Tort-Trespass-Special Damages for goods lost-Need to prove-General damages-Serious inconvenience.  Practice and Procedure-Judgment affecting non-party-Need of notice-Rules of Court, Order 34, rule 2.

The above rule (of Sierra Leone) provides as follows;-

"2. 'Where by any judgment or order any person therein named is directed to deliver up possession of any lands to some other person, the person prosecuting such judgment or order shall, without any order for that purpose, be entitled to sue out a writ of possession on filing an affidavit showing due service of such judgment or order and that the same has not been obeyed."

Plaintiff (now respondent) was in possession of premises as sub-tenant of A.R., who had a lease from M.T., the owner. The owner sold the premises to the defendant (now appellant), who sued A.H.. for recovery of possession and after judgment in his favour obtained a writ of possession, under which the Sheriff's officers removed the above respondent's stock in trade and his personal effects and his wife's outside the premises and took possession. The respondent (plaintiff below) had no notice of the proceedings against A.R .. (his own lessor), nor was any copy of the judgment therein served upon the respondent. Respondent (as plaintiff below) sued the purchaser (above appellant) claiming general and special damages for trespass and loss of goods stolen. At the time the respondent's under­lease had still time to run, and the appellant knew he was in occupation. The trial Judge decided in plaintiff's favour and, though substantially rejecting his evidence on his losses, awarded him £150 for money stolen, £250 for loss of goods, and £100 as general damages. The defendant appealed.

On appeal it was argued for the appellant that there was no need, as the trial Judge decided, to serve the respondent with notice of the judgment against A.R.; that the Judge erred in awarding special damages as he had not believed the respondent on his losses; and as regards the general damages, that the award was excessive as the Sheriff's officers remained on the premises for about four hours only.

Held: As the respondent's sub-lease disappeared upon appellant recovering judgment against A.R., a copy of the judgment ought to have been served on the respondent who was affected by it, in accordance with rule 2 of Order 34.

Held also: (1) Special damages have to be strictly proved, and the trial Judge having substantially rejected the respondent's evidence on his losses ought not to have endeavoured to assess the loss;

(2) The respondent's stock in trade and personal effects were put on the pavement in the public highway, and the Judge was justified in taking a serious view of the inconvenience caused to the respondent, as to general damages.

Appeal from Supreme Court by applicant  No. 13/52.

R. W. Beoku-Betts for Appellant.

j. C. Zizer for Respondent. [pg 140]

The following judgment was delivered:

Foster-Sutton, P. The plaintiff-respondent claimed the sum of £933 5s. 10d. which he alleged was the value of his stock in trade, personal effects and money lost as an outcome of the wrongful execution of a writ of possession which the defendant-appellant caused to be issued in connection with the premises occupied by the respondent. He also claimed general damages for the trespass.

The respondent was a sub-tenant of one Abdul Radar of the ground floor and a portion of the first floor of premises known as 44 Little East Street, Freetown, where he lived and carried on his business.

Radar leased the whole of the premises from one Mrs. Marian Taylor who afterwards disposed of her interest in the property to the appellant. The appel­lant brought an action against Radar for recovery of possession of the premises for breach of covenant under the lease, and judgment was given in his favour. As a result of the judgment the appellant obtained a Wit of Possession and the Sheriff by his officers took possession of that portion of the premises occupied by the respondent and caused his stock in trade, his personal effects and those of his wife to be removed outside the premises on to the pavement. The respondent alleged that the Sheriff's action resulted in his suffering loss of cash amounting to £150 and stock in trade and personal effects to the value of £783 5s. 10d.

It was proved that at the time of the execution of the writ of possession the respondent's lease still had approximately six months to run, and the appellant admitted that at the time of the execution he knew that the respondent was in occupation of the shop premises.

The respondent alleged, and it was not disputed, that he had no notice of the proceedings brought by the appellant against H.adar or of the writ of possession and that the first intimation he had that a writ of possession had been issued was when the Under-Sheriff arrived with his assistants at the premises occupied by him.

The appellant sought to prove that no pilfering had occurred as a result of the execution of the writ of possession as alleged by the respondent, but the learned trial Judge found in favour of the respondent on that issue although he took the view that the special damages claimed had been exaggerated, and he awarded the respondent the sum of £150 in respect of money alleged to have been stolen, £250 for loss of goods and £100 by way of general damages. It is against that judgment that the appellant has appealed.

Counsel for the appellant submitted that the learned trial Judge erred ill holding that notice of the judgment obtained by the appellant against Abdul Radar should have been served on the respondent. He argued that although sub-rule 2 of rule 1 of Order 47 provides that in these circumstances notice must be served on a person in occupation of the premises, the local rules and Orders make no such provision, and he submitted that the equivalent local rule is rule 1 of Order 34, and that as that rule is silent as regards notice the English Rules do not apply. I do not think it is necessary to consider that point because. I am satisfied that rule 2 of Order 34 of the Sierra Leone rules does apply. It was admitted by both Counsel for the appellant and the respondent that the interest of a sub-tenant ceases with the interest out of which it was carved, and that the respondent's sub-lease disappeared upon the appellant recovering judgment against Radar. That being so, in my view, a copy of the judgment ought to have been served on the respondent who was affected by it, in accordance with rule 2 of Order 34 ..

Counsel for the appellant also submitted that the learned Judge erred in awarding any special damages in this case since it is implicit from his judgment that he disbelieved the respondent's evidence regarding the volume of his alleged losses. Counsel for the respondent has invited us to say that the learned trial Judge, in spite of the fact that he rejected the appellant's evidence regarding [pg 141] much of his alleged special damages, was justified in making an estimate as to what he thought had been lost.

I feel bound to say that I regard the £250 awarded for loss of goods and personal effects as being unsatisfactory. As Counsel for the appellant has submitted it is clear from the learned trial judge's judgment that he substantially rejected the respondent's evidence regarding his losses. That being so, in my view, remembering that special damages have to be strictly proved, the learned trial judge was not justified in endeavouring to assess the amount of loss since he was obviously unable to indicate which of the articles he believed to have been lost.

I am of the opinion that the whole of the evidence as to special damages, including the item of £150 cash alleged to have been stolen, must be regarded as unsatisfactory.

Counsel for the appellant submitted that in view of the fact that the Under­Sheriff and his men only arrived at the shop about 10 o'clock in the morning and remained there until about 2 o'clock in the afternoon, the trespass is not really a serious one. With that argument I am unable to agree. In my view the learned trial judge was justified in taking a serious view of this case. The respondent's goods, as I have already pointed out, were removed, not only his stock in trade but also his personal effects, and put on the pavement in the public highway and he must have suffered grave inconvenience as a result. That being so I am of the opinion that the award of £100 general damages should stand.

It follows from what I have said that I would allow this appeal to the extent of amending the judgment of the Court below by deleting the award of £150 and £250 special damages. In other respects the judgment to stand, and I would make no order as to costs on this appeal.