Damages-Mitigation of damages-s-Unlawful execution-Whether ther« u a
duty to mitigate by paying under protest.

Where an execution is levied under a decree which is ab initio invalid
and unenforceable, there is no duty to mitigate damages by paYing 1JDder
protest.

Appeal

April 16, 1931. Owen C.J.: On January 7, 1930 the District
Commissioner of Khartoum, by his authorized servants, attached c:er-

* Court: Owen C.J., David-Davis and Gorman JJ

tain movable property of the plaintiff in execution of a decree for
the payment of 172 P.T. That decree was ab initio invalid and
unenforceable. The attachment appears to have consisted of listing
and marking certain movables only. On January 16 the plaintiff
applied to the Chief Justice for an order staying the execution. The
order was immediately granted, and was communicated to the Mudiria
at Khartoum, presumably on the morning of January 18. Nonetheless,
on January 18, at 5 P.M. the District Commissioner's servants, again
duly authorized, entered the plaintiff's premises, a shop in Victoria
Avenue, seized the articles attached and removed them. The articles
consisted of four show cases and a desk, and they were seized and
removed during business hours, whilst customers of the plaintiff were
being attended to.

It is not disputed that the seizure and removal of these articles
was wrongful. The sole question therefore for determination in this
appeal is whether the Judge of the High Court, in assessing the amount
of damages which the plaintiff is entitled to recover from the Govern-
ment, has done so in accordance with the correct principles of law
applicable to the facts of the case. The learned .Judge has divided
the damages into special damages and general. The special damages
are in respect of the cost to the plaintiff of replacing the goods re-
moved. That cost was agreed at £E.64.80()' m/ms, and the learned
Judge has found that the plaintiff is entitled to that sum in full. The
general damages he has assessed at £E.5, and it is in respect of his
method of arrival at that sum that the important point in this appeal
arises. The learned Judge says in effect that he would have granted
the plaintiff substantial damages, had it not been for the fact that the
plaintiff, immediately on the seizure, did not pay the monies unlaw- .
fully adjudged to be due. He holds that it was the plaintiff's duty
to mitigate the damage by such payment.

It is perfectly true that the plaintiff is under a duty to take all
reasonable steps to mitigate the loss consequent on the defendant's
wrong, and he cannot recover compensation for any part of the damage
which is due to his neglect to take such steps. But it must be
remembered that the act which has given rise to this claim took place
in the evening of January 18. The damage was done then and
there, and the plaintiff could not mitigate damage when the trespass
had already been committed, and the full amount of damages in-
curred. The damages were not Increased by the plaintiff's. failure to \ .
pay under protest or otherwise, and the principle to which I have \
referred cannot apply.

It has been contended, and certain passages in the judgement lend
colour to the contention, that the principle should be extended in such
1\ way as to impose a duty on a plaintiff, who has reasonable cause
to anticipate a Wrongful act, to mitigate or avoid the possibility of
damage by paying an unlawful demand under protest. I can find
no authority for such a proposition, and I do not think it can seriously
be said that, if you do not yield to an unlawful demand or threat,
you will be answerable yourself for those consequences which are
attributed to your failure to yield. In this case an unlawful demand
was made on January 7, and was accompanied by a threat which
took the form of listing and- marking certain articles in the plaintiff's
shop. The plaintiff took steps to get this execution stayed, and sue-
_ceeded in his application. After that order of stay had been received,
the defendants did the act which caused the damage. The plaintiff
was never under any obligation at all to pay the sum demanded and
he was under no obligation to anticipate that the defendants would
commit the wrong they did. The duty to mitigate arises after the
Wrong has been committed, and not before it. The learned Judge says
that the plaintiff acted reasonably in deferring payment till .the date
of the seizure. Surely he also acted reasonably in his natural ex-
pectation that the defendants would not commit the wrong they did,
especially in view of the order of stay that he had obtained two
days previously. I am of opinion therefore thatithe learned Judge
was wrong in holding that the failure of the plaintiff to yield to this
unlawful demand by the defendants only entitles him to nominal

   damages.                                                    .

Both parties have appealed from the decision, the plaintiff on
the ground I have. stated, and the defendants on the ground that, if
the principle of so called mitigation is applied to general damages,
it follows that it should be equally applied to special damages. I
am not quite satisfied that there exists such a thing - as nominal
special damages, but in any event it is unnecessary to decide the
point in view of my opinion that the principle of mitigation of damages,
consequent on a wrongful act by a defendant, does not apply in this

        case at all.                                                             

David-Davis J.: I concur.

Gorman J.: I concur.