Sirajul Islam Chowdhury and others (Appellants)
Md. Jainal Abedin & ors (Respondents)
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md Abdur Rouf J
BB Roy Choudhury J
Judgment dated : November 21st, 1996.
Cases Referred to-
Overseas Tankship (UK) Ltd. vs. Morts Dock and Engineering Co. Ltd Wagon Mound (1961) AC 388—(1961) 1 All ER 404, PC: Overseas Tankship (UK) Ltd. vs. Miller SS Co Ply (The Wagon Mound No 2), (1967) IAC 617—(1966) 2 All ER 709, PC; Koufus vs. C. Czarnikow Ltd., (1969) 1AC 350—(1967) 3 All ER 686; Swordheath Properties Ltd. vs. Tabet and others, (1979) 1 A11ER 240; Yorkshire Electricity Board vs. Naylor. (1967) 2 AIIERI and Taylor vs. 0’ Connor, (1970) 1AI1ER 365. Salmond on Torts, 19th Edition (p.59); McGregor on Damages, 15th Edition, at p. 249; The Mediana (1900) AC 113 (116); Halsbury’ Laws of England (4th Edition); Salmond Torts at page 592 (19th Edition); Salmond Torts at page 593 (19th, Edition); Halsbury’s Laws of England (4th Edition) Vol. 45 paragraph 1403; Halsbury’s Laws of England, Fourth Edition, Vol.12 paras 1138-1140; paragraph 306 of Chapter XVII, pp. 761-763 of C Kameshawar Rao’s Law’ of Damages and Compensation; Halsbury’s Laws of England, Fourth Edition, Volume 12 on Damages; Halsbury’s Laws of England; McGregor on Damages (15th Edition).
Dr Kamal Hossain, Senior Advocate (Dr Zahir Senior Advocate & Mr AFM Hasan Arif, Advocate with him), instructed by Md Aftab Hossain Advocate-on-Record—For the Appellants.
Rafiq-ul-Huq, Senior Advocate instructed by Mvi Md Wahidullah, Advocate-on-Record–For the Respondents.
Not represented—Respondent Nos. 2-3.
Civil Appeal No. 45 of 1994
(From the Judgment and Order dated 26-1-94 passed by the High Court Division in First Appeal No. 215 of 1990)
Mustafa Kamal J: The only point for determination in this appeal by leave by the defendant-appellants is, it being accepted as a concluded question of fact that the defendant-appellants trespassed into the land of the plaintiff respondent and thus incurred a tortious liability which is actionable per se did the High Court Division take the right view in law and on facts in assessing the quantum of damages sustained by the plaintiff The plaintiff-respondent’s Money Suit No. 84 of 1986 for compensation and damages was decreed by the 2nd Court of Subordinate Judge, Chittagong by judgment and decree dated 20.9-90 for Taka 88,78, 800.00, affirmed on appeal, FA No. 215 of 1990 by a Division Bench of the High Court Division by judgment and decree dated 26-1-94, from which this appeal arises.
2. The plaintiff-respondent carrying on ship- breaking business under the name and style of Jainal & Sons filed the suit upon averments, inter alia , that he had a ship-breaking yard at Bhatiary, Chittagong comprising of top lands measuring 0.68 acres acquired from the owners thereof by registered kabalas of various dates from 16-1-85 to 20-6-85 as well as of foreshore land leased out to him in Eksona Lease Case No. 5 of 1984-85 measuring 5.0 acres containing a renewal clause at the option of the plaintiff. The plaintiff is an experienced ship breaking businessman and previous to the establishment of his own yard he carried on the same business by purchasing scrap ships and beaching and breaking the same on hired yards since several years last past. He obtained necessary permission from the Department of Industries, Government of Bangladesh on 29-7-85 (Exts. 5 and 5(a)) for setting up a ship-breaking industry at Bhatiary. He is also a member of the Ship-breaking Companies Association. The defendant-appellants had their ship- breaking yard to the south of the plaintiffs yard. The defendants developed jealousy at the plaintiff’s initiative in setting up a ship-breaking yard near their yard and turned inimical towards the plaintiff. With a view to causing loss to the plaintiffs business the defendant-appellants most illegally, wrongfully and forcibly beached one ship named ‘Banglar Kheya” belonging to/or controlled by the defendants which was lying in the sea in the week of January, 1985 into the south-eastern portion of the shipyard of the plaintiff ignoring the protest of the plaintiff and his employees. The plaintiff wrote to the Ship-breaking Companies Association protesting against the illegal and forcible action of the defendants and requested the defendants to remove the ship but although defendant-appellant No. 1 assured the plaintiff that they would remove the vessel but they did not live upto their promise. The plaintiff served a notice of demand dated 25-1-86, Ext 10; through his lawyer requesting the defendants to remove their scrap ship from the plaintiffs yard and asked them to pay a sum of Taka 58,00,000.00 as compensation upto 15-2-86 within 15 days. On further enquiry the plaintiff came to know that defendant-appellant No. 1 purchased the scrap vessel Banglar Kheya in January 1985 and that the appellant beached the said ship on the south eastern portion of the plaintiff’s yard in the last week of January, 1985. The defendant-appellant by their reply dated 6-3-86 (Ext. 10(a)) took a false plea to evade their liability by saying that the scrap vessel was driven to the plaintiff’s yard by cyclone and, as such, it was an Act of God. The plaintiff served a second notice on 26-3-86 (Ext. 10(b)) upon the defendant-appellants through Their lawyer repudiating the false plea of the defendants taken in their reply and demanding removal of the ship and compensation of Taka 98 lakh upto 15-4-86 and further compensation at the rate of Taka 22,200.00 per diem. The defendant-appellant neither gave a reply to the said notice Ext. 10(b) nor complied with the demand and hence the suit. The plaintiff averred further that ship-breaking business is a very paying business and by beaching and breaking a ship the plaintiff could earn a good profit in the neighborhood of Taka 40 lakh per ship within a period of 5/6 months. The plaintiff therefore prayed for a decree for a sum Of Taka 1,02,44,000.00 as per Schedule of Claim as also mandatory injunction directing the contesting defendants to remove the scrap ship Banglar Kheya from the yard of the plaintiff as well as permanent injunction restraining the defendants from breaking the scrap ship Banglar Kheya and/or beaching any other ship in the plaintiffs yard.
3. After denying all the allegations of the plaintiff in the plaint, the defendant-appellants in their respective written statements stated that the vessel Banglar Kheya was agrounded by cyclone in June, 1985 in the offshore near the ship-breaking yard of the plaintiff and the place where the vessel was agrounded was not within the yard of the plaintiff. The agrounding of the vessel did not create any obstruction to the movement of the plaintiff’s vessel to his yard as there are wide spaces in the coast or offshore. The alleged claim of the plaintiff is false, malicious and frivolous and they are the creation of the enemies of defendant-appellants No, 1 whose status in the society as an industrialist is envied by many including the plaintiff. The defendants have been illegally and wrongly impleaded in this suit which is liable to be dismissed with exemplary costs.
4. The plaintiff examined 3 witnesses and the defendants examined 2 witnesses. Both exhibited a fairly good number of documents.
5. Both the trial Court and the High Court Division concurrently held upon an exhaustive consideration of the oral and documentary evidence on record that the appellant’s vessel Banglar Kheya forcibly beached in the plaintiffs yard on 23-1-85. The appellant’s plea that Banglar Kheya was agrounded by cyclone and that the plaintiff did not suffer any obstruction thereby was rejected concurrently by the two Courts below. The High Court Division additionally found that the appellants used the plaintiff’s machineries lying in his yard while beaching and breaking Banglar Kheya, but there is no averment to that effect in the plaint itself, although the suit was filed on 5-5-86.
6. The trial Court by judgment and decree dated 20-9-90 decreed the suit for an amount of Taka 88, 78,800.00. The basis for the plaintiff’s claim of compensation @ Taka 22,200.00 per diem for 461 days is that he had been carrying on ship-breaking business from before. He filed Money Suit No. 48 of 1984 in the 3rd Court of Subordinate Judge, Chittagong against his partners in a ship-breaking business and the suit was decreed on compromise. The plaintiff had four annas interest in the said partnership business and he obtained Taka 15 lakh in his four annas share of profit in the said solenama decree. The trial Court found that Taka 2 lakh was the plaintiff’s investment in the said partnership business. Accordingly, his profit in that partnership business came down to Taka .15 lakh. The trial Court relied upon the Order Sheet dated 5-6-84 in the said money suit (Ext. 11), the photocopy of the Order Sheets dated 19-6-84 and 23-6-84 in that suit (Ext. 12), the copy of the solenama dated 5-8-84 (Ext. 14) and the subsequent agreement on the basis of the solenama (Ext. 13). Deducting Taka 2 lakh from the plaintiffs receipt of Taka 15 lakh the trial Court concluded that the plaintiff’s profit in the said partnership business was Taka 13 lakh and therefore his present claim of Taka 1,02,44,000.00 will be reduced proportionately to Taka 88,18,800.00. The suit was therefore decreed for the said sum.
7. The High Court Division relied upon ha plaintiffs first legal notice Ext. 10, the second notice Ext. 10(b) and Ext. 11, the copy of the C Sheet in Money Suit No. 48 of 1984 dated and held that “there were some reasonable basis for assessment of compensation in a case like rejected the appellant’s contention that there was basis for assessment of compensation at all. T reliance of the trial Court upon the compromise decree as the basis of assessing compensation in this case was held to be justified which the High Court Division considered not to be arbitrary or without any basis. Finally, the High Court Division held that “for ends of justice the compensation assessed by the learned Subordinate Judge should I maintained”. The High Court Division therefore dismissed the defendant-appellant’s appeal a affirmed the judgment and decree of the trial Court;
8. Leave was granted to consider the appellants’ submissions that before endorsing amount of compensation as allowed by the trial Court the High Court Division erred, in not at all considering the evidence on record, secondly, it, overlooking that there was no legal evidence worth the name in support of the plaintiff’s claim of alleged loss and damage, in that there being no evidence of actual loss and damage sustained by this plaintiff, the compensation assessed by the trial Court cannot be maintained merely upon a finding that “for ends of justice” it should be maintained thirdly, in not at all considering that the plain having admittedly broken one ship partly at Sandwip and partly in his yard and the other ship having never come to Bangladesh, his alleged loss cannot be based on a hypothetical use of his yard as he had no other ship to break, fourthly, in mindlessly relying upon Exts. 10, 10(a) and 11 which do not prove at all that the plaintiff got Taka 15 lakh as his 25% share of profit in a ship-breaking partnership business, fifthly, in not considering that the alleged office copy of the agreement subsequent to the compromise decree, Ext. 13, was not legally admitted in evidence and lastly, in not considering that the clad of the plaintiff as made out in the plaint and legal notices remained unsubstantiated by al dependable evidence in respect of quantum of damages and that those relied upon by the trial Court, affirmed by the High Court Division, could not form any legal basis for determining the same.
9. Before we proceed to examine the rival contentions of Dr. Kamal Hossain, learned Counsel for the defendant-appellants and Mr. Rafiq-ul-Huq, learned Counsel for plaintiff-respondent No. 1, it may not be out of place to state in a short outline the law on the basis of which damage is measured in respect of tortious liability, to put the appeal in its true perspective.
10. Trespass is a wrong in tort to another’s possession and it is actionable per se without proof of actual or special damage, because every person’s land is presumed to be surrounded by a fence, and the law encircles the land with an imaginary enclosure the violation of which is essentially an injury to the possessory right inhering in the plaintiff. It is not necessary, to maintain an action of trespass, to prove that the plaintiff suffered any actual loss. It is enough if he proves that he is in actual or constructive possession at the date of trespass and that the defendant has unlawfully disturbed his possession, the entry being either actual or constructive.
11. But although actionable per se the plaintiff has the option to claim damage in several ways. First, he may claim “nominal damages” which, according to Salmond on Torts, 19th Edition means “a small sum of money-for example, ‘one pound–awarded not by way of compensation for any actual loss suffered, but merely by way of recognition of the existence of some legal right vested in the plaintiff and violated by the defendant”. McGregor on Damages, 15th Edition, at p. 249 quotes Lord Halsbury LC in the Mediana (1900) AC 113 (116) as follows:
“Nominal damages’ is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a Fright to the verdict or judgment because your legal right has been infringed.”
McGregor then says: ‘Thus nominal damages may be awarded in all cases of breach of contract and in torts actionable per se.” (p. 249)
In Halsbury’s Laws of England (4th Edition) it is also stated as follows: “1170, Trespass to land. Particular rules have been evolved in cases of trespass to land. A plaintiff is entitled to nominal damages for trespass; even if no damage or loss is caused; if damages or loss is caused, he is entitled to recover in respect of his loss according to general principles.” (Vol. 12, p. 460).
12. Secondly, the plaintiff may claim “real damages” when his only right is not to be caused damage by the defendant, as in a case of negligence. In such a case he must prove actual damages. Damage then is the gist of the action. Salmond again says in Torts at page 592 (19th Edition):
“The general English rule today is that damages are compensatory, whether in contract or in tort. The function of damages is therefore to put the person whose right has been invaded in the same position as if it had been respected.”
13. Thirdly, the plaintiff may claim “general damages” as compensation for general damage and “special damages” for special damage. Again, Salmond says in Torts at page 593 (19th, Edition):
“General damage is that kind of damage which the law presumes to follow from the wrong complained of and which, therefore, need not be expressly set out in the plaintiff’s pleadings. Special damage, on the other hand, is damage of such a kind that will not be presumed by the law and must therefore be expressly alleged in those pleadings so that the defendant may have due notice of the nature of the claim the plaintiff will not be permitted to give evidence of it nor will the jury be at liberty to award compensation in respect of it.”
14. Fourthly, the plaintiff may claim “compensation damages” which are awarded as compensation for, and are measured by, the material loss suffered by the plaintiff. Fifthly, the plaintiff may claim “aggravated damages “which are given for conduct which shocks the plaintiff. Sixthly, the plaintiff may also obtain “exemplary damages” for conduct which shocks the jury.
15. There are other kinds of damages as well which are not material for our consideration at present. Halsbury’s Laws of England (4th Edition) Vol. 45 paragraph 1403 may be looked into for case-laws on various kinds of damages.
16. Let us now look at Schedule “B” of the plaint which gives the details of the plaintiff- respondent’s claim:
“Schedule “B” Claim of Compensation”
(a) Compensation and damages for wrong fully beaching
the scrap-ship “Banglar Kheya” in January, 1985 upto
15/4/1986 @ Taka 22,200.00 per diem amounting to….. Taka 98,00,000.00
(b) Compensation from 16-4-86 to date of filing of
the suit at the rate of Taka 22,200.00: per-diem
(20 X Taka 22,200.00 amounting to ……………..………… Taka 4, 44,000.00
_____________________ Taka 1, 02, 44,000.00
17. It is clear from the above that what the plaintiff claimed in the suit was not a nominal damage which he will receive in any case whether claimed or not, if he fails to prove his claim at Schedule B. He did not claim real damage, general damage, aggravated damage or exemplary damage. He claimed both compensatory damage and special damage rolled into one by way of indirect pecuniary loss.
18. It was incumbent upon the plaintiff to prove the indirect material loss suffered by him to enable the Court to measure in terms of money the damages sustained by him. Mere allegation of loss or damage will not suffice. Claiming a fanciful figure of loss per diem will not per se, without proof of the same, earn him a decree from the Court for the amount claimed, unless he substantiates the figure by adducing evidence.
19. The plaintiff’s claim is that he had at the material time two agreements (Ext. 9(a)) dated 17-4-85 and (Ext. 9) dated 7-5-85 for purchase of two scrap-ships, MV Reunion and MV Arcadia, which he could not beach and break in his shipyard owing to the appellants’ obstruction created by the deliberate intrusion of Banglar Kheya into his shipyard. The first ship MV Reunion, anchored at the outer anchorage, could not gain entry into plaintiff’s shipyard owing to the appellant’s obstruction. On May 9, 1985 she was carried away to Sandwip by cyclone. The plaintiff broke that ship partly at Kalirchar (Sandwip) and the remaining pan was brought back to the plaintiff’s shipyard after the defendant’s obstruction was removed at the end of 1986. The remainder of the ship was beached and broken in his yard. About the other ship MV the plaintiff stated as PW 1 in cross-examination that she did not come to Bangladesh. This is all the evidence on record.
20. The High Court Division did not look into this evidence, as has been rightly submitted by Dr. Kamal Hossain. From the said evidence on record it has not been established at all that the, plaintiff suffered a total loss in respect of beaching and breaking of MV Reunion. It establishes at best that for breaking the ship partly in a faraway place Kalirchar and for bringing the part of the ship back to his yard he had to incur additional expenses and that he perhaps sustained a loss of profit thereby, the business in that ship was not totally lost. The plaintiff stated in his cross-examination that he d not submit any account in the court relating to the breaking of the ship MV Reunion. That omission was fatal in respect of his claim of loss of business and profit in respect of MV Reunion. The plaintiff could have reasonably claimed his additional expenses for partly breaking the ship at Kalirchar the carrying costs of the remainder of the ship from Sandwip to Bhatiary and loss of time and loss profit resulting therefrom, but he did not formulate his claim that way and did not lead any evidence on this aspect of his loss either. His claim was that of a total loss of business and total loss of profit in respect of MV Reunion which is not borne out of his own evidence. He certainly broke the said ship albeit partly, in his own yard and partly elsewhere but it cannot be said that his business in respect beaching and breaking MV Reunion was totally lost We therefore find no basis and no evidence either Ice awarding him any compensatory and for special damages for indirect pecuniary loss by way of business and profit in respect of MV Reunion.
21. In respect of MV Arcadia the plain clearly stated in his cross-examination that the said ship did not come to Bangladesh. Mr. Rafiqul Huq, learned Counsel for the plaintiff respondent, submits that he has obtained a photocopy of the original writing of deposition by hand by the trial Court. It has been written in the deposition-sheet that MV Arcadia came to Bangladesh. He submits that there was a mistake in the paper book both in the High Court Division and before this Court and as a result there has been a misreading of this portion of the statement of PW 1 in his cross examination.
22. Dr. M Zahir, learned Counsel deputizing for Dr. Kamal Hossain during reply, submits that even if it is accepted that MV Arcadia made its entry into Bangladesh yet it cannot be said that the plaintiff did not lead any evidence that MV Arcadia was anchored at the outer anchorage and could not gain entry into the plaintiffs shipyard because of the obstruction created by the defendant. In the absence of such evidence, he submits, the mere entry of MV Arcadia into Bangladesh does not prove loss of business and profit in respect Of this ship.
23. Having considered that apart from the deed of agreement of sale of MV Arcadia (Ext. 9) the plaintiff has led no evidence that she could not enter into his yard owing to the appellants’ obstruction, we do not think that the plaintiff should be awarded compensatory or special damages for loss of business and profit in respect of the said ship as well.
24. The Courts below found that the plaintiffs basis of claim of loss at the rate of Taka 22,200.00 per diem is founded upon the compromise decree in Money Suit No. 48 of 1984, but it has not been so stated in the plaint. Having been taken by Dr. Kamal Hossain through the exhibits relied upon by the two Courts below we find that the petition of compromise of that suit and the solenama decree passed by the said Court thereon have not been made exhibits at all. The trial Court wrongly stated that Ext 14 is the copy of the solenama dated 5-8-84. Ext. 14 is a totally different Exhibit. The plaintiff as PW 1 clearly admitted in his cross examination that he has not filed the certified copy of the petition of compromise, nor has he filed any order of the Court in respect of the compromise. Mr. Rafiq-ul-Huq has submitted an application for acceptance of additional paper book wherein he has annexed photocopies of the petition of compromise dated 5-8-84 and the order of the Court passed thereon dated 6-8-84 making the solenama part of the decree, but it has nowhere been stated in the application that these documents were filed in the trial Court but not marked as exhibits mistakenly. However, even if these documents are taken into consideration at this stage, which has also not been prayed for, we do not think that it establishes a pattern of profit-making in the plaintiff’s ship breaking business. There is no knowing how big the ship was which the plaintiff broke with his partners in the partnership business. There is no knowing whether the facilities of breaking a ship by way of use of machineries and yard facilities were of comparable standard in the plaintiffs own yard and in the partnership business, or how much time was taken in breaking the said ship. The basis of the plaintiffs claim of loss, namely, his profit in the partnership business, Cannot therefore be held to be a basis at all in establishing his claim of loss @ Taka 22,200.00 per diem, far less as a reasonable basis. The plaintiff as PWI asserts that a ship can be broken within 6 months and in one year two ships can be broken. His licence is also for import of two ships for breaking a year, vide clause 31 of provisional licence dated 30-2-84, Ext. 5, but PW 1 states that the defendants’ scrapship Banglar Kheya had taken a period from 23-1-85 to the end of 1986 for breaking up. Therefore the plaintiffs own evidence is contradictory on this point the evidence given does not establish a general claim that it takes 6 months to break a ship. The plaintiff as PW 1 has stated that a ship after breaking fetches a profit of at least Taka 0 lakh. The plaintiff claims to have broken several ships before. He did not substantiate his claim by filing and proving his profits in respect of his earlier transactions. The compromise decree in a different transaction in a partnership business, wholly unrelated to and unconnected with the plaintiffs present ship breaking business at the present site is a totally unacceptable analogical basis of measuring compensation when no evidence has been adduced that the scrap ships involved, facilities of breaking in the form of machineries and the speed of work in both cases are of comparable nature. The trial Court therefore had no basis before it for calculating the loss of the plaintiff, far less a “reasonable basis” as held by the High Court Division. Mr. Rafiq-ul-Huq himself felt difficulty in supporting the basis of calculating damage as done by the learned Subordinate Judge. Dr Kamal Hossain rightly pointed out that the High Court Division was not exercising its jurisdiction in certiorari so as to be satisfied merely with the “reasonable basis” and the lack of arbitrariness on the part of the trial Court. It was required to sift the evidence afresh as a first appellate Court, give a finding whether the trial Court arrived at a basis of calculation of damages in due consideration of the evidence on record.
25. We find that the High Court Division failed to do so and if the High Court Division would have done so it would have led to a startling discovery that the plaintiffs claim for damage in the plaint has no basis at all, from whatever angle it may be looked at.
26. Although Dr. Kamal Hossain argued a great deal that the plaintiff failed to prove that his loss started from 23-1-85, we do not propose to dwell on that submission because of our finding as above.
27. Dr. Kamal Hossain referred to Halsbury’s Laws of England Fourth Edition, Vol 12 paras 1138-1140 on “The Measure of Damages on Tort” and submits that both in tort and contract the measure of damages was previously expressed in terms of consequences being “direct”, “natural”, “necessary”, “probable”, “proximate”, “precipitating” or some combination of these terms. In particular, in the tort of negligence, the defendant was held answerable for all “direct” consequences, whether foreseeable or not. But now a trilogy of cases dominates the current law on the measurement of damages in tort. The three cases are Overseas Tankship (UK) Ltd. vs. Moris Dock and Engineering Co., Ltd, Wagon Mound (1961) AC 388 (1961) 1 All ER 404, PC: Overseas Tankship (UK) Ltd. vs. Miller SS Co P (Wagon Mound No.2), (1967) 1AC617 (1966) 2 All ER 709, PC; Koufus vs. C. Czarnikow Ltd., (1969) 1 AC 350 (1967) 3 All ER 686, HL. According to the modern law of damages, liability for damage is based on the concept of foresceability and it would seem that this concept should apply to all torts.
28. This reference to Halsbury should not detain us for long because no leave was granted to reopen the question as to whether the damage caused to the plaintiff was the result of “direct” or “natural” consequences of the appellants’ action or whether the appellants ought to have anticipated as reasonable men that damage would result in the obstruction caused by them.
29. Mr. Rafiq-ul-Huq has however cited two cases, Penarth Dock Engineering Company Ltd. vs. Pounds, (1963) 1 Lloyd’s Rep. 359, in which the facts are that the plaintiff was a tenant in respect of a part of the dock premises at Penarth Dock. He agreed to sell a floating pontoon then occupying a part of Penarth Dock with the oral understanding that the defendant would remove the pontoon as speedily as practicable. The defendant failed to do so and unlawfully occupied space upon such premises without the plaintiffs consent. In a suit for damages for breach of contact r trespass against the defendant Lord Denning held that the plaintiff did not suffer any damage because they did not have to pay any extra rent to the British Transport Commission. The dock was of no use to them, they would not have made any money out of it. The test of the measure of damages is not what the plaintiffs have lost but what benefit the defendant obtained by having the use of the berth. Lord Denning decided that the defendant obtained the benefit of the use of the berth at the rate of £ 32.5s, a week from August 9, 1962 to March 25, 1963 and that is the damage available to the plaintiff.
30. Obviously the plaintiff in the appeal under consideration did not frame his claim for damages that way. He did not say that his shipyard was of no use to him and that the appellants should pay him the profit which they have earned by beaching and breaking Banglar Kheya in his shipyard.
31. The second case cited by Mr. Rafiq-ul-Huq is the case of Swordheath Properties Ltd. vs. Tabet and others, (1979) 1 All ER 240, wherein it was held that where a person remains as a trespasser on residential property the owner is entitled to damages for the trespass without bringing evidence that he could or would have let the property to someone else if the trespasser had not been there. The measure of damages will be the value to the trespasser of the use of the property for the period during which he has trespassed, which in a normal case will be the ordinary letting value of the property. The decision of Lord Denning in the first-cited case was applied.
32. Here too the plaintiff’s suit for damages was not sought to be measured by the value to the appellant-trespassers of the use of the plaintiff’s property during the period of their trespass. The measure of damages was the plaintiffs own loss of business and profit. As such, this case has also no application.
33. Mr. Rafiq-ul-Huq then submits that the High Court Division did not err in law in not interfering as an appellate Court with the award of compensation because it is now well-settled that unless there are strong reasons for interference with the figure arrived at by the lower Court or Tribunal, the same should not be normally interfered with. Where the award is inordinately high, a case for interference in appeal is made out. The appellate Court, he submits, should be very slow in undoing the verdict of the trial Court in the matter of award of just compensation. The appellate Court will not interfere merely because it may hold a different view on the question of quantum. In this regard Mr. Rafiq-ul-Huq refers to paragraph 306 of Chapter XVII, pp. 761-763 of C Kameshawar Rao’s Law of Damages and Compensation, the cases of Yorkshire Electricity Board vs. Naylor, (1967) 2 All ER 1 and Taylor vs. 0’ Connor, (1970) 1 All ER 365.
34. Halsbury’s Laws of England, Fourth Edition, Volume 12 on Damages in the Chapter on Appeals at paragraphs 1207 and 1208 brought into sharp focus the appellate Court’s function when the award of damages is made by a judge alone or by a jury. It has been stated therein that an appeal from an award of damages made by a judge sitting without a jury or by a master, is by way of rehearing, and the Court of Appeal may reduce or increase the damages awarded. The Court of Appeal will not, however, vary the award unless it is satisfied that the judge acted upon some wrong principle of law or misapprehended the facts or that the amount awarded was a wholly erroneous estimate. It is not sufficient that the Court of Appeal would itself have awarded a different sum if it had been sitting as the court of first instance. Neither is it sufficient to show that one item of damages is wholly erroneous if it cannot be shown that the total award is wholly erroneous, but if the appellate Court thinks the damages are radically wrong it ought to interfere even though the error cannot be pinpointed. Similar principles will apply if there is a further appeal to the House of Lords. These are indeed sound broad principles with which we do not find any reason to differ.
35. Halsbury’s Laws of England further says at para 1208 that where damages have been assessed by a jury the position is different from that where damages have been assessed by a judge. Subject to two exceptions the Court of Appeal itself has no power to reduce or increase the award of damages because this would involve an invasion of the jury’s province.
36. In the present case under consideration the High Court Division was sitting on appeal over the decree of the learned Subordinate Judge. Even though the High Court Division’s appellate power and jurisdiction are regulated by the Code of Civil Procedure and an appeal is a continuation of the suit, the broad principles enunciated in Halsbury’s Laws of England may gainfully be followed by the appellate Courts when the dispute is as to the quantum only. But in this appeal, the appellants are not challenging the quantum of damages awarded. They are contending that there is no legal evidence worth the name in determining the very basis on which compensation has been assessed. Both the High Court Division and this Division too, upon granting leave, are competent to decide this question, which we have done. We have held that the High Court Division, before endorsing the amount of compensation as allowed by the trial Court totally failed to consider the evidence on record insofar as the plaintiff’s claim of damages in Schedule B of the plaint is concerned and also overlooked that there was no legal evidence worth the name in support of the plaintiffs claim of alleged loss and damage. We have also found that there was no evidence of actual loss and damages sustained by the plaintiff and the High Court Division cannot confirm the trial Court’s assessment of compensation merely “for ends of justice”. For assessment of compensation special damage is a legal exercise based on evidence on record and not an exercise in compassion and sympathy.
37. In view of what we have held the decree of Taka 88,78,800.00 passed by the trial Court and affirmed by the High Court Division cannot be sustained.
38. We have stated in the beginning however that even though the plaintiffs case for compensatory/ special damage in an action for trespass to land which is actionable per se fails, the plaintiff cannot be denied any damages at all. He is in that event entitled to nominal damages. McGregor on Damages (15th Edition) states, “Nominal damages may also be awarded where the fact of a loss is shown but the necessary evidence as to its amount is not given Nevertheless a token sum is awarded, which, after an early period In which the amount could be minuscule, eventually crystallized at the figure of £2; some modern awards, however, have allowed only £ 1, while others have reached £5”. (Pp.250-251).
39. It is in evidence that the plaintiff took 5.01 acres of foreshore land from the Government on eksona lease basis with option of renewal and the plaintiff must have had to pay a rent to the Government each year. It is also in evidence that the plaintiff had ship-breaking machineries installed in his shipyard worth Taka 25 lakh. These machineries were at least lying idle, if not used by the defendants. We are inclined to find that the nominality of damages in the facts and circumstances of the case will not be a token sum of Taka I or Taka 100.00 but should be in the region of Taka 1 lakh.
40. The appeal is allowed in part.
The decree passed by the trial Court and affirmed by the High Court Division is modified and it is ordered that the plaintiff-respondent No. 1 is entitled to Taka 1 lakh as nominal damage. The defendant- appellants are directed to pay the said amount within one month. There will be no order as to costs.
Source : 49 DLR (AD) (1997) 164