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OLUMUYIWA JIBOWU, AG. F.C.J. (Presided)
M.C. NAGEON DE LESTANG, F.J. (Read the Judgment of the Court)
PERCIVAL CYRIL HUBBARD, AG. F. J.
PRACTICE AND PROCEDURE – APPEAL -Appeal on damages – Duty of appellant.
PRACTICE AND PROCEDURE – APPEAL – Appeal on damages – Interference with award of damages by lower Court- Principles applicable.
PRACTICE AND PROCEDURE – DAMAGES – Award of damages by trial Court – Interference by appellate Court – Guiding principles.
PRACTICE AND PROCEDURE – Costs – Award of
PRACTICE AND PROCEDURE – Findings of fact- Duty of trial court
DE LESTANG, F.J. (Delivering the Judgment of the Court):
This is an appeal from a judgment of Abbott, J., awarding £179:2:6d damages to the respondent for an assault. The damages are made up as follows:
Doctor’s bill £10:10:0
Hire of taxis 16:02:6
Cost of drugs 2:10:0
Damage to clothing —-
Loss of earnings 50:0:0
General Damages 100:0:0
The appellant appealed both on the question of liability and on the ground that the damages were excessive. At the hearing, however, Mr. Fani Kayode abandoned all the grounds of appeal save that relating to damages. Moreover, he informed the Court that he was not challenging the first and third elements of damages set out above.
The facts were that the respondent was the tenant of certain premises of which the appellant was landlord, at 30/- rent per month which included a sum of 5/- for electricity. A dispute having arisen as to the payment of the 5/-, the respondent one evening called on the appellant to discuss the matter. The appellant, however, was not prepared to listen to the respondent, ordered him out of his room and slapped him on the left ear. The teamed Judge found as a fact that the blow caused “considerable damage to that delicate organ.” He must, therefore, have accepted the evidence for the respondent that the injuries to the respondent’s ear were such as to necessitate treatment daily from the 4th November until 9th December, a period of 36 days, and that during that time the respondent was unable to attend to his normal work.
The principles on which an Appeal Court acts in an appeal on the quantum of damages are well settled. These principles were enunciated thus by Slesser, L.J. in Owen versus Sykes, 1936, 1 K.B. 1927 at pages 199 and 200:
“In the case of an appeal from a Judge trying a case without a jury I would accept as a criterion what Green L.J. states in Flint v Lovell (1935) 1 K.B. 354, 360 where he says:
In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced (either) that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.” I read those words to mean that if the amount given is an amount which this Court itself might feel disinclined to agree with as an amount which they themselves would assess, that circumstance alone would not necessarily justify this Court in making any amendment of the Judge’s award, and this Court would normally have to be satisfied that there really was, again to quote the words of Green L.J. “an entirely erroneous estimate of the damage to which the plaintiff is entitled.” That is a question of degree, but I wish to guard against the supposition that because this Court is hearing such a case by way of rehearing, therefore it would be ready to reassess damages according to what this Court, if they had been trying the- case, might have given as damages, and not what the Judge below gave. It is incumbent, I think, on the parties wishing to disturb the damages awarded to satisfy this Court that the Judge had acted upon an erroneous estimate- meaning thereby something in which the error had so tinged the proceedings that it was a proper case for this court to assess the damages. Otherwise it seems to me a matter of discretion for the learned Judge as to his estimate of the damages.”
Applying these principles to the present case, I consider that although the general damages awarded are probably more than I would have awarded myself, had I been trying the case, they are not, on the view which the learned Judge took of the injury inflicted, so excessive as to be clearly erroneous and thus justify variation by this Court.
As regards the item for taxis, Mr. Kayode has argued that the respondent should have travelled by bus, and thus mitigated the damages. There is no evidence on the record to show that the respondent could have travelled by bus, and it is sufficient to point out that this item was never challenged at the trial. I cannot, therefore, in the circumstances say that the learned Judge was wrong to allow this claim.
As regards the claim for loss of earnings, the evidence thereon was not of the best. Nevertheless the learned Judge accepted the respondent’s evidence that he lost f40 per month, and it is impossible for me to say that he was wrong in so doing. It should be remembered that with regard to the two last matters, the Judge was necessarily in a better position than this Court to decide as they are matters of fact.
It remains for me to deal with the question of costs which Mr. Kayode has submitted are excessive. The learned Judge allowed the respondent costs which he assessed at £26:5:0 plus £20:10:2 for disbursements. As however, the amount for which the respondent obtained judgment, viz: £179:2:6 was well within the pecuniary jurisdiction of the Magistrate’s Court he ought not to be allowed costs otherwise than on the Magistrate’s Court scale. I would, therefore, reduce the amount awarded by way of costs to £12:12:0. Subject to this alteration I would dismiss this appeal with £17 costs to the respondent.
JIBOWU, AG. F.C.J. I concur.
HUBBARD, AG. F.J. I concur.