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Tort- Trespass-Damages-Assessment-Irrelevant considerations. Appeals in Civil Cases-Altering the amount of damages.

While the tenant was in occupation his landlord, after giving notice to quit, had the windows and doors removed from the shop and room, thus exposing the tenant and his goods to the weather and risk of loss. The tenant sued for damages for goods lost and for £500 as general damages. The trial Judge awarded £400 as general damages, saying "he is, however entitled to substantial general damages as the defendant's conduct throughout has been very high-handed and (he) did not even appear to defend this action but sent his clerk ".

The landlord appealed, confining his complaint to the amount as excessive and arguing that there had been irrelevant considerations in the assessment.

Held: The trial Judge did allow himself to be influenced, and wrongly so, by irrelevant considerations; consequently, the appeal would be allowed and the damages reduced.

Case cited:-

Smith v. Schilling, 1928, 1 K.B.D., at p. 440. Appeal by defendant: No. 3582.

M. Adekunle, with him Williams, for Appellant.

J. I. C. Taylor, with him David, for Respondent.

The following judgment was delivered:

Foster-Sutton, P. The plaintiff was the tenant of a shop and a room in premises situate at 27 Ojo Giwa Street, Lagos, in which he lived and carried on a tailoring business, and the defendant was his landlord. The plaintiff's case was that on the 7th day of May, 1949, he received a notice from his landlord's agent to quit the premises at the end of May. The notice was admitted in evidence as Exhibit •• A " and, in addition to requiring him to quit and deliver up the premises by the end of May, it informed him that the landlord required the premises for himself and his family.

On the 11th May, 1949, the defendant's servants or agents came to the premises in question and, in spite of the plaintiff's protests, proceeded to remove the windows and the doors from the shop and the room, thus exposing the plaintiff and his goods on the premises to the weather and risk of loss. The plaintiff alleged that, in spite of the fact that he then employed a watchman, thieves entered the premises and stole money, jewellery and clothing valued at £193 10s. 0d. and he sued the defendant for £193 10s. 0d. by way of special damages and for £500 for general damages, and he asked the Court for an injunction ordering the defendant to restore the windows and doors to the room and shop.

In his statement of defence, the defendant alleged, intel' alia, that on the 7th May, 1949, the plaintiff informed his agent that he had vacated the premises in question and handed over his key. to him. He admitted that on the 11th May, 1949, on his instructions, his workmen entered the premises and. that they did remove all the windows and doors, but, he alleged, with the object of replacing them with modern ones. He further alleged that his workmen found the plaintiffs room empty, but admitted that the shop was still occupied by him. [pg 81]

At the trial the plaintiff gave evidence and the defendant's agent, one Julius Dairo, and a calpenter were called as witnesses for the defence. Although it was not put to the plaintiff in cross-examination, the carpenter gave evidence that the plaintiff prevented him from replacing the windows and doors. Julius Dairo contradicted himself in material particulars and it is not surprising, I think, that the learned trial Judge rejected their evidence, holding that they were not witnesses of truth. He did not accept the plaintiff's evidence of the special damages suffered by him, but gave judgment in his favour for £400 by way of general damages. The trial Judge, however, declined to grant the injunction asked for on the footing that the plaintiff ought to have been able at the time of the judgment to obtain other premises.

The appellant filed a number of grounds of appeal, but Mr. Williams, who appeared as leader to argue the case for the appellant, very rightly, I think, only addressed us on the question of quantum of damage. He submitted that the learned trial Judge took into consideration irrelevant matter, thereby misdirecting himself as to the amount that ought to be awarded, and he referred us to a case in support of his submission, that the Court of Appeal will in such circumstances interfere. The irrelevant matter that ML Williams submitted influenced the learned trial Judge's mind, is to be found at page 22 of the Record at line 25. where the learned trial Judge said, " ... he is, however, entitled to substantial general damages as the defendant's conduct throughout has been very highhanded and did not even appear to defend this action but sent his clerk ".

NIL David on behalf of the respondent has argued that the trespass committed was a serious one and caused the plaintiff grave inconvenience over a prolonged period and he has urged us not to interfere, in all the circumstances of this case. with the learned trial Judge's award.

The principle upon which the Court of Appeal acts in these cases is stated by Lord Justice Greer in the case of Smith v. Schilling (1), where he said:-

"The verdict may be set aside if the Court of Appeal upon all the circumstances comes to the conclusion that the damages awarded are so small or so large that twelve sensible jurors could not reasonably have awarded them; or if the Court is satisfied that the jury have taken into account matters which they ought not to have taken into account or have disregarded matters which they ought to have taken into account."

Applying that principle to this case, I am of the opinion that the learned trial Judge did allow himself to be influenced, and wrongly so, by irrelevant con· side rations. That being so, I would allow this appeal as to the amount of damages awarded by amending the learned trial Judge's judgment in that respect, reducing the damages awarded from £400 to £200, and in view of the fact that the appellant has only succeeded on one ground of appeal, that is to say the ground which Mr. Williams argued, I think the proper order to make in this case is no order as to costs.

We also order that the respondent do refund to appellant the sum of £200, £400 having been paid by the appellant. The Court below to carry this order into effect if it becomes necessary so to do.