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THE SUPREME COURT OFNIGE
2ND JUNE, 1966.
BEFORE THEIR LORDSHIPS:
SIR ADETOKUNBO ADEMOLA, C.J.N. (Presided)
SIR LIONEL BRETT, J.S.C. (Read the Judgment of the Court)
GEORGE BAPTIST AYODOLA COKER, J.S.C.
TAIBATU A. JAMES
A.G.O. AGBAJE – for the 1st Appellant
M.O. ONALAJA – for the 2nd Appellant
E.B. CRAIG – for the Respondent
REAL ESTATE/LAND LAW: – Tenancy – Trespass by landlord – When landlord is liable for trespass on tenant’s lawful possession – Mistaken belief that tenant gave up her right or reviewed it through the agency of her spouse – Trespass effected by another tenant of landlord under the licence of landlord – Over-reach of landlord’s agent – Whether defence available to landlord – Damage for trespass to land – Relevant consideration
TORT AND PERSONAL INJURIES LAW – DAMAGES: – Claim for trespass to and missing property occasioned by trespass – Liability under Part 5 of Torts Law of Western Nigeria – Assessment of – Joint tortfeasors – How to assess their rights to contribution as between themselves
COMMERCIAL LAW – CONTRACT – AGENCY: – Tenancy agreement – Tenancy held by wife – Agency – Whether can be given up through the agency of wife’s husband without her consent or ratification – Privity of contract – Whether tenancy agreement executed by wife over her shop can be reviewed by husband with Landlord without her consent or ratification
CHILDREN AND WOMEN LAW: – Women and Real Estate – Women in Business – Women and Justice Administration – Whether a tenancy held by a wife in her name can be given or reviewed by husband as her agent without her permission, consent or ratification – Need for proper book keeping in retail business – Effect on claim for and proof of special damages suffered – Destruction of woman’s shop with her wares inside causing – Attitude of court thereto
PRACTICE AND PROCEDURE – ACTION: – Title of the suit – Relevance – Whether can be amended on an oral application made by Counsel for the plaintiff in his closing address
PRACTICE AND PROCEDURE – JUDGMENT – DAMAGES: – Special damages – Need for strict proof – Effect of failure thereof
CASES REFERRED TO –
Njemanze v. The Shell B.P. Port Harcourt, (1966) 1 All N.L.R. 8; 1196611 SCNLR 9
BRETT, J.S.C. (Delivering the Judgment of the Court):
The two appellants have appealed against the award of damages for trespass. The respondent was the tenant of the first appellant in one shop of a block of four known as No.40 New Court Road, lbadan on a yearly tenancy commencing on the 15th June, 1961. The second appellants were tenants of the adjoining shop and wished to obtain a lease of the shop held by the respondent. The first appellant had discussions with the respondent’s husband, and in the mistaken belief that the respondent, through the agency of her husband, had agreed to give up the shop she had and take another instead he granted the second appellants a lease of the shop occupied by the respondent as from 11th September, 1961. On the 11th September the plaintiff visited the shop and found that the second appellants had broken in through the party wall and that furniture and stock-in-trade were missing. She sued both respondents for trespass, claiming general damages of £200 and special damages of £1,220 as the value of the missing articles.
On these facts the second appellants were undoubtedly liable in damages and the first appellant was liable if he authorised the trespass. In his Statement of Defence he pleaded that he “gave the second appellants permission to take possession of the shop though he suggested at the same time that they should wait for the plaintiff to open it up.” His evidence was to the same effect and we uphold the Judge’s finding that he authorised the trespass.
As joint tortfeasors the first and second appellants should each have been held liable to the plaintiff for the whole of the damage resulting from the tort, and an order could have been made under Part 5 of the Torts Law assessing their rights to contribution as between themselves. What the trial Judge did was to award the plaintiff £150 general damages against the first appellant and £50 general and £605 special damages against the second appellant. This was an incorrect form of judgment but neither appellant can complain of it as against the respondent, since each has been held liable to her for less than he should have been, and the notices of appeal did not object to the apportionment of liability as between the two appellants. The respondent might have asked that the order be varied, but has not done so.
The appeal of the first appellant, who was held liable only in general damages, is therefore dismissed.
The second appellants have appealed not only on the issue of liability but on the award of special damages. As regards the stock-in-trade we think there is substance in their arguments. The respondent, relying on her memory, gave evidence that in June, 1961, she placed in the shop, besides other articles which the Judge found not proved, 50 bundles of iron sheets, 86 headpans and 10 bales of printing paper, and the special damages awarded include the sum of £568 in respect of these articles. She said that she would produce confirmation of this from the ledger of the shop where she bought the goods but did not do so. She gave no account of what had been sold between June and September and although a clerk employed by her who was called as one of her witnesses said that there was another clerk who kept sales and purchases book these books were not produced and no explanation was given for the omission. The Judge said that he accepted “the evidence that the plaintiffs receipts have been lost”, but it is not recorded that any such evidence was given and we must treat this as a misdirection. The respondent was not cross-examined as closely as she should have been on her evidence as to the stock in hand, but if sales and purchases books were kept they would certainly have been the best evidence of the stock in hand immediately before the trespass and we hold that these items of special damage were not proved except as regards 18 headpans valued at 10/-each which the labourers who broke down the wall brought to the first appellant. The damages awarded against the second appellant are reduced by £559, leaving an award of £50 general damages and £46 special damages.
The first appellant will pay the respondent costs of his appeal assessed at 20 guineas and we make no order as the costs of the second appellants’ appeal.
We observe that the second appellants were originally sued as Pool House (Nigeria) Limited and that the title of the suit was amended on an oral application made by Counsel for the plaintiff in his closing address. This was not made ground of appeal but we call attention to what this court said in Njemanze v. The Shell B.P. Port Harcourt, (1966) 1 All N.L.R. 8; 1196611 SCNLR 9, judgment delivered 13th January, 1966, as to the procedure to be adopted in such a case.
Appeal of 1st appellant dismissed.
Appeal of second appellant allowed.