Oshinjirin & Ors V. Alhaji Elias & Ors (1970)
LawGlobal-Hub Lead Judgment Report
COKER, J.S.C.
The appellants are six of the defendants in an action in which the respondents as plaintiffs had claimed as follows:-
“The plaintiffs claim against the defendants jointly and severally ‘a350,000 being special and general damages for wrongfully entering the plaintiff’s bus terminal at Agege Motor Park No. 1 on the 21st of October, 1963 and pulling down two culverts damaging other parts of the premises and further preventing the plaintiffs from using a portion of the premises thereafter.
The plaintiffs also ask for an injunction to restrain the defendants, their servants, and or agents from continuing or repeating the trespass complained for.”
The 1st defendant in the court below was the Agege District Council and the 2nd defendant, one H. O. Dairo, was the secretary of the Council. As against both the 1st and 2nd defendants in the court below the plaintiffs’ claims were dismissed on grounds connected with the Local Government Law Cap. 65 (Laws of Western Nigeria, 1959) and the notices prescribed by section 247 of that Law.
The appellants, to be hereinafter referred to as defendants, were found liable on the claims before the court and judgement was entered against them in the words of the learned trial judge as follows:-
“There will therefore be judgement for the plaintiffs against the 3rd-5th defendants jointly and severally for the total sum of ‘a35, 103 with costs assessed at 500 guineas.
The case has lasted more than three years during which a lot of expenses have been incurred by the plaintiffs who have been compelled to engage new counsel due to circumstances. In fact, this is a second hearing of the case.
There will also be an order for perpetual injunction against the 3rd-5th defendants, their servants and/or agents, restraining them or any of them from further trespass into the said land.”
It is against this judgement that the defendants have appealed to this Court. A number of grounds of appeal were filed and argued on behalf of the defendants. In the course of argument, however, we indicated to learned counsel for the defendants that we were convinced that the learned trial judge came to the right conclusion on the issue of liability and so we do not desire in this judgement to say much on that issue.
The learned trial judge carefully considered the defences put forward by the defendants. He came to the conclusion, not without justification, that the defendants were liable for “forcibly entering upon the land in dispute”. He disbelieved “the defendants that they took possession of the land peacefully as they pretended to do” and thereafter proceeded to deal with the measure of damages.
We think that the evidence accepted by the learned trial judge does not abundantly justify his conclusions and that he was right in concluding that the defendants were liable.
With respect to damages it was argued by learned counsel for the defendants that:-
(i) The special damages awarded were not strictly proved;
(ii) The learned trial judge wrongly took into consideration matters
which were not relevent or supported by evidence as a basis for his assessment of general damages; and
(iii) in any case it was wrong to award any general damages in favour of the plaintiffs in as much as the plaintiffs had already been compensated for all their loss by way of special damages.
Undoubtedly the rule that special damages must be strictly proved applies to cases of tort. In effect the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed.
This however does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages.
What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates.
In the case in hand, learned counsel for the defendants concedes that there was evidence concerning the special damages claimed and that the learned trial judge accepted the evidence thus given in that respect. He however complained that the evidence should not have been accepted and acted upon by the learned trial judge and submitted that for the evidence to be acceptable it should have been cumulative and not based on the ipse dixit of the claimant alone. We are of course unable to accept this submission and no authority whatsoever has been cited to us in support of it.
A court trying such a case should give adequate consideration to the evidence offered in support of a claim for special damages and if the accepted evidence possesses such a probative value as preponderates the case in favour of the person claiming, then an award would certainly be justified (see Agbaje v. National Motors, S.C. 20/68 of 13th March, 1970).
In the case in hand, we think that on the evidence of the plaintiff’s witness, Samuel Anibaba, which the learned trial judge accepted, he was entitled to make, as he did, the award for special damages.
The complaints against the award of general damages are more serious. In the first place, it was said that the judge based his award on a consideration of irrelevant matters which were largely not supported by the evidence before him. It is true to say that the learned trial judge here and there in his judgement made expressions which were not supported by the written evidence before him.
It cannot however be said that by and large his comments, very strong at times, did not correctly represent the purport or substance of the evidence before him. Before awarding general damages of ‘a37,500 against the defendants, the learned trial judge directed himself as follows:
“On the issue of damages, I accept the evidence about the special damages as given by the 4th plaintiff and I award the plaintiffs the total of ‘a3603 in respect of them. I disbelieve the defendants that they took possession of the land peacefully as they pretended to do. On the issue of general damages, I consider the conduct of the 3rd-8th defendants to be very reckless, high-handed and therefore most reprehensible. In fact, their loaders used their official positions wrongly to oppress the plaintiffs who were their trade rivals and they did all they could to ruin their business where it would hurt most. It was a case of abuse of power for their own benefit.”
We think that these comments are justified by the evidence but that the learned trial judge ought to have confined himself to the evidence. His other comments without doubt go to raise his estimation of the plaintiff’s damages. Where this is the case, and it is established that these comments are not justified as they were not supported by evidence or that in any case they are irrelevant for purposes of estimation of damages, the Court of Appeal would reduce the amount of damages awarded. (See Onasanya v. Adeniji (1952) 14 W.A.C.A. 81.
We accept the argument of learned counsel for the defendants in this connection. We cannot however fail to appreciate the high-handed way in which the defendants had gone about committing the tort complained of.
To say the least their action as found by the learned trial judge constituted a downright disregard for the laws of the country and a determination to operate their own business for their own profit even if that be at the expense of the business of the other parties.
General damages at any rate in the con of the present case are damages at large. Concerning this point, Lord Devlin said in Rookes v. Barnard [1964] 2 W.L.R. 269 at p. 324 thus:-
“Moreover it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff’s proper feelings of dignity and pride.
These are matters which the jury can take into account in assessing the appropriate compensation.”
But although we are in agreement with the learned trial judge that adequate compensation should be paid or given to the victims of the defendant’s unlawful act, we cannot be oblivious of his references and statements which have been justly criticised before us and the arguments in respect of which we have accepted. We would therefore allow the appeal on the measure of damages by reducing the award on the head of general damages from ‘a37,500 to ‘a34,000.
The submission that the plaintiffs were being paid compensation twice over is in our view untenable. Although the plaintiffs had claimed for loss of earnings under the head of special damages it would be seen from the judgement that the learned trial judge made no award in their favour for the claim under that head. We agree with and accept the argument that it is wrong to award damages twice over and that where a plaintiff has been compensated under one head of damages for a particular injury it is improper to award him damages in respect of the same injury under another head (see per Unsworth, F.I. in Onanuga v. Micho & Co. [1961] All N.L.R. 255, 324 at p. 328). The judgement appealed against in this case however does not give double compensation in respect of any particular item of injury and we hold that the award of general damages in this case is not improper.
The defendants have also complained about the costs of 500 guineas awarded against them by the learned trial judge. It was submitted on their behalf by learned counsel that the costs awarded were manifestly excessive and learned counsel for the plaintiffs himself told us that whilst he would be satisfied with a reasonable amount as costs he would not defend the obviously high award of 500 guineas.
In the result the appeal is allowed only with respect to the amount of general damages awarded and the costs and we would vary the amount of ‘a37,500 awarded under that head by substituting therefore the amount of ‘a34,000 so that instead of the total amount of ‘a38,103 awarded against the defendants the total amount will not be ‘a34,603.
With respect to the quantum of costs awarded in the High Court, this is also varied by reducing the amount to 200 guineas and setting aside the order for the payment of 500 guineas. As the appeal had failed on the issue of liability and succeeded only on the measure of damages and costs, we think that in the circumstances the proper thing to do with respect to the costs of appeal is to make no order thereon.The appellants are six of the defendants in an action in which the respondents as plaintiffs had claimed as follows:-
“The plaintiffs claim against the defendants jointly and severally ‘a350,000 being special and general damages for wrongfully entering the plaintiff’s bus terminal at Agege Motor Park No. 1 on the 21st of October, 1963 and pulling down two culverts damaging other parts of the premises and further preventing the plaintiffs from using a portion of the premises thereafter.
The plaintiffs also ask for an injunction to restrain the defendants, their servants, and or agents from continuing or repeating the trespass complained for.”
The 1st defendant in the court below was the Agege District Council and the 2nd defendant, one H. O. Dairo, was the secretary of the Council. As against both the 1st and 2nd defendants in the court below the plaintiffs’ claims were dismissed on grounds connected with the Local Government Law Cap. 65 (Laws of Western Nigeria, 1959) and the notices prescribed by section 247 of that Law. The appellants, to be hereinafter referred to as defendants, were found liable on the claims before the court and judgement was entered against them in the words of the learned trial judge as follows:-
“There will therefore be judgement for the plaintiffs against the 3rd-5th defendants jointly and severally for the total sum of ‘a35, 103 with costs assessed at 500 guineas. The case has lasted more than three years during which a lot of expenses have been incurred by the plaintiffs who have been compelled to engage new counsel due to circumstances.
In fact, this is a second hearing of the case. There will also be an order for perpetual injunction against the 3rd-5th defendants, their servants and/or agents, restraining them or any of them from further trespass into the said land.”
It is against this judgement that the defendants have appealed to this Court. A number of grounds of appeal were filed and argued on behalf of the defendants. In the course of argument, however, we indicated to learned counsel for the defendants that we were convinced that the learned trial judge came to the right conclusion on the issue of liability and so we do not desire in this judgement to say much on that issue.
The learned trial judge carefully considered the defences put forward by the defendants. He came to the conclusion, not without justification, that the defendants were liable for “forcibly entering upon the land in dispute”. He disbelieved “the defendants that they took possession of the land peacefully as they pretended to do” and thereafter proceeded to deal with the measure of damages. We think that the evidence accepted by the learned trial judge does not abundantly justify his conclusions and that he was right in concluding that the defendants were liable.
With respect to damages it was argued by learned counsel for the defendants that:-
(i) The special damages awarded were not strictly proved;
(ii) The learned trial judge wrongly took into consideration matters which were not relevent or supported by evidence as a basis for his assessment of general damages; and
(iii) in any case it was wrong to award any general damages in favour of the plaintiffs in as much as the plaintiffs had already been compensated for all their loss by way of special damages.
Undoubtedly the rule that special damages must be strictly proved applies to cases of tort. In effect the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed.
This however does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates. In the case in hand, learned counsel for the defendants concedes that there was evidence concerning the special damages claimed and that the learned trial judge accepted the evidence thus given in that respect.
He however complained that the evidence should not have been accepted and acted upon by the learned trial judge and submitted that for the evidence to be acceptable it should have been cumulative and not based on the ipse dixit of the claimant alone. We are of course unable to accept this submission and no authority whatsoever has been cited to us in support of it.
A court trying such a case should give adequate consideration to the evidence offered in support of a claim for special damages and if the accepted evidence possesses such a probative value as preponderates the case in favour of the person claiming, then an award would certainly be justified (see Agbaje v. National Motors, S.C. 20/68 of 13th March, 1970).
In the case in hand, we think that on the evidence of the plaintiff’s witness, Samuel Anibaba, which the learned trial judge accepted, he was entitled to make, as he did, the award for special damages.
The complaints against the award of general damages are more serious. In the first place, it was said that the judge based his award on a consideration of irrelevant matters which were largely not supported by the evidence before him. It is true to say that the learned trial judge here and there in his judgement made expressions which were not supported by the written evidence before him.
It cannot however be said that by and large his comments, very strong at times, did not correctly represent the purport or substance of the evidence before him. Before awarding general damages of ‘a37,500 against the defendants, the learned trial judge directed himself as follows:
“On the issue of damages, I accept the evidence about the special damages as given by the 4th plaintiff and I award the plaintiffs the total of ‘a3603 in respect of them. I disbelieve the defendants that they took possession of the land peacefully as they pretended to do. On the issue of general damages, I consider the conduct of the 3rd-8th defendants to be very reckless, high-handed and therefore most reprehensible. In fact, their loaders used their official positions wrongly to oppress the plaintiffs who were their trade rivals and they did all they could to ruin their business where it would hurt most. It was a case of abuse of power for their own benefit.”
We think that these comments are justified by the evidence but that the learned trial judge ought to have confined himself to the evidence.
His other comments without doubt go to raise his estimation of the plaintiff’s damages. Where this is the case, and it is established that these comments are not justified as they were not supported by evidence or that in any case they are irrelevant for purposes of estimation of damages, the Court of Appeal would reduce the amount of damages awarded. (See Onasanya v. Adeniji (1952) 14 W.A.C.A. 81.
We accept the argument of learned counsel for the defendants in this connection. We cannot however fail to appreciate the high-handed way in which the defendants had gone about committing the tort complained of. To say the least their action as found by the learned trial judge constituted a downright disregard for the laws of the country and a determination to operate their own business for their own profit even if that be at the expense of the business of the other parties. General damages at any rate in the con of the present case are damages at large. Concerning this point, Lord Devlin said in Rookes v. Barnard [1964] 2 W.L.R. 269 at p. 324 thus:-
“Moreover it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff’s proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation.”
But although we are in agreement with the learned trial judge that adequate compensation should be paid or given to the victims of the defendant’s unlawful act, we cannot be oblivious of his references and statements which have been justly criticised before us and the arguments in respect of which we have accepted. We would therefore allow the appeal on the measure of damages by reducing the award on the head of general damages from ‘a37,500 to ‘a34,000.
The submission that the plaintiffs were being paid compensation twice over is in our view untenable. Although the plaintiffs had claimed for loss of earnings under the head of special damages it would be seen from the judgement that the learned trial judge made no award in their favour for the claim under that head. We agree with and accept the argument that it is wrong to award damages twice over and that where a plaintiff has been compensated under one head of damages for a particular injury it is improper to award him damages in respect of the same injury under another head (see per Unsworth, F.I. in Onanuga v. Micho & Co. [1961] All N.L.R. 255, 324 at p. 328). The judgement appealed against in this case however does not give double compensation in respect of any particular item of injury and we hold that the award of general damages in this case is not improper.
The defendants have also complained about the costs of 500 guineas awarded against them by the learned trial judge. It was submitted on their behalf by learned counsel that the costs awarded were manifestly excessive and learned counsel for the plaintiffs himself told us that whilst he would be satisfied with a reasonable amount as costs he would not defend the obviously high award of 500 guineas.
In the result the appeal is allowed only with respect to the amount of general damages awarded and the costs and we would vary the amount of ‘a37,500 awarded under that head by substituting therefore the amount of ‘a34,000 so that instead of the total amount of ‘a38,103 awarded against the defendants the total amount will not be ‘a34,603. With respect to the quantum of costs awarded in the High Court, this is also varied by reducing the amount to 200 guineas and setting aside the order for the payment of 500 guineas.
As the appeal had failed on the issue of liability and succeeded only on the measure of damages and costs, we think that in the circumstances the proper thing to do with respect to the costs of appeal is to make no order thereon.
SC.63/1968
