E. K. Odulaja V. A. F. Haddad (1973)

G. IRIKEFE, J.S.C 

Before the High Court in Ibadan, the appellant and respondent herein were respectively plaintiffs in two cross actions which were subsequently consolidated for the purpose of trial. The appellant succeeded in his claims while those of the respondent were dismissed. The respondent, being dissatisfied with the decision of the Ibadan High Court, appealed to the Western State Court of Appeal on a number of grounds, but that with which this appeal is concerned, and on which it was in fact allowed, reads thus:-

“Ground “8” The learned trial Judge erred in law and misdirected himself on the facts when he awarded 900pounds as special damages for loss of rent when there was no evidence to support such award.”

The finding of the Ibadan High Court, in so far as it is relevant to the issue raised in this appeal, reads:

“On the evidence I find as a fact that it was the defendant by himself and through his agents that prevented the plaintiff from letting out the flats for over 30 months. The defendant did not lead evidence to challenge the fact that the flats would have been let out at 15 pounds a month; and did not challenge the evidence given by the plaintiff to the effect that it was he and his agents that prevented him, the plaintiff, from getting to the floors and consequently from letting them out. In my view the claim of the plaintiff for 900 pounds as special damages is well founded.

It was clearly established both on the pleadings and the evidence before the court of trial that whereas the appellant was, as from 6th November, 1961, entitled to possession of the two top floors of the premises known as 47A Lebanon Street, Ibadan, he was effectively prevented from doing so by the respondent until a court order made this possible on 11th May, 1964 – a period of some 30 months.

There was also evidence before the court of trial, which was accepted, that because of lack of access to the two top floors during the period under review, no tenants could be procured for the rooms situated therein.

The case made on behalf of the respondent in the Western State Court of Appeal was that, even if it was assumed that the appellant was prevented from letting the property in dispute during the period of 30 months, there was no evidence before the trial court as to what rental value the property would have fetched at the material period.

What evidence there was, it was submitted, should be deemed to relate to the time when the appellant was testifying on oath in 1970 in respect of this action which was filed in 1967. On the above contention, it was urged on the Western State Court of Appeal that since the award of 900 was regarded as special damages, which required to be strictly proved in law, there was in fact no such proof before the court of trial. The above contention was upheld by the Western State Court of Appeal and the award of 900 pounds was set aside.

This appeal has been brought only against that portion of the decision of the Western State Court of Appeal which disallowed the sum of 900pounds awarded as rent by the court of trial.

Learned counsel for the appellant, Mr. Bayo Oduwole, argued only ground 2 of the grounds of appeal filed, which ground reads as follows:-

“The learned Judges of Appeal erred in law and misdirected themselves when they hold inter alia that “the awards of 900 pounds (1800 Naira) as special damages were wrong as there was no evidence to support the awards” when in fact there is such evidence on record.”

In arguing the above ground, learned counsel referred us to the pleadings and the evidence given by the appellant as to the period when the property could not be let as found by the court of trial and also as to the rental value of the property as given in the said testimony. Learned counsel particularly laid stress on the fact that the evidence so given was neither challenged under cross-examination nor was any contrary evidence produced throughout the trial by the respondent.

It was further submitted that the record in the case on hand shows that the appellant is a trader and speculator in real estate and that, on the authority of the case of Adel Boshali v. Allied Commercial Exporters Ltd. (1961) 4 ANLR p. 917, we should hold, as was held in that case, that the appellant herein is an expert in the trade out of which this cause of action arose and, consequently, that the learned trial Judge was right in acting on uncorroborated but unchallenged evidence as to his loss of rent.

For the respondent, learned counsel Mr. Bola Ige, referred us to several portions of the printed evidence to show that, as the evidence of loss of rent did not relate to the period in controversy, that is November 1961 to May, 1964, it was necessary to have cross-examined the appellant on it; and indeed, that it would have been imprudent to do so.