Mougrabi V. Mansour (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Damages for unlawful attachment—Strict proof of special damage–Loss of reputation as trader must be proved as special damage—Award of damages at variance with the finding—Loss of profits due to Court’s Order not to Appellant’s unlawful act.

Held : Appeal allowed. Remitted to Court below for reassessment of damages.

The facts of this case are sufficiently set out in the judgment. E. 0. Asafu-Adjaye for Appellant.

S. P. Dove (with him B. K. Tamakloe) for Respondent. The following judgment was delivered :-

PETRIDES, C. J., GOLD COAST.

This is an appeal from a judgment of the Divisional Court held at Kumasi whereby the respondent was awarded £400 special and £50 general damages in respect of an attachment of plaintiff’s stockin-trade and furniture which the learned trial Judge found had been illegally made.

From the Appeal Record it appears that on the 29th October, 1934, the appellant, by his attorney, G. B. Moukarzel, issued a writ of summons in the Police (now District) Magistrate’s Court in Kumasi against the respondent for the recovery of the sum of £33 9s. 1d. The next day Mr. Asafu-Adjaye, Counsel on behalf of appellant, moved the Magistrate’s Court praying the Court to call upon respondent to furnish security to fulfil any decree that might be made against the respondent in that suit, and on his failing to give such security to direct that the goods in the defendant’s store situate at Kumasi in the premises of S. D. Karam & Sons be attached until further order of the Court, and for any other order or orders as to the Court might seem meet. The Court thereupon ordered as follows :-

” Let this Motion be heard on notice. In the meantime there will be an Interim Injunction restraining the defendant or his agents from disposing of in any manner the defendant’s goods now lying in the defendant’s store situate at Kumasi in the premises of S. D. Karam & Sons.

” Hearing date : November 9th, 1934.”

The Registrar prepared a certified copy of the application and order (Exhibit ” C “) for service and instructed the bailiff to take an inventory of the stock. The bailiff, accompanied by the Sheriff’s clerk and Moukarzel, then went to the store. There the Sheriff’s clerk served Exhibit ” C ” on Choitram, the respondent’s representative

who was in charge of the store, and told him that he wanted to Mougrabi

v.

take the inventory and after that was taken he (Choitram) would mamma. be responsible for the stock. and that he was not to sell any of it.

Choitram apparently refused to accept responsibility for the stock, Petrides.C.J and the Sheriff’s clerk then sent the bailiff to report to the Registrar.

The bailiff saw the Police Magistrate, who thereupon made an order, Exhibit ” B,” which is in the following terms :—

” Whereas an Order dated at Kumasi the 30th day of October, 1934, has been issued under the hand of His Worship B. D. Austin Cathie, Esq., B.L., Acting Police Magistrate, at the instance of the plaintiff for the attachment of the movable property of the defendant, W. Mougrabi, in the above-named suit the said defendant is hereby prohibited from alienating the property below mentioned by sale, gift or in any other way and all persons are hereby prohibited from receiving the said property by purchase, gift or otherwise—that is to say :

” Goods in a store situate at Kingsway Street in the premises of S. D. Karam & Sons belonging to the above-named defendant.

” Dated at Kumasi this 30th day of October, 1934.

” (Sgd.) AUSTIN CATHIE,

Sheriff,

” Acting Police Magistrate.”

Exhibit ” B ” was posted on the door and the inventory commenced that day and completed the next in the presence of Choitram and Moukarzel or his clerk.

On the 15th December the matter came up before the Magistrate, Mr. Gregg, on an application by appellant’s Counsel—at the hearing of this application Mr. Idun applied on behalf of respondent to set aside Mr. Cathie’s order.. The Court’s order was in the following terms :—

” By Court :

‘ On hearing of Mr. Adjaye’s application, order at page 157 expires automatically.

” In view of the short pericid left up until hearing date I do not see it would be any great hardship on the defendant to continue attachment or to require security and attachment in lien thereof.

” Security to be furnished to satisfaction of plaintiff in the sum of 150 failing this attachment to issue against goods mentioned in affidavit.

” Costs to be costs in the cause.

On the 29th January, 1985, Mr. Gregg gave judgment on the appellant’s claim for £83 9s. 1d., awarding him £18 18s. with costs. The amount of judgment was paid, but not the costs, and on the 3rd February a writ of Fi : Fa : was granted in respect thereof. On the 29th February the goods were handed over to a licensed auctioneer with instructions to sell sufficient goods to cover the costs which apparently amounted to £41. The auctioneer sold sufficient goods to realise £49, and the remainder of the goods were still in his possession when the action was commenced.

By his writ dated the 25th February, 1935, the respondent alleged that on the 30th October, 1934, the defendant, by his servant and agent, G. B. Moukarzel, with his agent the Sheriff’s Officer, broke and entered the plaintiff’s store and seized the furniture, stock-in-trade and effects of the plaintiff contained therein and

deprived him of these things and the profits thereof from the 80th October, 1934, to the 3rd day of February, 1935, and the use of the store up to the commencement of that action. By this writ plaintiff claimed £700 damages, whereof he says (a) £400 was the value of the goods missing from the store, which at the time of the wrongful acts complained of contained goods to the value of £500 and (b) £300 was general damage.

The learned trial Judge held that :-

1. The order as to the interim injunction (Exhibit ” C “) was clearly illegal : the applicant did not ask for this order, and the mere fact that he asked for ” any other order or orders ” could not, in the Judge’s opinion, justify the grant of an interim injunction in the circumstances and the Magistrate could not base his order on Order 5, Rule 3 (old Supreme Court Rules), as that rule only applied in the absence of any special rules to guide it in dealing with the motion ; that such rules did exist in Order 13, which dealt with interim attachment of property.
2. There was a notice purporting to be an order of attachment but that in the Judge’s opinion there was no legal foundation for this and it was therefore illegal.
3. The defendant or. his attorney Moukarzel was responsible for. the illegal attachment as he knew that he had not obtained an order to attach the goods in the store, and that the so-called attachment order was brought to the store and upon which the store was sealed was not in order, as the Magistrate could not possibly vary the Interim Injunction Order unless and until the Court had been moved in the proper way—with all these facts within his knowledge he adopted everything that was done by the Sheriff’s Officer in the store.

Having come to the conclusion that the attachment made was illegal and the applicant was responsible for it and was therefore liable to the respondent, he proceeded to consider the question of damages. He found that the value of the goods seized was £416 14s. 2d. at the date of attachment, 29th October, 1934, and that none of these had disappeared when they were handed over to the auctioneer in January, 1935, but that they had very much depreciated in value by remaining in a locked store from October 1934 to January, 1935. He came to the conclusion that the unsold stock could be of no use to Mougrabi, who had been deprived of it at date of judgment for nearly twelve months and that the respondent had therefore suffered special damage to the extent of the value of the goods in his store, but as he had claimed only £400 on his writ as special damage he could only award him £400 damage under that head. As regards general damages, he held that the respondent’s reputation as a trader in Kumasi had been damaged and awarded him £50 general damages. He accordingly gave judgment for the plaintiff for £400 as special damages and £50 as general damages.

Whatever the effect of the orders of the 80th October was it did not entitle the Sheriff to enter upon the premises of the respondent, take an inventory of the goods and seal the premises and deprive the respondent of the use thereof. It is clear that he has acted illegally. The old Order XLIV, Rule 16, of the Rules of the Supreme Court rendered the person prosecuting the decree liable to any damages arising from any illegal or irregular proceedings taken at his instance. The only question we have therefore to consider is what damages was the respondent entitled to for the wrongful act committed.

The plaintiff is clearly not entitled to the special damages of £400 which he claims in respect of goods said to be missing, as the Judge has clearly found that none were missing.

There remains to consider what sum he is entitled to by way of general damages. Under this head he claims £300 and the Judge has awarded him £50 on the ground that his reputation as a trader was damaged. Now loss of reputation is in our opinion special damage which must be specially claimed, for the appellant could not be expected to come to the trial prepared to meet such a claim unless he had notice thereof. (See Mayne on Damages, 10th Edition, pp. 553 et seq.) No claim for special damages for loss of reputation as a trader having been made, we hold he was entitled to nothing under that head.

In considering what general damages respondent suffered we have to take into account that by the second order made on the 30th October the respondent was prohibited from alienating the goods in his store. This order was in the nature of an injunction, and in the opinion of this Court was binding on the appellant until set aside, and until then the respondent would have been guilty of contempt if he had disobeyed it. While this order was in force, and it must be observed it was never cancelled, the respondent was prevented by an effective order of Court from disposing of his goods and thus earning a profit : it follows therefore that the loss of profits was due not to the appellant’s unlawful act, but to the Court’s order. In these circumstances we consider that the respondent is not entitled to damages under that head.

The respondent has claimed general damages in respect of his having been wrongfully deprived of his furniture, stock-in-trade, goods and effects from the 30th October, 1934, to the 3rd February, 1935, and the use of his store to the 3rd February, 1935, and is dearly entitled to damages under this head.

We allow the appeal with costs and remit the action to the Court below to assess general damages in the light of the foregoing, taking into account the extent to which the goods have depreciated daring the period from the 30th October, 1934, to the 3rd of February 1.35, and bearing in mind that the claim for general damages is kmited to £300.

The costs of the first trial must be borne by the appellant. As

the amount thereof will depend on the damages that may be awarded

Manso

—by the Court, it will be necessary for those costs to be taxed afresh.