IN THE SUPREME COURT OF NIGERIA
On Friday, the 18th day of February, 1977
Before Their Lordships
UDO UDOMA….. Justice, Supreme Court
CHARLES OLUSOJI MADARIKAN….. Justice, Supreme Court
MOHAMMED BELLO….. Justice, Supreme Court
WEST AFRICAN EXAMINATIONS COUNCIL
JOSEPH CEYLON KOROYE
The appeal is therefore allowed and the award of N300 as the assessed value of the documents is set aside.
CONTRACT – BAILMENT – Liability of Bailee in contract of bailment – The foundation of – Whether the party can be compensated in excess of the actual loss
Per BELLO, J.S.C. at P. 4, Paras. C-D.
The respondent was a candidate at the 1969/70 G.C.E. examination conducted by the appellant. He was examined in History, Government and Economics but he failed to score pass grades in all the subjects. As might be expected, the respondent was not satisfied with the results. He sent a letter dated 27th July, 1970, to the appellant protesting against the grades awarded him as he thought the grades fell short of his brilliant performances at the examinations and requesting the appellants to permit him to see his answer scripts. To reinforce his protest and claim to high scholarship, he attached to that letter for “perusal and return” the following documents:
(1) A complimentary personal letter of the Principal of Rapid Result College, London;
(2) Marked answer scripts from Rapid Result College, London;
(3) Marked answer scripts from School of Careers, Lagos;
He also enclosed therein a postage stamp worth 2/- for the return of the aforementioned documents.
Up to 31st January, 1972, the appellant did not return the documents to the respondent when his solicitor by a letter of that date demanded their return. By their reply dated 18th March, 1972, the appellants informed the solicitor that they had sent the documents by post to the respondent under the cover of their letter dated 7th August, 1970, a photocopy of which they attached to the reply.
The foregoing are the events that precipitated the respondent to institute this case in the High Court of Lagos. His claim was for the return of his documents or their value in the sum of N3000 and damages for their conversion and for wrongfully depriving him of them despite repeated demands for their return. In the alternative the respondent claimed the sum of N3000 as damages for loss of the documents caused by the negligence of the appellants, their servants or agents.
The respondent testified at the hearing that he did not receive the purported letter dated 7th August, 1970, of the appellant or his documents allegedly enclosed therein; that the appellant did not return his documents despite his repeated demands for their return. No evidence was given by the appellant at the trial.
The learned trial Judge found that the respondent proved having entrusted the appellant with the documents in question and that they had failed to return the documents to him on his demand for their return. He also found that the appellants failed to prove that the documents had been lost without any fault on their part. He thereupon found the appellants liable in detinue. He gave judgment for the respondent for the return of the documents, or, in default, awarded him the sum of N400 as damages with costs assessed at N180.
It is pertinent for the purpose of this appeal to set out in full the portion of the judgment of the trial Judge showing how he arrived at the award. The portion reads:
“In an action of detinue the judgment is framed in the alternative for the redelivery of the goods or the payment of their value as assessed and damages for their detention. The assessment of the value of such goods should be made at the date of judgment; Rosenthal v. Alderton and Sons Ltd., (1946) 1 All ER 583 CA. The plaintiff in this action has demanded the sum of N3000 being value to him of the documents which were not returned by the defendant. He gave no indication as to how he arrived at such a figure, nor did he explain the basis of his valuation. He also could not remember how much he paid for the correspondence courses in Lagos and London. It seems to me, however, that the plaintiff has grossly exaggerated the value of the documents, and this could lead to an absurd situation whereby the plaintiff would get more money than his normal loss through detention of the documents.
The learned counsel for the defendant, Mr. Alatishe has urged the court to dismiss plaintiff’s claim for N3000 because he said that the plaintiff has failed to give evidence upon matters on which the court could assess quantum of damages. But surely the difficulty in assessing pecuniary loss to the defendant is no good reason for its best to reach a fair assessment. The Supreme Court seem to support this approach in Messrs. Dumez (Nigeria) Ltd. v. Patrick Nwaka Ogboli (1972) 1 All NLR 241 when at pages 249 and 250 Lewis, JSC., said: –
‘It is axiomatic that special damages must be strictly proved and unlike general damages where, if the plaintiff establishes in principle his legal entitlement to them, a trial Judge must make his own assessment of the quantum of such general damages and on appeal to this court such general damages will only be altered if they were shown to be either manifestly too high or manifestly too low or awarded on a wrong principle ………………..’
Now, it must be remembered that this is not a case of valuable securities or goods with an ascertainable market price at a particular date, but concerns marked answers papers and testimonial and it is obvious that no one could attempt to do more than give an appropriate estimate of values of those documents. It seems to me that having regard to the circumstances of this matter and the nature of the documents, a sum of N300.00 should adequately compensate the plaintiffs as the value of the documents and damages of N100 for their detention. Accordingly, judgment will be entered in favour of the plaintiff against the defendant for the return of the documents or, in default, payment of the sum of N400.00 with costs which will now be assessed.”
The only complaint against the judgment made on appeal relates to the award of N300 as being the value of the documents. It is contained in the only ground of appeal argued, which reads:
“That the learned trial Judge erred in law when having found as a fact that the plaintiff/respondent gave no evidence as to the value of the lost written answer papers, he proceeded to fix a value.”
In his reply the respondent, who appeared in person, contended that the documents were very valuable to him and the learned trial Judge acted rightly in assessing their value.
This is a case of bailment. The law relating to the liability of a bailee for breach of a bailment is founded on the principle of restitutio in integrum, which means that the party damnified is entitled to such sum of money as would put him in as good a position as if the goods have not been lost or damaged. In other words, the law will compensate him for the actual loss he has suffered but will not enable him to make a gain as a result of the breach: Building and Engineering Holidays Scheme Management Ltd. v. Post Office (1966) 1 KB 247 at 261.
In the practical application of the above mentioned principle to cases where the bailees were incapable of returning the goods bailed, Judges have evolved rules for compensating the party damnified. These rules may be paraphrased thus: the general rule is that a bailee is liable for the value of the goods as assessed at the date of the judgment in the case: Rosenthal v. Anderson & Son Ltd. (1946) KB 374 at 377; but if the goods are of the types that are readily available in the market, then, he is liable for their market price and, if the goods are not so available but can be replaced, he is liable for the cost of replacement: J.E. Hall Ltd. v. Barclay(1937) 3 All ER 620 at 623; in appropriate cases where the person damnified suffered damage or loss of such a nature that it flowed directly from the breach, he may also recover such damages as may compensate his loss: General and Finance Facilities Ltd. v. Cook Cars (Romford) Ltd. (1963) 2 All ER 314.
It appears from the portion of the judgment of the learned trial Judge, which we have earlier on referred to, the learned Judge adverted his mind to the correct principle of law in stating that the appellant is liable to pay to the respondent the value of the respondent’s documents as assessed at the date of the judgment and damages for their detention. In the assessment of that value, however, the learned Judge fell into an error by treating the issue of the value as a matter of general damages. He thereafter relied on the pronouncement of this court in Messrs. Dumez (Nig.) Ltd. v. Patrick Nwaka Ogboli (1972) 1 All NLR 241 at 249, that a trial Judge must make his own assessment of the quantum of general damages where a plaintiff establishes in principle his legal entitlement to them and he thereby proceeded to make his own assessment of the value of the respondent’s documents when there was no evidence from which he could do so.
Dumez’s case was concerned with the assessment of the value of tree crops by the trial Judge in that case when there was no evidence of their value on the record. In setting aside the award made on that assessment, this court had this to say at p.249 of the report:
“To our mind it is clear that the learned trial Judge, having rejected the evidence of the plaintiff as to the value of the permanent crops, could not set himself up as a valuer to make an assessment of their value without evidence on the record upon which he could act enabling him to do so. The plaintiff not having seen fit to appeal against the refusal of the award of general damages must stand or fall on the award of special damages and on Mr. Emordi’s own concession, quite rightly in our view, the learned trial Judge was in error in coming to the conclusion that he did as he made an assessment without evidence before him of the amount at which he valued the respective permanent crops when he had already rejected the plaintiff’s valuation thereof.”
This court then proceeded to reiterate with great emphasis that special damages must be strictly proved.
In the case in hand, the learned trial Judge committed the same error as the trial Judge in Dumez’s case had done in assessing the value of the respondent’s documents without any evidence of their value. It follows from the foregoing that the respondent having failed to prove the value of his documents, which is a claim for special damages, the learned trial Judge ought to have dismissed that claim.
With regard to the award of N100 as damages for the detention of the documents, we have no other alternative than to allow it to stand since there is no appeal against it. We, however, have some reservations about it.
The appeal is therefore allowed and the award of N300 as the assessed value of the documents is set aside. Accordingly, the judgment in favour of the respondent against the appellant in the sum of N400 is set aside and a judgment in the sum of N100 is substituted therefore. The respondent is entitled to the costs in the court below and the appellants are entitled to the costs of this appeal assessed at N176.
Chief Sobo Sowemimo…..For Appellant
Respondent in person…..For Respondent