THE COOPER MOTOR CORPORATION LTD. v MOSHI/ ARUSHA OCCUPATIONAL HEALTH SERVICES 1990 TLR 96 (CA)

 

THE COOPER MOTOR CORPORATION LTD. v MOSHI/ ARUSHA OCCUPATIONAL HEALTH SERVICES 1990 TLR 96 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Ramadhani JJA and Mnzavas JJA

B 17 August, 1990

Flynote

Contract - Damages - Loss of use - When damages awardable.

Contract - Damages - General - Whether need be specifically pleaded.

Contract - Damages - General - Quantum - Circumstances under which appellate court may disturb the quantum of general damages awarded by lower court.

-Headnote

The respondent' s motor vehicle was involved in an accident. The vehicle was driven and delivered to the appellant for repair estimates. While there the engine of the vehicle was stolen. The respondent then towed away the vehicle and sued the appellant in the High Court which found that the appellant had breached their contract of bailment and held them liable for Shs. 5,000/= being the price of a new engine, Shs. 54,000/ = for loss of use of the vehicle from E the time the engine got lost to the time of filing the suit and shs 600,000/= general damages from 1980 to the date of judgment in 1988.

The Court of Appeal considered two issues: First, whether the award of shs. 54,000/= for loss of use was justified; F and second, whether general damages were specifically pleaded and the propriety of the quantum awarded.

Held: 

(i) As the respondent could not have used the vehicle even with its engine intact because of the accident sustained earlier on he should not be allowed anything for loss of use;

(ii) general damages need not be specifically pleaded; they may be asked for by a mere statement or prayer of claim;

(iii) whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting H a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case ... Before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as taking into account some irrelevant factor or leaving out of I account some relevant one); or short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage;

(iv) in addition to the trial judge taking into account an irrelevant factor (considering the period covered to be up to the time of judgment instead of up to the time the vehicle was towed away), considering matters of which there was no evidence, it is our opinion that the amount awarded is inordinately high.

Case Information

Appeal allowed in part.

Ngalo, for the appellant

Shayo, for the respondent.

[zJDz]Judgment

Ramadhani, Kisanga and Mnzavas, JJ.A.: The appellant, the Cooper Motor Corporation Ltd., is a limited liability Company, specialist in Volkswagen Vehicles, among others, with a branch in Moshi. The respondent, D Moshi/Arusha Occupational Health Services, is also a limited liability company based in Moshi too. Volkswagen Combi bus of the respondent with registration number TZ 44059 was involved in an accident on 27/5/1980 and consequently was driven and delivered to the appellant on 24th July, 1980 for repair estimates after it had stayed E for almost two months at another garage. On or about 17th November, 1980 the appellant informed the respondent that the engine of the said vehicle had been stolen while in their (appellant's) possession and custody. The respondent after some communication with the appellant filed a suit on 25th April, 1981 and on 10th March, 1982 towed the bus away from the premises of the appellant. The High Court of Tanzania at Arusha (MWAKIBETE, J.) found that the appellant had breached their contact of bailment with the respondent. He held them liable for Shs.45,000/= being the price of a new engine; Shs.54,000/= for loss of use of the vehicle from the time the engine got lost to the time of filing the suit and Shs.600,000/= general damages from 1980 to the date of judgment in G 1988. This appeal is from that judgment.

At the start of hearing this appeal Mr. Ngalo, learned decease for the appellant, left no stone unturned and no outlet uncooked endeavouring to persuade us to find that there was no contract of bailment at all. However, due to the H probings from the bench, he conceded, rightly too in our opinion, that there was a contract. He also conceded to the award of 45,000/=. Thus he abandoned three out of his seven grounds of appeal. The remaining four grounds deal with damages and conveniently settle down to two issues. First, was the payment of Shs.54,000/= for loss of use justified? Second, were general damages specifically pleaded and, in any case, was the quantum awarded proper?

Regarding the loss of use Mr. Ngalo submitted that the vehicle was damaged and was therefore not usable. The respondents had to incur these expenses in any case even if there was no breach of the contract of bailment. Mr. B Shayo learned advocate for the respondents, repeated that the respondent had to hire transport and so must be recouped their expenses from the time the engine disappeared to the time of filing the suit.

Admittedly as this vehicle was off the road alternative transport had to be hired as evidenced by receipts (Exh.P5). C But this was not because of the theft of the engine on 17/11/80. On the contrary this was a result of the accident that damaged the bus on 27/5/80. We ask why damages are sought for the period from the date of the theft of the engine and not before that. Hulsbury's Laws of England 3rd Ed. Vol. II p. 233 paragraph 400 says:

The fundamental principle by which the Courts are guided in awarding damages is 'restitutio in integrum'. By this is meant that the law will endeavour, so far as money can do it, to place the injured person in the same situation as if the E Contract had been performed....

In the instance case of a contract of bailment, the bailee i.e the appellant had the duty under sec. 103 of the Law of F Contract Ordinance (Cap.433) to: ... take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take G of his own goods of the same bulk, quality and value as the goods bailed: (The proviso is not relevant).

"Restitutio in intergrum" demands that the value of the engine in terms of money be paid. As the respondent could not have used the vehicle even with its engine intact because of the accident sustained earlier on, he should H not be allowed anything for loss of use. So shs. 54,000/= is disallowed. As for the general damages Mr. Ngalo made three submissions. First, he said that these are required to be specifically pleaded in the plaint and not merely being mentioned in the prayer. He cited Bullen & Lake and I Jacob's Precedents of Pleadings 12th Ed. at p. 379 and Perestrello Companhia Limitada v United Paint Co. Ltd. [1969] l . W.L.R 570. Second, he submitted that even if there is a finding for general damages the period over A which they are granted should be from the time of the theft of the engine to the time the vehicle was taken away by the respondents and not to the time of the judgment of the High Court. This was conceded by Mr. Shayo.

Lastly, B he argued that there was no evidence on which an assessment of general damages to the tune of the shs.600,000/= could have been made. He pointed out that the award is out of proportion to shs. 45,000/=, the value of the stolen engine.

Mr. Shayo, on the other hand, drew the attention of the court to the fact that the passage cited by Mr. Ngalo in C Bullen and Lake refer to special and liquidated damages. General damages, he said, are provided for in another passage which state that they are not required to be specifically pleaded. In any case, Mr. Shayo argued, general damages have been pleaded in paragraph 9 of the plaint and then in the prayer in paragraph 11. As to the third point. Mr. Shayo agreed that there was no evidence to support the comments of the learned judge in awarding the general damages. However, he pointed out that they are not excessive and that an appellant court should only disturb an award if it has been granted on a wrong principle (Davies v Powell [1942] 1 All E.R.657 at 664/5). Moreover, Mr. Shayo submitted, the lower Court was entitled to take devaluation into account National Bank of Commerce v Parma Shoe Company - Civil Appeal No. 11/88 of CAT - unreported).

The first issue we have to consider is whether or not general damages require to be specifically pleaded. We agree with Mr. Shayo that the passage he had cited in Bullen and Lake p.379 is the relevant one and reads as F follows:

In claim for general damages, particulars will not be needed of the quantum of damages claimed (see London and Northern Bank Ltd. v George Newness Ltd. (1900) 16 T.L.R. 433, C.A.). On the other hand, the mere statement or prayer G of a claim for 'damages' will not support a claim for any particular injury or loss other than general damages (see Perestrello Companhia Limitada v United Paint Co. Ltd., [1969] 1 W.L.R. 570).

It is abundantly clear from the above quoted passage that only general damages can be asked for by "a mere H statement or prayer of a claim" and this is what has been done in this case.

The case of Perestrello v United Paint Co. Ltd., which has been referred to in the above passage and also cited to us by Mr. Ngalo provides at page 579 thus:

There is plenty of authority for the proposition that a plaintiff need not plead general damage...

The learned judge, then went on the quote Lord Dunedin in Admiralty commissioners v S.S. Susquehann [1926] A.C. 655 at p. 661 who said: If damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question.

The learned judge after quoting the above passage gave an amplification: What amounts to a sufficient averment for this purpose will depend on the facts of the particular case. . .

We think on the facts of the appeal before us, which we have concisely narrated at the beginning, the word E 'inconvenience' in paragraph 9 of the plaint: As a result of the loss of the engine the plaintiff has been deprived the use of the motor vehicle and has been put to considerable expense and inconvenience. and the prayer (in paragraph 11 (b) for a "judgment against the defendants for general damages as the honourable Court may deem proper" is sufficient averment.

The second issue now is should we or should we not disturb the quantum of general damages. Mr. Shayo referred us to Davies v Powell [1942] . That decision of the court of appeal was approved by the privy Council in Nance v British Columbia Electric Raily Co. Ltd. [1951] A.C. 601 at p. 613 thus:

H ... Whether the assessment of damages be by a judge or a jury, the appellate Court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case... before the appellants court can properly intervene, it must be satisfied either that the judge, in assessing the damages, I applied a wrong principle of law (as taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this that the amount awarded is so inordinately low or so inordinately high that A it must be a wholly erroneous estimate of the damage ...

That position was adopted by the Court of Appeal for Eastern Africa in Henry Hiday Illanga v Manyama Manyoka [1961] E.A. 705 at 713. We are of the opinion that the principles stated are correct. . How applying the principles to the present case we are of the opinion that the learned judge took into account an irrelevant factor when he considered the period covered to be up to the time of judgment instead of up the time the vehicle was towed away which Mr. Shayo, as already said conceded to be the proper one. Then also the learned judge considered, albeit obiter, matters of which there was not evidence which again Mr. Shayo concerned. The learned judge said:

And in assessing general damages I take into account the circumstances under which the engine disappeared and the fact that the motor vehicle in question has consequently been lying idle all these years since 1980, to date, to the great inconvenience of the plaintiff company. Customers ought not to be unduly scared at the prospects of losing or having their motor vehicles cannibalised if left at the garage for purposes for which the garages are intended. I would award E shs.600,000/= in general damages ...

It is also our well considered opinion that the amount awarded is so "inordinately high". We agree with Mr. Ngalo that the award of shs. 600,000/= general damages does not bear any relationship to shs. 45,000/=, the value of the F stolen engine.

Mr. Shayo argued that devaluation was a factor to have been considered. We have never been able to lay our hands on the case he has cited. Mr. Ngalo claims that decision was alright as it pertained to the repayment of money. Be that as it may, that ought to have been an argument to seek the enhancement of monetary value of the lost engine. However, it was not advanced then. The amount awarded even now with the devaluation is "inordinately high". We therefore think that an award of shs.150,000/= will be the justice of the case.

Thus we uphold the award of shs 45,000/= being the value of the lost engine, we strike out the award of shs. 54,000/= for loss of use and we reduce general damages to shs.150,000/=. As the respondent has substantially won the appeal we allow him to have his full costs both here and in the court below.

Appeal allowed in part.

1990 TLR p102

A