Harold Shodipo & Co. Ltd Vs The Daily Times Of Nigeria Ltd (1972)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

In Suit No. LD/130/69 the plaintiffs, herein appellants, through a firm known as Messrs Adana Brothers placed an order for the advertisement of their business names and undertakings for publication in the 1969 Year-Book published by the defendants. The cost of a full page advertisement therein was 40(pound), which was paid through Messrs Adana Brothers.

When placing the order with the defendants, Messrs Adana filled in and forwarded to the latter advertisement form exhibit D showing his client, title, mid-year space, date, position and his own rate of commission. As it happened, the defendants failed to insert the advertisement in the Nigeria Year-Book for 1969 in accordance with the order and, when sued contended that Messrs Adana were never their agents for acceptance of the advertisement in their Year- Book and that, even if they were such agents, they were too late in submitting their proof of the advertisement in question. The defendants also contended that, under the terms of the contract, they were not liable for failure to insert the advertisement.

The learned trial judge found that the evidence adduced before him showed that the cheque for the 40(pounds) was issued in the name of the defendants and that Messrs Adana Brothers duly claimed 10 per cent commission from the defendants. The learned trial judge therefore held that, in this particular transaction, Messrs Adana Brothers acted as the agent of the defendants, and that the latter had committed a breach of the contract by their failure duly to insert the advertisement. The learned trial judge accordingly held that the defendants were liable in damages to the plaintiffs for breach of contract. He proceeded to award 350(pounds) as damages which amount includes the 40(pounds) costs of the advertisement, together with 50(pounds) costs, in favour of the plaintiffs. In reaching this conclusion, the learned trial judge said:-

“In estimating the quantum of damages one has got to look at the circumstances of the case. I have not been addressed nor had evidence been led that the plaintiffs definitely lost some particular clients or suffered specific losses as a result of the failure to insert the advertisement. In awarding damages, I take into consideration the amount of 40(pound) which they, plaintiffs, paid for the advertisement and which had not been refunded to them and the failure of the defendants to carry out their contract.”

Against this decision of the High Court of Lagos State, the appellant has filed and been allowed to argue the following two grounds of appeal:-

1. The learned trial judge erred in law and on the facts in failing to observe that in the circumstances of this case it is not possible or even necessary for the plaintiff to prove actual damages.
2. The learned trial judge erred in law and on the facts in assessing damages by allowing his mind to be influenced by his finding that no evidence was led to the effect that “the plaintiffs definitely lost some particular clients or suffered specified losses as a result of the failure to insert the advertisement.”

Particulars of Error

(i) The purpose of the advertisement was to win new clients.

(ii) It is impossible to ascertain the number of persons who would have patronised the plaintiffs if the advertisement had been published.

3. The damages awarded are manifestly low.

In arguing both grounds of appeal, Chief Williams, learned counsel for the appellant, submitted that he had no quarrel with the learned trial judge’s decision in respect of the refund of the 40(pounds) paid for the advertisement by the plaintiffs, but that the learned trial judge was in error in awarding so small an amount of damages mainly on the ground that evidence had not been led to show that the plaintiffs had suffered specific pecuniary losses as a result of the failure of the defendants to insert the appellants’ advertisement in their Year-Book. His contention is that, in this type of claim, it is not always possible to adduce evidence of specific losses. In support of his contention he referred to Aerial Advertising Co. v. Batchelors Peas Ltd., (Manchester) [1938] 2 All E.R. 788, at page 795, where Atkinson J. observed as follows:-

“I come, then, to the claim for general damages, and here a point of law is raised. There is only a claim for general damages in respect of pecuniary loss, and Mr. Roskill says that I cannot give general damages for pecuniary loss in respect of breach of contract, and that I can give damages only by way of special damage for a breach of contract. For that argument Mr. Roskill relies upon Groom v. Crocker (1). I fail myself to see any difference in principle between a claim for special damage and a claim for general damage. One, of course, has to be proved as completely as does the other. The only difference is that, where one is claiming special damage, the circumstances are such that one is able to put one’s finger on a particular item of loss and say, ‘I can prove that I lost so much there, so much there, and so much there’, whereas a claim for general damages means this: ‘We cannot prove particular items, but we can prove beyond all possible doubt that there has been pecuniary loss.’ Once that has been proved, I cannot myself see any difference in principle between special damage and general damage. When one reads Groom v. Crocker (1), one sees that, so far from saying that there is any difficulty in recovering general damages, to my mind it says precisely the opposite. The relevant passage in the case is quite short. Groom v. Crocker (1) was decided so recently that I need not go through the facts. What Sir Wilfrid Greene, M.R. said (and this is what is relied upon) at at p. 401:-

‘It was said that, as a result of the negligence on the part of the appellants, the respondent was subjected to mental suffering, that he was held up to public disapproval, that his reputation as a careful driver was destroyed, and that the jury were entitled to award damages in respect of these matters. It was said that the action was an action in tort, and not in contract, and that, even if it were an action in contract, such damages were recoverable. In my opinion, the cause of action is in contract, and not in tort.’

Sir Wilfrid Greene, M.R. then goes on to say what the duty was, and proceeds, at p. 402:-

‘No authority was cited to us which supports the proposition that, in an action based on breach of contract, damages can be recovered in respect of the matters to which I have referred (which did not include pecuniary loss). No pecuniary loss arose from them, and no reasonable probability of pecuniary loss in the future could be shown.’