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BEFORE THEIR LORDSHIPS
SIR LIONEL BRETT, F.J. (Presided)
JOHN IDOWU CONRAD TAYLOR, F.J.
SIR VAHE BAIRAMIAN, F.J. (Read the Judgment of the Court)
REAL ESTATE – DAMAGES – Special damage – Claim for value of goods detained – Goods and value of not proved – Judge nevertheless making an estimated guess and awarding damages – Impropriety of.
PRACTICE AND PROCEDURE – DAMAGES – Special damage – Need for strict prove of.
PRACTICE AND PROCEDURE – EVIDENCE – Res judicata – Where not applicable.
Oguagha – for the Appellant.
Aniagolu -for the Respondent.
BAIRAMIAN, F.J. (Delivering the Judgment of the Court): In this appeal, the defendant complains against the judgment given by W. J. Palmer, J., on the 5th April, 1960, in Suit No. E/33/59 of the Enugu Judicial Division.
The defendant was the landlord of the plaintiff, whom he turned out of the premises, and the plaintiff had three causes of action, as follows
In regard to A and B, the plaintiff sued in the Magistrate’s Court, in regard to C he sued in the High Court claiming £2,000, and obtained judgment for £200; hence this appeal.
In the High Court suit the defendant pleaded the other suit as res judicata; the learned Judge explained that C was not part of the case before the Magistrate; and the first ground of appeal objects to that ruling. At the hearing of the appeal we went carefully into the claim in the Magistrate’s Court and its decision; it was clear that there was no claim, issue, or decision on C, and it will be superfluous to say more about it in this judgment.
The other grounds of appeal argued, taken together, come to this: the trial Judge made no definite finding on what the goods detained were and what their value; he thought the plaintiff was a liar; there was no evidence on which any finding could have been made.
Learned counsel for the plaintiff conceded that on the reasoning of the judgment, the highest he could put his case was that the goods detained were three cases of plain glass – the plaintiff is a photographer or dealer in photographic materials – and that they were worth £14, on a calculation based on the price given in the claim, to which the plaintiff referred in his evidence. He supported the judgment to that extent only.
Learned counsel for the plaintiff concedes that special damages have to be, as it is usually put, strictly proved. The way that rule is applied can be seen in Jaber V Basma,14 W.A. C.A. 140; the relevant part is at page 142, and is quoted here:
“I feel bound to say that I regard the £250 awarded for loss of goods and personal effects as being unsatisfactory. As counsel for the appellant has submitted, it is clear from the learned trial Judge’s judgment that he substantially rejected the respondent’s evidence regarding his losses. That being so, in my view, remembering that special damages have to be strictly proved, the learned trial Judge was not justified in endeavouring to assess the amount of loss since he was obviously unable to indicate which of the articles he believed to have been lost.”
If in this case the learned trial Judge erred likewise, it would be right to disallow the claim in its entirety.
The salient passages in the judgment are these:
“This is a case in which I am not able to believe either party Now as to the extent of the property, the plaintiff has clearly lied…… There is no proof of the value apart from plaintiff’s own record. The position therefore is that I am satisfied that defendant has wrongfully detained some property of the plaintiff, but I am not at all satisfied as to the value thereof. There is really nothing to show what the cases contained…. The plaintiff has obviously not told the truth about the value. It seems to me likely that to establish his possession of the shop, he put in cases of no great value -mainly plain glasses probably… In the circumstances I propose to assess the value of the property wrongfully detained at £200. This is admittedly a guess, but I do not see what else I can do but guess. There certainly was some property – “plenty of cases” as the constable (whom I believe) says and the defendant will not produce them.”
The core of the judgment is that although there is nothing to show what the cases contained, and the plaintiff did not tell the truth about the value, it seemed likely that to establish his possession of the shop he put in cases of no great value- mainly plain glasses probably, and as a mere guess the value was £200. The three cases might have contained old newspapers or nothing at all; the learned Judge says there was nothing to show what they contained.
It seems to me that the judgment under appeal here erred in the same way as the judgment under appeal in Jaber V Basma, and that the appeal ought to be allowed.
I cannot help remarking that the plaintiff did not do well in bringing two actions: he should have united all his claims and causes of action in one suit. If he wished to make a claim in excess of the Magistrate’s jurisdiction, he could have sued in the High Court on all his causes of action; or, as his genuine claims were within the Magistrate’s jurisdiction, he would have done well if he had brought them all before him.
The following order is proposed:
The appeal from the judgment of the 5th April, 1960, in Suit No. E/33/59 of the Enugu Judicial Division of the High Court of the Eastern Region, is allowed with costs to the defendant in the suit (now appellant) assessed at forty-five guineas.
BRETT, F.J.: I concur.
TAYLOR, F.J.: I concur.