E. K. Odulaja V. A. F. Haddad (1973)
G. IRIKEFE, J.S.C
Before the High Court in Ibadan, the appellant and respondent herein were respectively plaintiffs in two cross actions which were subsequently consolidated for the purpose of trial. The appellant succeeded in his claims while those of the respondent were dismissed. The respondent, being dissatisfied with the decision of the Ibadan High Court, appealed to the Western State Court of Appeal on a number of grounds, but that with which this appeal is concerned, and on which it was in fact allowed, reads thus:-
“Ground “8” The learned trial Judge erred in law and misdirected himself on the facts when he awarded 900pounds as special damages for loss of rent when there was no evidence to support such award.”
The finding of the Ibadan High Court, in so far as it is relevant to the issue raised in this appeal, reads:
“On the evidence I find as a fact that it was the defendant by himself and through his agents that prevented the plaintiff from letting out the flats for over 30 months. The defendant did not lead evidence to challenge the fact that the flats would have been let out at 15 pounds a month; and did not challenge the evidence given by the plaintiff to the effect that it was he and his agents that prevented him, the plaintiff, from getting to the floors and consequently from letting them out. In my view the claim of the plaintiff for 900 pounds as special damages is well founded.
It was clearly established both on the pleadings and the evidence before the court of trial that whereas the appellant was, as from 6th November, 1961, entitled to possession of the two top floors of the premises known as 47A Lebanon Street, Ibadan, he was effectively prevented from doing so by the respondent until a court order made this possible on 11th May, 1964 – a period of some 30 months.
There was also evidence before the court of trial, which was accepted, that because of lack of access to the two top floors during the period under review, no tenants could be procured for the rooms situated therein.
The case made on behalf of the respondent in the Western State Court of Appeal was that, even if it was assumed that the appellant was prevented from letting the property in dispute during the period of 30 months, there was no evidence before the trial court as to what rental value the property would have fetched at the material period.
What evidence there was, it was submitted, should be deemed to relate to the time when the appellant was testifying on oath in 1970 in respect of this action which was filed in 1967. On the above contention, it was urged on the Western State Court of Appeal that since the award of 900 was regarded as special damages, which required to be strictly proved in law, there was in fact no such proof before the court of trial. The above contention was upheld by the Western State Court of Appeal and the award of 900 pounds was set aside.
This appeal has been brought only against that portion of the decision of the Western State Court of Appeal which disallowed the sum of 900pounds awarded as rent by the court of trial.
Learned counsel for the appellant, Mr. Bayo Oduwole, argued only ground 2 of the grounds of appeal filed, which ground reads as follows:-
“The learned Judges of Appeal erred in law and misdirected themselves when they hold inter alia that “the awards of 900 pounds (1800 Naira) as special damages were wrong as there was no evidence to support the awards” when in fact there is such evidence on record.”
In arguing the above ground, learned counsel referred us to the pleadings and the evidence given by the appellant as to the period when the property could not be let as found by the court of trial and also as to the rental value of the property as given in the said testimony. Learned counsel particularly laid stress on the fact that the evidence so given was neither challenged under cross-examination nor was any contrary evidence produced throughout the trial by the respondent.
It was further submitted that the record in the case on hand shows that the appellant is a trader and speculator in real estate and that, on the authority of the case of Adel Boshali v. Allied Commercial Exporters Ltd. (1961) 4 ANLR p. 917, we should hold, as was held in that case, that the appellant herein is an expert in the trade out of which this cause of action arose and, consequently, that the learned trial Judge was right in acting on uncorroborated but unchallenged evidence as to his loss of rent.
For the respondent, learned counsel Mr. Bola Ige, referred us to several portions of the printed evidence to show that, as the evidence of loss of rent did not relate to the period in controversy, that is November 1961 to May, 1964, it was necessary to have cross-examined the appellant on it; and indeed, that it would have been imprudent to do so.
Learned counsel further submitted that a trader, such as the appellant was shown to be, need not be an estate agent or a chartered surveyor as well, and that it would be wrong to clothe him with the capacity of an expert even on the authority of the case of Boshali v. The Allied Commercial Exporters Ltd. (supra) relied on by his counsel.
Finally, learned counsel submitted that there was not an iota of evidence before the court of trial as to what rent the disputed property could have earned during the relevant period, and drew our attention to the 12th Edition of Mayne and Mcgregor on Damages at pages 11 and 13, for a discussion of the difference in approach as to proof of general damage and special damage.
It is not in dispute that the only evidence upon the issue raised in this appeal is to be found in the following unchallenged testimony of the appellant:-
The two flats on the 1st and 2nd floors are not let at 15pounds each a month making 30pounds a month. After the 1961 judgment before I was allowed into the flats in 1964, I lost 30 months rent. I am claiming all these expenses which I have mentioned and the 900pounds loss of rent.”
We are in no doubt that the distinction between proof of general damage as opposed to special damage is a matter of law. This distinction is manifest from the following two English decisions:- (a) Stroms Bruks Aktie Bolag v. Hutchison – (1905) AC p. 515 and (b) British Transport Commission v. Gourley (1956) AC p. 185.
In Stroms Bruks Aktie Bolag v. Hutchison, Lord Macnaghten, at pages 525-526, after stating that he thought the division into general and special damages was more appropriate to tort than to contract, said:
“General damages ………..are such as the law will presume to be the direct natural or probable consequence of the act complained of. Special damages on the other hand, are such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and, therefore, they must be claimed specially and proved strictly.”
In British Transport Commission v. Gourley, Lord Goddard had this to say at page 206:
“In an action for personal injuries the damages are always divided into two main parts. First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred done to the date of trial, and is generally capable of substantially exact calculations. Secondly, there is general damage which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future.”
We are of the view that strict proof in the above con can mean no more than such proof as would readily lend itself to quantification or assessment.
In the case in hand, it was never contested that the appellant was wrongfully deprived of rent on the disputed property for a period of 30 months. The contest is as to evidence of the exact rent that the disputed property could have fetched at the given time. On the facts found in this case, such evidence was clearly impossible of production, since it was the respondent himself who made it impossible for the premises to be let. This is not the same thing as saying that the appellant had not suffered any loss.
It seems to us that the nature of proof in a given case must be dictated by the peculiar circumstances of the available evidence.
In Mayne & Macgregor on damages – 12th Edition- the learned authors have this to say in article 994 at page 830 under Proof of Special Damage:-
“However, with proof as with pleading, the courts are realistic and accept that the particularity must be tailored to the facts. Bowen L J., laid this down in the leading case on pleading and proof of damage, Ratcliffe v. Evans (1892) 2 QB p. 524.”
In relation to special damage he also said:
“The character of the acts themselves which produce the damage, and circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be …….. proved. As much certainty and particularity must be insisted on ……..in……..proof of damage as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist “upon more would be the vainest pedantry.”
Some further support for the views expressed above may be found in cases dealing with the valuation of land where what is known as the open market value is normally applied. See – Gajapatraju v. The Revenue Divisional Officer, Vizagapatam (1939) AC 302 P.C. at p. 312.
It is trite law that a civil case is decided on a preponderance of probabilities and that the onus of adducing further evidence is on the person who would fail if such evidence were not produced. See Section 135 of the Evidence Act and the unreported decision of this court in Suit SC. 264/68: Elemo & Ors. v. Molade & Ors. delivered on 27th November, 1970. See also the observations of Denning J. (as he then was) in the case of Miller v. Minister of Pensions (1947) 2 AER p. 372 at 374.
We are of the view that the facts in this case are not dissimilar to those in the case of Adel Boshali v. Allied Commercial Exporters Limited (supra). In that case, the appellant claimed, apart from the market value of the goods, the subject of the action, loss of profit at the rate of 6d. per yard. The only evidence adduced at the trial to support such loss of profit came from the appellant, and he was not cross-examined on the basis that this claim was excessive. The trial court found that the sale was one by description and not by sample, gave judgment in favour of the appellant and awarded damages at the rate of 6d. per yard on the whole consignment. Lord Guest (delivering the judgment of their Lordships of the Judicial Committee of the Privy Council) stated as follows:-
“The Federal Supreme Court took the view that the figure of 6d. per yard for loss of profit on the sale of the goods awarded by the trial Judge rested on the ipse dixit of the appellant that he would have made a profit of 6d. and that this was not sufficient proof of his actual loss of profit.”
The only evidence as to loss of profit came from the appellant who was an expert in the trade and whose evidence was accepted by the trial judge. He was not cross-examined on the basis that his claim was excessive.
The trial Judge was in their Lordships’ view fully entitled, in the absence of any contrary evidence, to take the figure of 6d. per yard as the appellant’s loss of profit.”
In the particular circumstances of this case, therefore, coupled with the fact that the respondent had the opportunity of producing evidence in rebuttal of the appellant’s assessment of his loss of rent, but did not do so, we take the view that the learned trial Judge was right in his quantification of the loss on the available evidence, and that the Western State Court of Appeal was wrong in setting aside the award of 900pounds as rent for the 30 months.
The appeal accordingly succeeds and it is allowed. The decision of the Western State Court of Appeal disallowing the award of 900pounds for rent is hereby set aside and the decision of the Ibadan High Court in Suit No. 1/230/67 Ezekiel Kalejaiye Odulaja v. Annis Ferris Haddad dated 2nd December, 1970 is restored in its entirety. And this shall be the judgment of the court. The appellant will be allowed his costs assessed at N60 in the court below and at N108.60 in this court.
SC.280/1973
