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SUIT NO. FSC 177/1963

3PLR/1964/28  (SC)










[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]



Tort – Conversion – Tenant upon notice demolishing the house he had built – Landlords taking the materials – No conversion – Conversion

Remedies – Damages – Market value of goods allowed with addition for general damages – Rule against double compensation for same cause of action.



ALAL. Balogun, for the Board.

Chief F.R.A. Williams, for the Tax-payer.



BRETT, J.S.C. (Delivering the Judgment of the Court): This is an appeal from the judgment of the High Court of Eastern Nigeria awarding damages for conversion. The appellants belong to the village of Umuori and in an action decided some years ago the people of that village obtained a declaration of title to a piece of land against the people of Oraukwu village, to which the respondent belongs. The respondent was among the members of Oraukwu village who had already built houses on the land in question, and an agreement was reached between him and representatives of Umuori village, by which he was to be entitled to continue to occupy his house for five years from the date of the agreement on payment of ten shillings a year rent. When the five years were up he was either to move to another piece of land which the people of Umuori village might offer him or leave the village.


The five years expired on the 31st January, 1960, but the respondent remained in occupation of his house without paying rent. On the 9th January, 1961, the people of Umuori village caused their solicitor to send the respondent a letter of which the crucial part reads as follows:


‘This is to give you notice that you are required to remove from the site you occupy and to remove and pack out all your belongings therefrom. We are instructed to add that if this is not done on or before the 1st of February, 1961 our clients shall be obliged to enter the premises and use k in any manner they so wish as owners of the land without any further notice to you.


You have been warned.”


Apart from submitting that the time allowed was Insufficient, the respondent has not denied that this was a valid notice to quit, and he instructed a contractor to demolish the house and remove the materials. On the 4th February, 1961, a number of people from Umuori village including the appellants forcibly prevented the respondent’s servants and agents from removing the materials from the site, and on the 4th or 5th February, 1961, they themselves, acting in concert, removed both the materials taker, from the demolished house and certain other building materials which the respondent had stored on the site for use in a new house which he intended to build elsewhere. The respondent reported the matter to the police, who refused to Intervene, and the respondent instituted the present action, claiming £407- 7s-0d as damages for conversion of the materials taken from the house, £60 as damages for the conversion of the other building materials and £132-13s-0d under the heading of “general damages”. The trial Judge granted the claim in full.


The parties are agreed that their rights are governed by the common law of England, or by a rule which is identical with that of the common law of England, and the first question to be determined is whether the respondent can maintain an action against the appellants for the conversion of the component parts of his house after they had been detached from the house. The question was argued at length in the High Court, and the submission made on behalf of the respondent was that the terms of the notice to quit conferred on him a licence to demolish the house and remove the materials.


The learned Judge held that the respondent had a right to remove the articles in question, but he did not make it clear whether he accepted the submission that there was a licence (to which he did not expressly refer) or whether he regarded them as tenant’s fixtures. In either event we are satisfied that his view of the respondent’s right was mistaken. The respondent agrees that the articles were not tenant’s fixtures, and the demand that the respondent should “remove and pack out all your belongings” is not apt for the purpose of conferring a licence to remove what belongs to someone else. The statements which some of the appellants are said to have made to certain other persons about their intentions regarding the house cannot alter the meaning of the only communication made to the respondent himself. The award of damages under the first nine of the eleven heads set out in the Statement of Claim must be set aside.


The remaining two heads refer to the building materials stored on the site. It is not submitted that the appellants had any right to remove these, and it is immaterial whether the respondent was a trespasser in re-entering the land after the notice to quit had expired for the purpose of removing them himself. The respondent’s own witness said that the building materials were removed on the day after the materials taken from the house itself by two of the appellants whom he did not name or identify, and the submission made on behalf of the appellants is that that evidence is Insufficient to establish their responsibility for the conversion of these materials. There was evidence on which the judge was entitled to find, as he did, that the appellants and the other people of Umuori village were acting in concert throughout, and we uphold the award of damages under heads ten and eleven, though, as has been agreed on behalf of the respondent, the sum awarded under these heads must be reduced from £60 to £50, since that is the sum which the respondent himself said these materials were worth.


Finally we have to consider what justification there can be for the award of £132-13s-0d as “general damages”. The judge, after finding the eleven speck items of damage proved, merely said ‘There will be judgment for the plaintiff as per his writ of summons”, and gave no reason for awarding this additional sum. General damages are usually referred to by way of contract with special damages, and as is pointed out in Mayne and McGregor on Damages, 12th edition, paragraphs 912, these terms are capable of bearing a number of different meanings. They may refer to questions of liability, or of proof, or of pleading, and items of damage may be regarded as special for the purpose of pleading though general for the purpose of liability. It is therefore important to be sure in what sense either term is used In any particular context. Where, as has happened here, a plaintiff asking for damages begins by setting out specific items of damages and then adds a claim under the heading of general damages for a sum which will bring the total claimed to a round figure, his claim should always be carefully scrutinised both by the defendant and by the Court in order to see whether he is in fact asking to receive compensation more than once for the same cause of action. An instance of this occurred in Onaga & Ors v. Micho & Co. [1961] All N.L.R. 324, where this Court held that having been awarded damages for his actual loss under various specific headings a plaintiff in an action for breach of contract could not receive any further award under the heading of general damages.


The measure of damages in an action in tort is not the same as in an action in contract, but the rule against double compensation remains the same. In an action for conversion it is well settled that the normal measure of damages is the market value of the goods convened, though in certain cases, of which this is not one, the plaintiff may be able to recover damages for consequential losses, as long as damage is not too remote. In the present case the plaintiff has been awarded the full value of the building materials, and it is difficult to see what room there can be for any further award under the name of general damages. In this Court Mr Aniagolu cited certain cases in which exemplary damages were awarded for trespass, as a punitive measure, on facts which he submitted were comparable to those in the present case, but the Statement of Claim did not ask for exemplary damages and since the trial judge gave no separate consideration to the claim for general damages we are not in a position to say why he awarded them.


Furthermore, there appears to be no reported case of an award of exemplary damages for conversion, as opposed to trespass to goods. It is submitted in Mayne and McGregor, op. cit. paragraph 209, that there is no adequate reason for refusing them, but that was published in 1961, and any question about exemplary damages needs reconsideration in the light of the recent decision of the House of Lords in Rookes v. Barnard [1964] 2 W.L.R. 269 to the effect that exemplary damages should be awarded only (1 in cases of oppressive, arbitrary or unconstitutional acts by government servants (and by no others); (ii) where the defendant’s conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the plaintiff; (iii) where expressly authorised by statute. It is not necessary in the present case to decide whether the Courts in Nigeria should adopt this decision in toto, but as a warning against the over-free award of exemplary damages it is of strong persuasive authority. On the facts of this case we do not consider that this Court could properly assume that the trial judge intended to award exemplary damages, or hold that this was a case where they were justifiable when he did not so hold. Apart from exemplary damages it is recognised in Rookes v. Barnard that where damages are at large they may be aggravated by injury to the plaintiffs proper feelings of dignity and pride, but the damages are not at large in this case, since the measure of damages Is the value of the materials converted, which is known precisely.


For these reasons we are of the view that the award of general damages cannot be upheld and it is set aside. In fairness to the trial judge we should add that the admissibility of the claim for general damages was never challenged in the High Court and we repeat that the defendant as well as the judge ought always to consider whether any particular claim comes within the accepted rules for the award of damages. If a defendant fails to do this he can hardly be surprised N the judge grants what is claimed, and the defendants’ failure in this case must be taken into consideration in the assessment of costs.

In the result the award of damages is reduced from £600 to £50. The costs awarded to the respondent In the High Court are reduced from sixty guineas to fifteen guineas and the appellants are awarded part of their costs in this Court, which we access at fifty-five guineas, including out-of-pocket expenses of £53-18s-0d.



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