(COURT OF APPEAL)

HAMIDA ABDALLA OSMAN v. SUDAN DEMOCRATIC REPUBLIC

AC-REV-709-1969

Principles

  Damages—Pleadings—Factors other than negligence added to damages need not be pleaded—They are mitigating factors and not a defence

Factors other than negligence added to the damages need not be expressly pleaded, because they are categorized as factors in mitigation of the damages and not as a defence.

Advocates: Abdel Rahman Yousif & Gasim for the applicant Fadlalla Mohamed Fadlalla ... for the Advocate-General

for the respondent

Judgment

Dafalla El Radi Sidig J. April 26, 1970 : —Applicant is impeaching a decree by District Judge, Omdurman, whereby she had been party non-suited. His Honour the Province Judge ordered that the case be remitted for hearing evidence in so far as the damages are concerned.

The facts are simple. Applicant let her house to respondents, who allotted it to some students to reside therein. Owing to negligence of the inhabitants substantial damage to the house had been done. The District Judge passed a decree for applicant which applicant contested before the Province Court. While applicant sued for £S.2,615.000m/ms the decree passed in her favour is for £S.720.000m/ms.

It is contended for applicant that the District Court erred in lowering the damages to one half. It is further stated that the District Court disregarded the testimony before us and raised the question as to part of the damage being the result of the forces of nature. Hence there is no place for the presumption of the District Court. In reply it is stated that some of the witnesses mentioned that there are factors other than respondent’s negligence which could contribute to the damage.

To put our finger on the legal issues as I can see it; this controversy gives rise to the issue as to whether respondent is bound in law to plead expressly that facts other than his negligence added to the damage. Indeed, the nature of the plea in issue may be legally categorized as a statement in mitigation of the damage. Respondents are trying to say, in other words, that the damage owing to natural forces and ordinary use of the premises should be deducted since they are not responsible for them. As a matter of law such matters need not be expressly pleaded. To quote Mayne and McGregor, Damages (12th ed., 1961), p. 822:

“the rule built up by the Common Law is that matters in bar of the action must be pleaded but matters in mitigation need not

Even where the defendant omits to plead matters which constitute a defence he has been allowed to prove such matters in mitigation although no longer able to set it up as a defence.”

Again to quote Mayne, supra (at p. 67) it stated that even if the plaintiff proves that the damage is not too remote yet he may still fail to recover if he is unable to prove the damage with certainty.

Since the purpose of awarding damages is restitutio in integrum, and that negligence is based on causa causans, it would he unjust to hold a defendant responsible for the damage which would have any way occurred even if the defendant was not negligent. See also the discussion of remoteness of damages in the celebrated case of Hadley v. Baxendale (1954) 9 Exch. 341—Cheshire and Fifoot, Law of Contract (6th ed., 1964), p. 515.

Having perused the record, I found that some witnesses mentioned that factors other than respondent’s negligence contributed to the damage for instance one Abdel Haleem Abbas and one Yousif Malik. I agree with the learned District Judge that for justice’ sake respondent cannot be made to pay for all the damage, but disagree with him in two aspects. First, the learned District Judge reduced the damages by half, a matter which he did arbitrarily, since there is no evidence to justify such a reduction. He ought to have acted judicially. Secondly, since the learned District Judge decided to reduce the damages, he could have asked the seven witnesses who appeared before him on the question and could have judicially had ascertained the ratio of the damage which could be attributed to the forces of nature and the natural user of the premises. Hence, it is inevitable that the case should be remitted on this point for an assessment of the damages in the light of evidence before the court.

It is further contended for applicant that by remitting the case, His Honour the Province Judge contradicted his order in a previous revision which had been upheld by the Court of Appeal in AC-REV-173-1968. The revision referred to dismissed an application by respondents to furnish evidence in defence. The Court of Appeal dismissed a similar application by respondents on the ground that they acted not only carelessly, but they were resorting to dilatory tactics. However, I could not convince my mind to agree with the learned counsel for applicants argument. First, the record shows that the District Judge abided by the order and no witnesses for the defendant were heard. Secondly, no new witnesses may be need, because the court would resummon the witnesses already heard or some of them in so far as the damages are concerned. This it is inevitable for justice’ sake to do. Otherwise the learned District Judge could have cleared the question of the damages with the witnesses already heard, hence respondent is not to blame for this, rather the court is to blame.

It is also asserted for applicant that the District Court ought to have calculated the average of the damages as estimated by the various wit nesses of applicant. I agree that the District Court ought to have com pared and contrasted the evidence in detail and then to have come to a conclusion. The fact that the testimony of one witness is more detailed is no good reason all by itself to justify giving it more weight than the other testimony. Hence, this is also a ground for remitting the case for a reasoned estimation of the damage. This point directs the mind to the point preceding it. Thus, having raised such a point the learned counsel for applicant cannot be heard to raise the objection based on the AC-REV-SoI-1968, because he will find himself in a paradoxical situation—or else what does he mean by raising the latter point?

In so far as the damages for breach of tenancy agreement and failure to evict are concerned, with all due respects I disagree with the learned District Judge in his reasoning. He stated on page 2 of the judgment that applicant served notice to quit on the respondents and this they did a little time after the expiration of the two months. I lay emphasis on the words a little time after the notice. Despite this finding the learned District Judge found for respondents. Naturally, this is wrong. At least the court ought to have made respondent pay for the time after the notice expired. Even more the fact that respondent failed to quit in the specific time of the notice. No matter how short the excess is, it makes them statutory tenants in the eyes of the law once the contractual agreement came to an end. Hence, the tenancy is renewed. Now the onus of proof should be cast on applicant to prove that she mitigated the damages or tried to do so by trying to find tenants for the premises. Her failure to do so will render her only entitled to nominal damages. Other wise she may be entitled to damages assessable in the light of the circumstances and facts proved. This point is also a justification for remitting the case. It may be that this suit had taken a long time in the courts, but that should not stand in the way for an appropriate decision in it.

Ergo, in the light of the facts adumbrated above this suit ought to be remitted for implementing this judgment.

No order as to costs.

Tawfik Abdel Mageed J. May 2, 1970:—I concur. The learned District Judge has no justification for reducing the damages by half; he ought to have found the formula or the ratio between damages caused by negligence of tenants and damages which could fairly be attributed to forces of nature.