Singh v Kumbhar (Civil Appeal No. 7 of 1948) [1948] EACA 7 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and PEARSON, J. (Uganda)

NARAIN SINGH, Appellant (Original Defendant)

## ISMAIL SULEIMAN KUMBHAR, Respondent (Original Plaintiff) Civil Appeal No. 7 of 1948

## (Appeal from decision of H. M. Court of Zanzibar)

Damages—Contract to repair motor bus—Failure to repair or undue delay in effecting repairs—Negligence—Loss of profits—Appeal against quantum— Principles on which Appellate Court acts—Quantum reduced—Costs.

The facts appear sufficiently from the judgments.

Held (7-7-48).—(1) Per Nihill and Edwards, C. J. That the Court of Appeal will not reverse a judgment of the Court below on a question of damages unless it is satisfied either that the judge acted on some wrong principle of law or that the amount awarded was so extremely large or so very small as to make it an entirely erroneous estimate of damage. Flint v. Lovell (1935) 1 K. B. 360 followed. Rook v. Fairrie (1941) 1 A. E. R. 297

followed.

(2) Per Nihill, C. J.—Whilst it would be difficult to maintain that in awarding the damages that he did the learned trial Judge acted on any wrong principle of Law, nevertheless, in accepting the Plaintiff's valuation without any supporting evidence there is such a high probability that he did arrive at an erroneous estimate that the Appellate Court is justified in intervening.

Dictum of Goddard, L. C. J., in Bonham-Carter v. Hyde Park Hotel, Ltd., 64 T. L. R. 178 quoted.

Appeal dismissed. Damages reduced and each party to bear his own costs of appeal. (3) Per Pearson, J., dissenting.—That the damages awarded by the trial Judge were not excessive.

Parekhji for the Appellant.

Respondent absent, unrepresented.

SIR BARCLAY NIHILL, C. J.-I have read the judgments of my brothers the Chief Justice of Uganda and Pearson, J., and I agree with them that this appeal must be dismissed, each side to pay their own costs.

On the question of damages I have felt in some difficulty, but I have come to the conclusion that the reductions proposed by the learned Chief Justice of Uganda are just and reasonable and should be allowed by this Court. There is authority for saying that a Court of Appeal will not reverse a judgment of the Court below on a question of damages unless it is satisfied either that the Judge acted on some wrong principle of law or that the amount awarded was so extremely large or so very small as to make it an entirely erroneous estimate of damage (Flint v. Lovell, 1935, 1 K. B. 354—Rook v. Fairrie, 1941, 1 A. E. R. 297).

It would be difficult to maintain that in awarding the damages that he did that the learned trial Judge acted on any wrong principle of law. Nevertheless, I consider that in accepting the Plaintiff's valuation without any supporting evidence there is such a high probability that he did arrive at an erroneous estimate that this Court is justified in intervening. I am fortified in my view by a recent dictum of Lord Goddard in the case of Bonham-Carter v. Hyde Park Hotel, Limited, reported in Volume 64 Times Law Reports at page 178:—

"On the question of damages I am left in an extremely unsatisfactory position. Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court, saying: 'This is what I have lost; I ask you to give me these damages'. They have to prove it. The evidence in this case with regard to damages is extremely unsatisfactory."

On account of the considerations pointed out by my brother Edwards I considen that the position in this case is very similar, and if the small reduction now made by this Court results in a higher standard of proof being both offered and required in future in actions of this character the effect of this judgment should be salutary.

EDWARDS, C. J.—This is an appeal from a judgment of H. M. High Court. of Zanzibar whereby the Defendant (now Appellant) was ordered to pay to the Plaintiff (now Respondent) the following sums: (i) Sh. 3,500, the value of a bus: (ii) Sh. 2,400, being loss of profits less Sh. 300 which was awarded to the Appellant on his counter-claim; and (iii) costs of the action. It is unnecessary in this judgment to deal with the facts. Suffice it to say that, shortly stated, the Respondent's claim arose from his taking his motor bus to the Appellant for repairs. The learned Chief Justice of Zanzibar, who was the trial Judge, found that the Respondent had taken his bus to the Appellant for repairs, and that the Appellant had failed to repair or unduly delayed in effecting the repairs. It is impossible for an Appellate Court to interfere with these findings of fact. Many grounds of appeal are set out in the memorandum of appeal, some of which, in my opinion, are untenable if not quite frivolous. It is only fair to Mr. Parekhji, who conducted the Appellant's case before this Court with ability, to say that he was not the advocate who either drew up the memorandum of appeal or who conducted the Defendant's case in the trial Court. It was part of the agreement between parties that the present Respondent should pay Sh. 300 for the repairs. When the appeal came on for hearing before us Mr. Parekhii asked us to hold that the plaint disclosed no cause of action inasmuch as it did not disclose that the Sh, 300 was tendered with the plaint. The argument is that, as the Defendant had clearly a lien on the motor bus to the extent of his charges for repairs, in this case agreed at Sh. 300, he was entitled to keep the bus till the Sh. 300 was tendered in cash. Moreover, it is said that, since the Respondent was allowed to sue in *forma pauperis*, it is fair to infer that he was not likely to have been able to tender Sh. 300 in cash at the time he commenced the present action, the subject of this appeal. Mr. Parekhij, in the alternative, asked to be allowed to amend the memorandum of appeal to enable this point to be taken and argued. Now, it may well be that, if this point had been taken when appearance was entered, or at the time of filing of the written statement of defence, or if, at an early stage in the litigation, the Appellant had moved the Court to strike out the plaint, success might have attended one or other of those suggested processes; but, in my view, it is much too late now to ask us to exercise the powers given to us by the Rules of Procedure to amend the memorandum of appeal. To do so would be to alter the whole course of the litigation as it proceeded in the Court below.

One ground of appeal is that the learned trial Judge erred in not accepting a certain ledger account in proof of a counter-claim set up by the Appellant. The trial Judge has in his judgment given reasons for not being satisfied on this point and I find it impossible to hold that those reasons are not valid ones. Although Mr. Parekhji strenuously argued that there was no evidence, or at any rate insufficient evidence, to show either that his client was negligent as a baileeof the bus or that the bus did deteriorate as a result of being kept out in the open. I am not satisfied that the learned trial Judge was wrong in fact or in law in the conclusions at which he arrived.

Mr. Parekhii strenuously argued that the Court below erred in allowing any sum at all as damages for loss of profits since no notice had ever been given to the Appellant that he would be held so responsible, and no time limit was fixed within which the repairs had to be executed. We were referred to Section 46 Zanzibar Contract Decree and to Section 73 Indian Contract Act (see Pollock and Mulla (5th Edition), page 402 and to the rule in Hadley v. Baxendale). The learned Chief Justice of Zanzibar realized that no time limit had been fixed and said: "Consequently under Section 45 of the Contract Decree the contract was to be performed within a reasonable time, which as stated in Section 46 is purely a question of fact... Clearly the loss of profits of running the bus was within contemplation of the parties as a natural and probable result of the breach of the contract".

I am not satisfied that the learned trial Judge erred in making this pronouncement.

The only matters with regard to which I think the Court below erred are in awarding as much as Sh. 3,500 and in awarding as large a sum as Sh. 2,400for loss of profits. I was impressed by Mr. Parekhji's arguments on both points. As regards the item of Sh. 3,500. Mr. Parekhji's argument proceeds as follows, namely, "the sum of Sh. 3,500 was said by the Respondent to be the estimated value of the bus as in June, 1946; so how could it have been worth the same sum in November, 1947, if the vehicle had been running all that time; surely there must have been some depreciation?" This argument appears to me to have force and I would assess a figure of Sh. 500 in respect of depreciation, that is to say, I would allow Sh. 3,000 instead of Sh. 3,500 as the value of the bus. As regards the loss of profits the learned trial Judge accepted without reserveand without comment the Respondent's estimate of Sh. 15 a day. In fact, the judgment does not deal with the matter at all except to say: "On the evidence" before me I am satisfied that those damages should be assessed as follows, 'Loss of profits at Sh. 15 per diem'."

Now, it would appear that the evidence upon which the learned trial Judge relied was that of the Plaintiff himself; the Judge was, of course, entitled to believe the Plaintiff; but, in the absence of any other evidence whatsoever on a matter on which it was obviously in the Plaintiff's interest to put the figure at the highest, I consider that the Plaintiff should have been more closely questioned by the Court as to details. A witness for the Plaintiff, also a motor bus owner, said in evidence: "Last October I do not know how much I earned. My earnings are irregular. I cannot say what income I made out of this bus in May, 1946". The Plaintiff, who was closely cross-examined as to his outgoings such as petrol, etc., frankly admitted that he had not kept any accounts of the running of the bus. It seems obvious that, by reason of the bus not running while it was at the Defendant's place, the Plaintiff must have been saved quite a lot of expenditure. Moreover, it seems difficult to believe that the Plaintiff was not gainfully employed in another direction all the time the bus was out of action. Had the trial Court gone carefully into all these matters I feel certain that it would have realized that the Plaintiff's estimate of Sh. 15 per day was excessive. Little assistance can be derived from a consideration of English cases because there, if a jury award excessive damages, a new trial is ordered. I refer to the cases cited in the English and Empire Digest, Vol. 17, pages 167 et seq., and to Mayne on Damages 10th (1927 Edition) page 579. I think that this Court, if it thinks that the trial Court has omitted to consider matters which it should have considered and if it feels that the damages are excessive, can and should interfere. I would accordingly reduce the figure of Sh. 15 to Sh. 12 per diem. The figure of Sh. 2,400 awarded in paragraph $(b)$ of the judgment will thus become Sh. 1,920 and the figure Sh. 3,500 in paragraph (a) will become, as I have already said, Sh. 3,000. Subject to those two modifications, I would dismiss the appeal. There should be no costs of this appeal, that is, each party will bear its own costs of this appeal. In any event the respondent did not appear, nor was he represented at the hearing of this appeal.

PEARSON, J. (Uganda).—This petition discloses hardly any arguable point. The learned counsel appearing for the Appellant has not particularly argued them. He has confined his argument to a point of law not raised in the petition which we cannot entertain without notice of amendment to the Respondent, who is not represented—and to submissions on the quantum of damages, which. he submits are excessive and unsupported by evidence.

The learned trial Judge found the Defendant-Appellant liable to put the vehicle in running order and not only to renew the pistons. There was evidence by the Appellant himself, that he (Appellant) told the Respondent "what was required", i.e. pistons. The vehicle was then neglected by the Appellant, for many weeks left out in the open. From this it can well be deduced that the vehicle when taken to the Appellant required only pistons to put it into running order, and anything it subsequently required arose out of the Appellant's negligence.

It appears that the learned trial Judge awarded to the Respondent the utmost that he could assess. This he did because he found the Appellant's conduct highly tortious and negligent, and that the Respondent had been very badly treated by him. This conclusion he was best able to form from the witnesses and their evidence. He has accepted the Respondent's figure of Sh. 15 per diem net profits on running the bus. As the Respondent's was the only evidence of this, I cannot disagree with the learned trial Judge's acceptance of it and have no grounds on which to find it excessive. He also awarded to the Respondent the full value of the bus as claimed by him—Sh. 3,500—without any deduction in respect of depreciation. If the bus had depreciated in value I should find it very difficult to assess it without further evidence. On the other hand many kinds of property have appreciated in value since June, 1946: whether buses in Zanzibar have appreciated or depreciated I know not, and in any case could not assess either; I would not interfere with the learned trial Judge's acceptance of the valuation before him.

I do not think the damages awarded are in excess of the damage alleged and supported by the evidence: they are by no means the full amount claimed.

I would dismiss the appeal.