d been said that the normal measure of d amages '/ ' was land the amouik of the diminution of the alternative measure of cost of in ',bat , case, /ll replacement o~.xepair, that is to say, the sum which it would take to restctiJ~ : _t-he · land to its original state was rej ected. ~hat decision •~ ~~ever, has had some problems. The test which the to be bas been E~d :'-:j,f,. to - reinstate the property to its original ._.-- pla~n~iff' s the ',.§:ti.on ':_,;position in to be awarded by reasonableness of loss or damag e the value of the • damages because, seems the the to a c ' iif ' -·; ' { ' I;,; / .,{. I' ,,,<::;:f ;;,., -~/- ~;:,- , diminution in the value of the land. This approach seems to agree with common sense. If , for example, the diminuti on in the value of the land is K20.00 , if re-instating it costs several million Kwacha , it would be unreasonable to require the d efendant to bear th at expense. On the other hand, if the d im inuti on in the value to the land affects the total value of the property then wha t the plain tif f loses is not the slight diminuti on in the value of the land but the whole land itself. This approach seems to come out very clea rly in the House of Lords decision of Lodge Holes Co lliery Company v. We dnesbury Corporation (1908) A. C. 323. In that case, due to the def e ndant's t re spas s , the local authori ty re-construc t ed a road without consultation with any experts whe n ther e was a cheaper way of doing that. Wh en they sued for t h e cost of r e placing the road, the court said they could not recover to th a t ex tent but to the e xtent proven to be the cheaper way of d o ing judgmen t of Lord Loreburn, Lord Chancellor, with which Lord Justices McNaughten and Atkinson agr ee d, und erscores the approach to this diffi cult problem. The Lord Chancellor stated that the cour t will not candidly take heed of any objection by the defendant, the wrong t he methods adopted by the victim of the wrongful act. doer , o n the work. The to land let down the methods by which "Now I think a court of justice ought to be very sl ow in count e nancing any attempt by a wrong-doer to make captious those whom he has ob je ct ions inj ured have sought to repair the injury. When a road is let down or those entitled to have it repaired find themselves saddled with a business which they di d not seek, and for which they are n ot t o blame. Errors of judgment may be committed in this as in other affa irs of It would be intolerabl e if persons so situated could li f e . be ca lled the wrong-doer for a minute scruti ny of the expense , as though they were his agents, they act for honestly and reasonably ". a ny mi s t a ke or miscalcul a tion, provided to account by The cou rt approa ches the problem by considering whether the victim of t he tr espas s in doing what he ha s d o ne to mak e good the damage h as acted h o nestly and reasonably. If he has done so, therefore , and the e xp en s e is n o t unreas o nable, the court will side wi th the vi c tim. The Lord Chancellor continued as follows; "In judging whe ther they have acted r easonably, I think a cou rt should be very indulg en t a nd a lways bear in mind who was to blame . Ac co rdingly, if the case of the plaintiffs had been that they h a d acted o n the advice of competent a dv ise rs in the work of reparation and had chosen the course they were a dvised was n ece ssary, it would go a very long wa y with me ; it would go the wh o l e way , unless it became clear that some quit e unrea son ab le course had been a d opted". measure of damage for trespass to land. unlike Th e principles I have just stated relate to the normal In this particula r case, v. Wednesbury in Lodge Holes Colliery Co. Ltd. of the the sm1ght op1 n1on pL:i inti ff s I have · problems with that stance. Corporation , a horticulturist. The holticulturist came up wilh a quotation of the expense. The defendants contend that all that could be done to the hedg~ would be to put in a few more plants in the patches and this would be cheaper than what the plaintiff has planned to . do. In the first place it . will take some time before those plants could reach the level of '. the new heds{e. Mor eove r, the plaintiffs have always kept their "'. premises at}J!t': 'certain level of beauty which, in my view, is not sumptuous. ~~~ey are justified to bring the hedge to the same level of presentability. is neither oppressive nor unreasonable. Furthermore, the defendants have not come up with an alternative expense or quotation as was done in Lodge Hoies Co. v. Wednesbury Corporation to show that the course I would, therefore, awiid the plaintiffs the cost of replacing the hedge as prayed. the plaintiff was unreasonable. The quotation, take·ri by to me, are also entitled, in my view , Apart from the cost of replacing the hedge, the plaintiffs to the expense of bringing the .~~ surveyor to re-locate the beacons and the boundary between Plot No. LC 18 and Plot No. LC 15. That they are entitled to this expense was decided in Rose v. Miles (1815) 5 M & S 101. It was contended by the defendant that it was not necessary to have the two or so surveys which were conducted. My assessment of the situation is that what the plaintiffs did was not unreasonabl e in the circumstances. As we have seen, the building has been built so close to the border that there is very little space between it ~nd the border with Plot No. LC 18. The defendant kept on putting debris on the beacon. Definitely if the beacons were not open for everyone to see , there was a whole possibility in the circumstances of a whole encroachment into the plaintiff s' the plot either deliberately or mistakenly. plaintiffs were opposed to any incursions into their piece of property . Thos e incursions could only have been noticed if the boundary w. clear and for all to see . More importantly, the .ce of land is freehold. They were entitled to plaintiff~ protect ev'ery 'Ce ntimetre of it. therefore, that the I find, plaintiffs are also entitled to damages for the surveys. In any case, The final question on the amount of damages is a matter that was considered by the Court of Appeal in Whitwham v. Westmin ster Brymbo Coa 1 and Coke Company Th e principle was expressed diversely by the Lord Justices of the Court of Awveal. At page 541 Lord Justice Lindley said: ( 18 9 6) 2 Ch. at page 5 3 8 . "The plaintiffs have been injured in two ways. First, they have had the value of their land diminished; secondly they have lost use of their land, and the defendants have had it It i s unjust to leave out o f sight £or their own benefit. the use which the defendants have made of this land for their own purposes, and that it lies at the bottom of what are ca l led 'way lec1ve cases ' . Those cases are based upon leave of the principle that if one person has without another us ed that other's land for his own purposes, he ought to pay for such use 11 • Lord Justice Lopes said: "Now, applying that principle here, what else have the plaintiffs suffered in consequence of the wrongful act of the defendants? land beyond all question has been diminished; and Mr. Russel admits that the plaintiffs are entitled to be paid in respect of that. But there is something more in respect of which I think the plaintiffs are entitled to be compensated and that is for the use the defendants have made of the plaintiff's land · during some eight years past". The value of their is, however, in the judgment of Lord Justice Rigby where, fart_from th~ principle j~st quoted from the two Lord Justices, · raised a way of assessing damages for that use. At page 543 rd Justice .. 1figby said: ;; land without · of any person's "The pr ciple is that a trespasser shall not be allowed to make some way g that other person for that use. Where the compens. trespas~~~ipsists in using a way over the plaintiff's land a convertient :way of assessing damages may be an enquiry as to way J;ea_i§ which, when there is a customary road, the charge ~r·way leave of the court may furnish a convenient measure 1,\bf c cJamages; but the principle is that in some way or another, .'.•if you can do nothing better then by rule of thumb, the trespasser must be charged for the use of the land". in They were The plaintiffs in this case want aggravated damages. The ggravation is in the defendant's persistence in the trespass in spect of numerous requests for him to desist. This includes lagrant disopedience of a court injunction personally served on In an~ action for trespass damages can be awarded for him. aggravation. '~,; in Steel Fabrication Industries v'(f;Norse International Limited., Civil Cause No . 269 of 1984 (unreported); Unango Estates Limited v. Michael, Civil ause No.487tpf 1983 (unreported) and Muleme v. Pantazis, Civil use No.666..f{Df 1987. So on the question of damages, therefore, i award the plaintiffs the sum of K5,000.00. This sum takes into ,;i pccount the ~ggravating circumstances in this case. You will · ,; . notice that they are above the amount that the plaintiffs has actually suffered as proven. For the use of the land for the past three years or so, there has been no evidence of the charge for way leave. I award the plaintiff the sum of K2,700.00. so awarded ~1f Finall plaintiffs pray for an injunction. That the court can gr injunction in this case is clear from Kelsea v. Imperial Tobacco Company (of Great Britain and Ireland) Ltd . The construction works have ( 1957) 2 All E. R. at page 343. lasted for the past three years. Al though the building works have finished, the defendant conceded that there is still a little more to do. This case is akin to the case of Woollerton In & Wilson Ltd. v. Richard Costain Ltd. that case aft injunction was suspended because the defendant last the offered trespass would not (1971) All E. R. 488. coni'fbensation and I n trespasses has not been ruled o ut. i ndefi nit ely . t h e cas e und er considerati o n, h o weve r, th ere h a s b e en n o s uch offer for compe ns a tion and as we have se en the Tha t p r ospe ct of o the r d e cision , however , was overruled in John Trenbirth Lt d. v. National Wes t minster Bank Limited (1979) 39 P & CR 104 in which the court r ef used to suspend an injunction against the bank which trespa s s ed i n 6rder to repair its premises. One of the r easons why an injunc tion would be refused is where the trespass i s of The trespass here is not of a trif ling a nature . Even if it is trifling, it has continued for the past three y ear s wi th no prospect of finishing in the near fut ure. The d e fendant, of course, has made undertakings in this cou rt to abide by the i njunction. I do not think, judging by hi s previous condu c t, h e would so abide unless an injunction was grante d and I so grant i t . The plaintiff is entit l ed to the cost of the act i o n. t rifling nat ure. MADE Blantyre. i n Chambers this 15th day of November, 1 994 at ~ - ( ) ' , I , . .. . l J ,.\ ,'.,/ \ · D. F. Mw'apngulu . _ _.., . ·. ACTING., JJUDGE ·1 . (! 1 ,,, , \