Michael Modiri v Bradley Paumen and Daylight & Darknight Cave Adventures Ltd
| Jurisdiction | Belize |
| Judge | Sir Manuel Sosa P,Hafiz-Bertram JA,Ducille JA |
| Judgment Date | 15 March 2019 |
| Neutral Citation | BZ 2019 CA 12 |
| Court | Court of Appeal (Belize) |
| Docket Number | CIVIL APPEAL NO 27 OF 2016 |
| Date | 15 March 2019 |
IN THE COURT OF APPEAL AD 2018
The Hon Mr Justice Sir Manuel Sosa President
The Hon Madam Justice Minnet Hafiz Bertram Justice of Appeal
The Hon Mr Justice Murrio DucillePresident Justice of Appeal
CIVIL APPEAL NO 27 OF 2016
N Uc Myles for the appellant.
A Segura-Gillett for the respondents.
Damages - Assessment — Compensatory damages — Nominal damages — Appeal — Whether learned trial judge erred in finding that appellant was entitled to compensatory damages as opposed to nominal damages — Whether learned trial judge took improper considerations into account in awarding compensatory damages to appellant — Appeal dismissed.
By Written Submissions
This appeal and cross-appeal should, in my opinion be dismissed. I have read, in draft, the judgment of Ducille JA and wish to say that I concur in the reasons for judgment and proposed orders stated therein.
I had the opportunity of reading in draft, the judgment of my learned brother, Ducille JA, and I am in agreement with the orders proposed by him and his reasons for doing so. I have nothing else to add.
HAFIZ-BERTRAM JA
This case originally began as a claim for an easement of necessity or, in the alternative, declarations that a road reserve or public road existed between the Appellant's property and the Sibun River, damages for unlawful trespass by the Respondents, interest and costs. This is an appeal from that part of the judgment of Griffith J. awarding the Appellant compensatory and exemplary damages for trespass to land. Both parties have appealed. The Appellant appeals against the awards made in his favor that he contends are “excessively low.” The Respondent appeals the entire award on the ground that the Appellant is only entitled to nominal damages.
The Appellant is the owner of a large parcel of land in the Frank's Eddy Agricultural Layout in Cayo, which was originally valued at $80,000.00. The 1 st Respondent is a director of the 2 nd Respondent and is also a director of Sibun Grain and Cattle Ltd. The latter is not a party to this appeal. However, Sibun Grain and Cattle Ltd. also owns land in the Frank's Eddy Agricultural Layout that abuts or is adjacent to the Appellant's parcel. The parties were originally in negotiation regarding both a joint venture and permissions to pass over each other's land, but such negotiations fell through.
The Appellant's complaint was that the Respondents trespassed on his land by destroying trees, removing large rocks and building a road on his property without permission. The Respondents began to use this road as transit to carry on tour operations on other land, including land known as Indian Creek Equestrian Center, for the benefit of tourists and residents. Since June 2014, the Appellant had cause on more than one occasion to seek the Court's assistance, resulting in the issuance of Interim Injunctive Orders, and their respective extensions. The Respondents disobeyed those Orders, and continued to operate their tours, traversing through a three-quarter mile stretch of the Appellant's land.
The Appellant brought the action herein, claiming, inter alia, damages for trespass to land. During the course of those proceedings, the Respondents admitted the trespass, so that the sole remaining issue with respect to that claim was assessing the quantum of damages. The 1 st Respondent admitted, during cross-examination, that there had been negotiations between the parties during which he had offered the Appellant $20,000 for the use of the Appellant's land for one month. The Appellant had, however, demanded $40,000. No agreement resulted. The learned trial judge awarded: compensatory damages of BZ$150,000.00 (based on her assessment of a user fee of US$5,000.00 per month for the 15 months during which the trespass continued) and exemplary damages of BZ$150,000.00; interest on the compensatory damages at 6% from June 2014 to the date of judgment; no interest on the exemplary damages; and statutory interest on the entire judgment of BZ$300,000.00 from the date of judgment until payment. In her computation, the learned trial judge did not accept the evidence as to valuation of the land provided by one Jose Garcia, one of the Appellant's witnesses.
The Appellant's Grounds of Appeal are as follows:
(i) that the Learned Trial Judge erred in failing to provide legal basis, comparative authorities or a calculative method in finding that “[a] fair assessment using the parties own figures and taking the two factors just noted by the court, is considered as US$5,000 (BZ$10,000) for the Defendants' use of the Claimant's land.”
(ii) that the evidence in the case compellingly establishes that the
compensatory damages award by the Learned Trial Judge was excessively low. The evidence supported the Claimant's case that, at the very least, US$27,500 (BZ$55,000) being the median between the sum proposed by the Claimant and the sum proposed by the Defendant should have been awarded. The evidence before the Learned Trial Judge was sufficient to support an award of compensatory damages in excess of $150,000.00.
The Respondents” Grounds of Appeal are as follows:
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(i) that the learned Trial Judge erred in finding that the Appellant/Claimant
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was entitled to compensatory damages in the sum of $150,000.00 based on user value, as opposed to nominal damages for diminution in value of his property.
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(ii) that the learned Trial Judge erred in law in relying on figures set out by the Appellant's/Claimant's Attorney in a “Without Prejudice” communication to the Respondents'/Defendants' Attorneys as the starting point for her quantification of the value of the Respondents'/Defendants' use of the Appellant's/Claimant's property.
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(iii) that the Learned Trial Judge took improper considerations, that is the “Without Prejudice” communication between Attorneys, into account in arriving at the compensatory damages award in favor of the Appellant/ Claimant.
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(iv) that the Appellant/Claimant, having failed to adduce evidence to establish a user value, ought to only be allowed to recover nominal damages.
The Appellant asks this Court to adjust the award of compensatory damages to “a reasonable figure” utilizing US$20,000.00 (BZ$40,000.00) per month as a starting point for calculation, instead of the US$5,000.00 figure used by the learned trial judge. The Appellant also asks this court to dismiss the Respondents' appeal in its entirety. The Respondents, on the other hand, ask this court to set aside the award of compensatory damages, substitute an award of nominal damages and dismiss the Appellant's appeal with costs to the Respondent.
The Appellant's arguments are somewhat of an enlargement of his Grounds of Appeal, but can be summarized as follows:
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(i) the learned trial judge should have made a “two-fold award” consisting of nominal damages for the damage to the land and compensatory damages for user;
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(ii) the learned trial judge failed to address the Respondent's evidence as to costs of tours and number of persons who participated; and also, failed to consider the Respondents' claim of loss due to cancellation of tours as evidence of profit;
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(iii) the learned trial judge failed to address the continuing trespass after the injunction was granted;
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(iv) since Jose Garcia's evidence as to the degree of trespass was accepted, so too should have been his evidence as to comparative rental
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(v) the two factors considered by the learned trial judge in making the award were unjustified
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(vi) the learned trial judge failed to address the Respondents' admission that the parties negotiated use of the land.
The Appellant contended that the award “should have been two-fold; a nominal award for the damage done to the property between 2013 and June 2014 when the tours were commenced by the Respondents … and the user of the Appellant's land.” The Respondents assert that “compensatory damages should be based on a choice between diminution in value and reinstatement cost or user value, not both.”
The Appellant proffered several authorities for our perusal in support of the assertion that the award of damages should be adjusted. However, no real analysis of those authorities was provided. In the event, it is unclear what point the excerpt from first of these cases is meant to support, although the case in general does offer some insight on the measure of damages for trespass to land. The case is Field Common Ltd. v Elmbridge Borough Council [2008] All ER (D) 141. There, the claimant's land was separated from the defendant's land by a private road encompassing a right of way that the defendant and its tenants enjoyed. Over the years, the right of way gradually expanded, thereby encroaching on the claimant's land. The claimant complained to the defendant, but the defendant eventually resurfaced the road and included the claimant's land without its consent. The claimant brought an action and an assessment of damages was ordered. The court held that
“[w]here a landlord had been held to be responsible for the trespasses of its tenants, it was right in principle that the wronged party should recover compensation in respect of the benefits that the landlord had enjoyed as a result of the tenants' trespass; such benefit as the landlord enjoyed was to be treated as if it were an enjoyment of the land itself in respect of which the wronged party was entitled to recover damages.”
The Appellant particularly referred to the following passage by Warren J: “Although an analysis based on the loss of a bargaining opportunity works at least as a close analogy, in that sort...
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