v     

pg150

Appeal Court, 8th Nov., 1941.

.Claim for damages for injury to building-Expert evidence­ Admission of liability -Construction of letter.

This was a claim for damages for injury caused to the appellant'. house by vibration during building operations of the respondents. Expertly were called in to examine the house and an undertaking was given to repair any damage after the building had been completed: these experts were not available at the trial, at which the appellant called two other expert witnesses and the respondents one. The trial Judge rejected the evidence of the former and accepted that of the latter and found that the damage was not due to vibration, and gave judgment for the respondents: he referred to a letter put in as a promise in writing to in somewhat vague terms to make good any damage to plaintiff's premises caused by their operations.

Held: That there was ample evidence on which the Court below could reach the conclusion it did that the appellant had failed to prove damage, that there was no suggestion that a cause of action arose on the alleged admission of liability and undertaking to repair which were evidence but not proof of the claim; further that it may be shown that an admission wall made under an erroneous view of the party's own liability.

Case cited:-

Newton v. Liddiard 12 Q.B. 925.

E. J. Ale.x Taylor for Appellant.

J. E. David for Respondents.

The following joint judgment was delivered: BAKER, BROOKE, AND JEFFREYS, JJ.

This is an appeal from the judgment of Butler Lloyd, J., given in the Supreme Court, Lagos, on 21st April, 1941. The plaintiff-appellant is the owner of a dwelling house at 18 Kosoko 'street, Lagos. This house was built sometime before 1910 on ground which had been reclaimed and was formerly mud. The defendants-respondents are a business firm who erected a large commercial building on adjacent ground some three years ago.

The appellant claimed in the Court below damages for injury to his house during the respondents' building- operations caused by vibration resulting from the use of a pile-driving machine by the builders, the respondents' agents,

The appellant gave evidence in support of his claim and stated that he had complained to the respondents' agent at the time and had shown him the damage being done. He also called in two experts at that time to examine his house and they went to see the agent who then undertook to repair the damage after the respondents' building had been completed. These two experts were not available at the trial.

The plaintiff also put in correspondence between him and the respondents and relied particularly upon his Solicitors letter dated 8th January 1938 (Exhibit "E") and the respondents reply on 10th January, 1938 (Exhibit "F "). Those letters read: -

Plundayo Alaba Akerele,

Barrister-at-Law & Solicitor,

24 Odnnlami Street, Lagos, Nigeria.

8th January, ]938.

Ex. "E"

2222/40 .1. W. Bamiro v. S.a.O.A.

Put in by Mr. Taylor Intd. Ola S.

Regtr. 26/2/41.

                                                                                        " The Agent, S.O.O.A.,

Broad Street, Lagos.

RE 18 KOSOKO STREET,

LAGOS.

Sir,

I am instructed by my client Mr Willie Bamiro to inform yon that during the building of your store at Kosoko Street Lagos, my client house No. 18 Kosoko Street was badly damaged due to the Iron holdings used by you in your building.

The Iron on being knocked down simply cracked my client's house and your then Agent :Mr Nicoday was shewn the damages and he promised to have the place repaired after completing your store.

Since completion my client informs me that nothing was done to repair his house.

TAKE NOTICE therefore that unless my client's house is satisfactorily repaired within fourteen days my instructions are to put the matter in court claiming damages and that without any further notice from this office.

I am, faithfully yours,

(Sgd.) E. A. Akerele, Solicitor to W. Bamiro."

"Ex. 'F.'

2222/40 J. W. Bamiro v. S.a.O.A.

Put in by Mr. Taylor Intd. Ola S.

Regtr. 26/2/41.

 pg152

Mr. Ekundayo A. Akerele, Barrister-at-La w ,

24, Odunlami Street.

Lagos.

RE 18 KOSOKO STREET, LAGOS.

Sir,

In reply to your letter of the 8th instant re the above.

Contrary to what your client has told you our store at Alakoro is still under erection and it was not completed yet; our arrangement with your client was that his house will be repaired after completion of our store and this is not finished yet, we cannot do anything until the completion of the building.

Yours faithfully,

p. pon. S.C.O.A. (Sgd.) F. Jawz."

The respondents did not do any repairs and in reply to a letter from the appellant's solicitor dated 26th May, 1938, demand­ing immediately fulfillment of the promise to repair (Exhibit "G-"). The respondents' then agent wrote on 26th May, 1938, (Exhibit "H") proposing that a competent engineer should examine the appellant's house and report upon the cause of the damage thereto but not admitting liability.

At the trial, the appellant called two expert witnesses one of whom examined his house on 18th May, 1938, and again shortly before the trial.

The other expert examined appellant's house on 26th August, 1940, both these expert witnesses1aescribed extensive cracking and buldging of the walls and other damage which they attributed to vibration but gave no reason for that opinion. One of them (Macaulay, who made his inspection on 26th August, 1940) said in answer to the Court "The damage due to settlement and vibration are indistinguishable."

The respondents called one expert witness who made his examination on 9th December, 1940. In his opinion the damage was due to subsidence and not vibration and he gave reasons for his opinion.

The trial Judge rejected the evidence of the appellant and his expert witnesses, accepted the evidence of the respondents' expert witness and gave judgment for the respondents.

The appellant has appealed on the grounds that the trial Judge was wrong in finding that the damage was not due to vibra­tion and that his finding was against the weight of the evidence. In our opinion there was ample evidence on which the Court below could reach the conclusion it did; it was a question of fact and the­ trial .Judge found that the appellant had not proved 'his case. We see no reason to interfere with his finding. pg 163

Appellant's counsel at the hearing of this appeal has contended  that the respondents' letter of 10th January, 1938, (Exhibit " F") was a clear admission of liability and an undertaking to  repair and that the trial Judge was wrong in holding that the S.C.O.A. damage was not due to vibration in view of the very clear admissions in this letter. We do not find this contention well  founded. Even if this letter admitted that the appellant's house had suffered some damage by the respondents' building operations and gave an undertaking to repair such damage, it gave no indication of the nature or extent of the damage admitted and it is evident that, in the event of subsequent dispute, the question what damage had in fact .been done would have to be ascertained.

The letter could not surely be construed as an undertaking to repair any damage of which the appellant might choose to complain.

The respondents did in fact later question what damage, if any, had been done. The appellant then brought his action and the Court below found that the appellant had failed to prove that any damage had actually been caused.

The fact that the respondents in their letter " F " appear to admit some damage can make no difference if as is the case no damage was in fact proved. The trial Judge referred to this letter as a promise" in writing in somewhat vague terms to make " good any damage to plaintiff's premises caused by their operations "; this in our opinion is the correct construction of the letter in question.

The fallacy in the appellant's argument seems to be treating letter" F " as proof of his claim; it is not proof but evidence.

It is also clear that it may be shown that an admission was made under the erroneous view of the party's own liability (Newton v. Liddiard 12 Q.B. 925) and the two Exhibits before this Court read together support the contention that it was so made. '1'here is no suggestion that a cause of action arose upon these documents and they were only referred to as confirming a previous admission of which there was no evidence before the Court. The trial Judge considered this evidence with the other evidence and found for the respondents.

In our opinion he was right and this appeal fails with costs assessed at twenty guineas.