KINGON, C.J., NIGERIA. PETRIDES, C.J. GOLD COAST AND GRAHAM PAUL C.J. SIERRA LEONE. This is the second time that this case has come before this Court on appeal. The facts and pleadings are set out in the judgment of the Court upon the first appeal and need not be recapitulated now. After the hearing of the first appeal the Court ordered a new trial, which hall now been held before a different judge. At the new trial the defendant’s counterclaim as well as the plaintiff’s counterclaim was tried. The learned trial judge gave judgment for the plaintiff on the claim awarding £200 special damages and £300 general damages with costs. He dismissed the counterclaim with costs.
Against this judgment the appellant has appealed on the following grounds:-
“1. That the publication was incapable of the innuendo alleged “or of any other defamatory meaning-and the Court was wrong in “deciding that the publication was defamatory.
“2. That in any case the plaintiff failed to prove his ‘innuendo “and the Court was wrong in its decision that the innuendo was proved.
“3. That the defendant proved the truth of the allegations in the “publication-and the Court was wrong in deciding that the publication “was not justificated.
“4. That the damages awarded was excessive,
“5. That there was no Counterclaim before the Trial Judge-the “Court having by Order dated the 26th day of November, 1940, declined “to make the defendant’s principals’ claim against the plaintiff as a “Counterclaim dealt with along with the plaintiff’s claim-and there “was no notice given to the defendant that his principals’ claim would “be heard in the plaintiff’s suit-AND the Court was therefore wrong “in dismissing the said claim of the defendant’s principals as not being “proved.
“6. That the Judgment was entirely against the weight of evidence.
“ 7. That the learned trial Judge was wrong in awarding Special “Damages inasmuch as the plaintiff did not plead any special damages “and submitted no particulars in relation thereto.
“8. Assuming the Counterclaim wits before the Court, its dismissal “was against the weight of evidence and the procedure relating to the “trial of the Counterclaim was wrong in law.”
It will be convenient to deal first with grounds 5 and 8 which relate to the dismissal of the counterclaim. It is true that at the first trial the counterclaim was not considered, the Court making an order that its trial should stand over pending decision upon the claim, It is also true that the new trial started upon this basis, but at the end of his opening, plaintiff’s counsel asked the Court to hear the counterclaim at the same time as the claim, and this the Court agreed to do, making a record of the fact, This in our view overrode and cancelled the previous order directing separate trial”, Thereafter the defendant, who conducted his case in person, cross- examined the plaintiff upon points arising out of the counterclaim and himself gave evidence relating to it, Counsel for the plaintiff specifically addressed the Court upon the counterclaim in his final address. Having regard to these facts, we find no substance in these grounds of appeal, and the appeal against the dismissal of the counterclaim is dismissed.
Turning now to the plaintiff’s claim, grounds 1, 2, 3 and 6 attack the main finding of the Court below and the award of general damages, and ground 4 attacks the amount, As to this it is sufficient to say that, in our opinion, the publication was capable of the innuendo alleged and there was ample evidence upon which the learned trial judge could find that the publication was defamatory and that the innuendo was proved and that we see no reason to differ from his findings further that we agree with him that the publication was not justified. As to the amount of the general damages awarded, we can find no justification for interfering with this.
Coming now to ground 7, the special damages awarded, the first question to be considered is whether on the pleadings it was competent to the Court to award special damages at all.
The special damages were awarded by the Court in respect of slander of title to goods. In such cases the rule of pleading is that, special damage must be alleged with every reasonable particularity in the Statement of Claim. In the words of Bowen, L. J. in the case of Ratcliffe v. Evans (1892) 2 Q.B. 524 at 532, 533):-
“The character of the acts themselves which produce the damage, “and the circumstances under which these acts are done, must regulate “the degree of certainty and particularity with which the damage ought “to be stated and proved. As much certainty and particularity must “be insisted on, both in pleading and proof of damage, as is reasonable, “having regard to the circumstances and to the nature of the acts them- “selves by which the damage is done. To insist upon less would be to “relax old and intelligible principles. To insist upon more would be “the vainest pedantry.”
In this case the plaintiff pleaded in his claim:- “On October 2nd, 1940, the defendant contriving and intending to “injure the plaintiff in his said business and to prevent him from “selling his goods falsely and maliciously wrote and published of the "Plaintiff ………” and “By reason of the publication of the said notice the plaintiff has “been greatly injured in his credit and reputation and has suffered and “will suffer much loss and damage. The plaintiff claims £2,000 “damages.” In his reply to the defence the plaintiff said that:- “By reason of the said Libel, he has, been greatly damnified in his "business and has suffered in his credit both with Merchants in the “Gold Coast and abroad and with Braclays Bank (Dominion, Colonial “and Overseas), Accra, his Bankers.”
Can any of these pleas or all of them taken together be held, having regard to all the circumstances of this case, to state with sufficient certainty and particularity any special damage? We are of opinion that they cannot, and consequently hold that the Court below was wrong to award the plaintiff special damages at all.
But apart from the pleadings we are of opinion that the plaintiff failed to prove any special damage at the trial. Upon this point the learned trial Judge in his judgment says:- “The innuendo alleged by the plaintiff has been proved. By it the “defendant imputed to the plaintiff (1) that he had no right to sell “his goods, this being a slander of title, entitling him to special damages “which have been proved. The plaintiff had a right to dispose of any “goods that he wished to.
And again: - “It IS established, I think, that the plaintiff is entitled to special “damages to the extent of £200 in the form of loss of sales and I award “that amount in that regard,”
We have been unable to ascertain how the learned trial Judge arrived at the figure of £200 which he awarded as special damage. Counsel for there respondent suggested that it was reached by taking the sales for October and November at Accra and Kumasi and subtracting the October figures from those for November which gives a total difference of £212 and then rounding off that sum to ) £200. If that is so (and it may be so, having regard to the words of the Judge “to the extent of £200 in the form of loss of sales “) it is obviously an erroneous method of calculation since the figures relate to sales not profit. Moreover the figures are quite unreliable as an indication of loss of sales due to any particular cause. In this country there is a variety of causes which lead to seasonal fluctuations of trade and an examination of the ledger (Exhibit 7) shows that equal and greater fluctuations occurred in other months and in other years.
We can find no other evidence establishing that the plaintiff was entitled to special damages in the sum of £200 or any other sum.
For these reasons we allow the appeal upon ground 7 against the award of special damages and direct that judgment be entered for the plaintiff for £300 general damages only instead of a total of £500. The order of the Court below as to costs will stand good.
Since each party has been partly successful upon this appeal each party will bear his own costs of this appeal in this Court.