SOUTH AFRICAN AIRWAYS v. MR. AUGUSTINE OBI
(2013)LCN/6261(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of June, 2013
CA/L/719/2010
JUSTICES
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
SOUTH AFRICAN AIRWAYS Appellant(s)
AND
Mr. AUGUSTINE OBI Respondent(s)
RATIO
THE LAW THAT GOVERNS OR REGULATES THE INTERNATIONAL CARRIAGE OF GOODS AND PERSONS BY AIR IN NIGERIA
The current law that regulates or governs the international carriage of goods and persons by air in Nigeria is the Civil Aviation Act, 2006, which domesticated the Montreal Convention, 1999. However, at the time the cause of action culminating to this appeal arose, the applicable law was the Warsaw Convention, 1929 which was adopted in the Carriage by Air (colonies, protectorates and Trust Territories) Order, 1953. This appeal would, therefore be determined based on that law applicable at the time the cause of action arose, Rossek v ACB Ltd (1993) 8 NWLR (pt 312) 382, 474; Adahh v N.Y.S.C (2004) 13 NWLR (pt 891) 639, 648; A-G Lagos State v Dosunmu (1989) 3 NWLR (pt 111) 552; Alao v Akano (1988) 1NWLR (pt 71) 431; Uwaifo v A-G Bendel State (1982) 7 SC 124, (1983) 4 NCLR 1; Utih v Onoyivwe (1991) 1 NWLR (pt 166) 166, 201.
The applicability and status of the said Convention (as domesticated) as an existing law (before its repeal in 2006) as a law that regulated the rights and liabilities of carriers, had long been endorsed by the Apex court, Cameroon Airlines v Otutuizu (2011) LPELR-SC.217/2004 The Swiss Air Transport Co Ltd v ACB (1971) LPELR-SC.177/68; [1971] All NLR 39; Ibidapo v Lufthansa Airlines (1997) LPELR SC. 238/1994; (1997) 4nwlr (PT 498) 124; hARKO air services (Nig) Ltd v Keazor (2011) LPELR SC 262/2005.Indeed in the words of Iguh JSC held in Ibidapo v Lufthansa Airlines (1997) LPELR.SC 238/1994 at 59 (D-F):
…the imperial Order-in-council known as the Carriage by Air (Colonies Protectorates and Trust Territories ) order, 1953 otherwise referred to as the 1953 order which laid down the rules of the Warsaw Convention regulating international carriage by Air applicable to Nigeria did not cease to operate as an existing law on the coming into effect on the 1st October, 1960 of the Nigeria (constitution) Order in council 1960. PER NWEZE, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JUSTICE
This is so for it is settled on a long line of authorities that the delicate role played by courts in our adversarial system of justice demands that they must not only be impartial, but must be seen to be impartial at all times, Fawehinmi v Akhilu (1987) 4 NWLR (pt 677) 797, 833; Udo v The state (1988) 3 NWLR (pt 82) 316, 333; Okoduwa v The State (1988) 2 NWLR (pt.76) 333, 346; Akinfe v The State (1988) 3 NWLR (85) 719 Alhaji I.A Onibudo v Alhaji A.W Akibu (supra). PER NWEZE, J.C.A.
WHETHER OR NOT A DOCUMENT WRITTEN IN A LANGUAGE OTHER THAN ENGLISH LANGUAGE IS INADMISSIBLE
In the second place, no court in this country would feign ignorance of the settled position that document written in a language other than the EWWnglish Language, which is the official language of lingua franca of the court, is inadmissible, Damina v State (supra) Asiniola v Fatodu(supra); Oduwole v Aina (2001) 17 NWLR (pt. 741) 1, 22; as it is inadmissible, Dantata v Dantata(2002) 4 NWLR (pt 756) 144, 162; R v Ogbuewu (1949) 12 WACA 483; R v. Zakwakwa (1960) SCNLR 36; Jegah v The State (1971) NMLR 134; Makeri v The State (1994) 3 NWLR (pt. 330) 55, 61. PER NWEZE, J.C.A.
CHIMA CENTUS NWEZE J.C.A. (Delivering the Leading Judgment):
The respondent herein (as plaintiff) took out a writ of Summons accompanied by a Statement of Claim against the appellant herein (as defendant) at the Federal High Court, Lagos Judicial Division. He sought the following reliefs against the defendant:
a. That the Defendant be compelled to deliver to him his two boxes intact with his goods as promised by the Defendant in Sao Paulo, Brazil.
b. Alternatively, the Plaintiff specially claims:
i. The sum of US$37,266.66 being the purchase price of goods
ii. The sum of US$18,633.13 being the profit margin after sale of goods in Nigeria.
c. Thus a total of US$55,899.39 or its equivalent N6,812,405.
d. The plaintiff also claims 21% interest from September, 2001 until judgment is delivered”.
Pleadings were settled and exchanged after which the suit proceeded to trial. The plaintiff testified in proof of his case. He tendered the following documentary exhibits “1”. Miscellaneous charges (Receipt), pages 91-94 of the records and exhibit “2”. Property Irregularity Report, page 1 and document in foreign language, page 2, contained on pages 95-99 of the records. The defended fielded one witness who was examined in-chief; cross-examined and re-examined. Parties adopted their final written address. In its judgment, the lower court (Abutu J as he then was) found in favour of the plaintiff, hence, the defendant’s appeal.
FACTUAL BACKGROUND
The plaintiff’s case, at the lower court, was that on September 20, 2001, he embarked on an international air travel. He flew from Sao Paulo, Brazil, to Lagos, Nigeria, on board the defendant’s aircraft. He checked in his baggage of five items. He was required to pay for excess luggage. He made payment for extra charges. The said payment is evidenced in exhibit 1, page 158 of the records. Once he arrived at his destination, Lagos, Nigeria, on September 21, 2001, he found out that two items were missing from his luggage of five items.
He, promptly, filed a Property Irregularity Report, page 1, exhibit 2. The defendant (now appellant) did not respond. He, thus, instructed his solicitors who, allegedly, addressed a letter to the defendant. As nothing came out of the letter, he recommended the suit at the Lagos Division of the Federal High Court for the recovery of the value of the two missing items. He alleged that the two missing bags contained jewelry and that he declared the value of the jewelry to the defendant.
Under cross-examination, the Defendant’s sole witness established the following facts:
a. The Miscellaneous Charges Order (Exhibit 1) is a receipt given in acknowledgment of the payment made for excess baggage.
b. The Miscellaneous Charge order (Exhibit 1) is not issued for an extra-ordinary valuable item.
c. The plaintiff did not declare the goods (See pages 126-127 and 152-153 of the Records).
ISSUES FOR DETERMINATION:
The issues that arise for determination in this Appeal are as follows:
1. Whether the court below was right in awarding damages at large in excess and far beyond the limit of the carriers liability for the loss of registered luggage when the Defendant/Appellant had not lost its right to rely on the limits of liability encapsulated in article 27 of the Warsaw Convention applicable in Nigeria under the carriage by Air (Colonies, Protectorate and Trust Territories) Order, 1953?
2. Whether the learned trial judge was right to have admitted and attached weight to page 2 of the exhibit 2 being a document in a foreign language?
ARGUMENTS OF COUNSEL
ISSUE 1
Whether the court below was right in awarding damages at large in excess and far beyond the limit of the carriers liability for the loss of registered luggage when the Defendant/Appellant had not lost its right to rely on the limits of liability encapsulated in article 22 of the Warsaw Convention applicable in Nigeria under the carriage by Air (Colonies, Protectorate and Trust Territories) Order, 1953?
When this appeal came up for hearing on April 17, 2013, learned counsel for the appellant, Ajibola Dalley, with O. A Olude (Mrs), adopted the appellant’s brief filed on April 4, 2012. In the said brief, he approached the first issue from two perspectives, first, the applicability of the Warsaw Convention.
THE WARSAW CONVENTION
He submitted that the key purpose of the Warsaw Convention was simply to harmonize the rules which governed actions and remedies in international carriage by air and, by so doing, balance the interest of claimants who seek compensation against those of the airlines who wish to limit their liability. He endeavoured to establish the material consideration when entertaining claims relating to international carriage by air, citing article 1 of the Convention.
He explained that in 1929, when the international Conference on Private Aeronautical Law, took place at Warsaw, the rights and liabilities of claimants and depended on the diverse laws of the countries involved in carriages and the terms of the contracts made in particular cases. This often resulted in uncertainty and confusion. Consequently, being a time when the airline industry was very much at its infancy, there was a desire to protect it by limiting the liability of airlines in the way the convention does.
He noted that from the outset, the signatories to the Convention were in no doubt in accord on their objectives. In the treaty’s preamble they expressed their recognition of “the advantage of regulating in a uniform manner the conditions of … the liability of the carrier.” Therefore, the full title they gave to the convention was “Convention for the Unification of certain Rules Relating to international Carriage by Air.” This quest to unify the rules of many countries was obviously driven by the desire to promote certainty as aforesaid.
He submitted that the phrase “Certain Rules” cannot be interpreted to permit recourse to national laws because it would negate the Convention’s primary objectives of certainty, citing Ginsburg J in El Al Israel Airlines v Tsai Yuan Tseng (1999) 525 U.S 155 ‘encourage artful pleading by Plaintiffs seeking to opt out of the Convention’s liability scheme when local law promised recovery in excess of that prescribed by the treaty.”
He cited articles 17-30 as the relevant sections of the Convention relating to the liability of the Carrier. He contended that the effect of the community reading of article 24, with its use of the words ‘any action for damages however founded’, and Article 1 which stipulates that the convention applies to all international Carriage of persons, luggage or goods, is that if a litigant cannot bring his claim under the Convention, he will be left without remedy. He emphasized the point that the words “certain Rules” in the Convention’s title and the use of the words ‘in the cases covered by Articles 18 and 19’ in article 24 cannot be read to mean that in cases not covered by those Articles, recourse could be had to national laws because otherwise the objective of promoting certainty would be severely compromised as aforesaid.
He maintained that, in applying the provisions of the Convention where there are allegations of actual damage sustained in the event of destruction or loss of or damage to baggage or cargo or even damage occasioned by delay in the course of transportation by air, the National Court (Nigeria included) must, once such damage is proven, award sums in accordance with the limitation set out in article 22 of the Convention, unless the passenger or consignor has specially, at the time of handling over the goods to the carrier, declared the value of the same and paid a supplementary sum if required.
In his view, it is only when a passenger can prove that, at the time of handling over the goods to the Carrier, he declared the value of same and paid a supplementary sum under the proviso of article 22(2) or that there was willful misconduct under article 25 of the Convention, that h or she can cast off the shackles of article 22(1) NAD seek the highest compensation otherwise available under the laws of the court seized of his or her case.
He submitted that the Warsaw Convention is not only applicable in Nigeria but, in addition claims in international carriage, are subject to the strict terms and provisions contained within it. Incidentally, all international travel tickets and airway bills, usually, dubbed as prima facie evidence of the conclusion of the contract, incorporate the terms of the Convention, citing article 11; Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (pt 498) 149; 162 – 163; Cameroon Airlines v. Abdul Kareem (2003) 11 NWLR (pt 831) 1. He observed that the position on the applicability of the Warsaw Convention in Nigeria was fully endorsed in Cameroon Airlines v Abdul Kareem (2011) 4 NWLR (pt 1238) 512, 537; 539.
He turned to the question whether, under the terms of article 22 (2) of the Convention, the plaintiff/respondent did the following:
a. At the time of handing over the baggage to the defendant/appellant, made a special declaration of the value of the alleged lost baggage.
b. Evidenced declaration of same and ;
c. Paid a supplementary sum.
The second arm of his submission was devoted to the claim for damages.
THE CLAIM FOR DAMAGES
On this point, counsel referred to page 158 of the record. There, the lower court found that ‘the pleadings and the evidence on both sides show that the plaintiff travelled on the defendant’s aircraft and that the plaintiff had excess luggage for which he paid extra charges. See, also, paragraph (sic) 3 and 4 of the Statement of Claim and paragraphs 4 and 5 of the Statement of Defence. See, also, exhibits 1 and 2.
He submitted that, having found as a fact that the plaintiff had excess luggage for which he paid extra charges as evidenced by exhibit 1, the lower court erred, in fact and in law, when it found evidence of the special declaration from the content of page 2 of exhibit 2, page 159 of the record. Counsel canvassed the view that, apart from exhibit 1 (Miscellaneous Charges Order in respect of excess baggage only), there was no evidence before the lower court of any additional or, in the words of the Convention, “supplementary payments.” He faulted the lower court’s conclusion that a supplementary payment was made.
He, equally, impugned the lower court’s conclusion that the defendant/respondent made a special declaration. In his view, a perusal of page 2 of exhibit 2 would reveal a document written in a foreign language. He further, inveighed at the lower court’s conclusion that page 2, which is a different document from page 1 of exhibit 2, showed, clearly, that the contents of the five bags were declared,” page 160. He wondered how the lower court was able to determine the contents of page 2 of exhibit 2 and conclude that it was a declaration when the said document had not, in any way, been the object of interpretation and translation.
He took the view that the lower court had, rightly, identified the point of contest as whether or not the goods were declared in accordance with article 22 of the Warsaw Convention, page 160 of the record. He regretted that the said court failed to deal with the issue appropriately. In his submission, the court erred in its evaluation of the facts and evidence vis a vis relevant principle of law, citing Cameroon Airlines v Abdul Kareem (2003) 11 NWLR (pt 830)1 on the ambit of article 22(2).
Counsel submitted that, in order ground a claim at large beyond the limitation sums of 250 Francs per kilogram of lost baggage, the plaintiff/respondent was saddled with the onus of satisfying the three conjunctive tests set out above. Firstly, that there was a special declaration of the value of the registered luggage made at the time when the luggages were handed over to the appellant; secondly, that evidence of a special declaration of the value of the luggage was presented in the court below, and thirdly that the supplementary sum as required under article 22(2)(a) was paid.
He observed that, firstly, no special declaration was made and evidenced by the plaintiff/respondent, before the court, particularly in view of the fact that oral declaration are not recognized by the courts, Cameroon Airlines v Abdul Kareem (2003) 11 NWLR (pt 830)1, 23-24. Even then, there was no evidence of payment of supplementary sum. He pointed out that the only evidence of payment, by the plaintiff/respondent, in this case, was for excess baggage, as evidenced by exhibit 1. He maintained that the plaintiff/respondent did not prove his claim in accordance with the law to entitle him to any form of compensation, whatsoever. He urged the court to find in favour of the appellant on this point and set aside the said judgment of the lower court.
ISSUE 2.
Whether the learned trial judge was right to have admitted and attached weight to page 2 of the exhibit 2 being a document in a foreign language?
On this issue, he submitted that the official language of the Courts in Nigeria is English. Thus, any document prepared in another language other than English and put in evidence must be translated into English before it can be used in evidence by the court. He canvassed the view that where the party, tendering such a document, fails to translate it, the duty becomes that of the court. He contended that failure to translate the document and place the translated version in evidence renders it useless, Damina v The State (1995) 8 NWLR (pt 415) 513; Ojengende v Esan (2001) 18 NWLR (pt 746) 771. He also, cited Asiniola v Fatodu (2009) 6 NWLR (pt 1136) 184, per Nweze JCA.
He contended that the lower court relied, heavily, on page 2 of the exhibit 2 in awarding judgment in favour of the plaintiff/respondent. He insisted that the lower court relied solely on page 2 of exhibit 2 in reaching its decision and its determination of the quantum of damages. He observed that page 2 of the said exhibit 2 is in a foreign language. Thus, it ought not have been admitted by the Court or, if admitted, ought not to have any probative value as pronounced by extant laws.
He cited page 158 of the record. There, in the course of its judgment, the lower court opined that:
…page 2 of exhibit 2 was issued on the 18th of September 2001. The description of the goods and the quantity of the goods are stated on page 2 of exhibit “2”. Page 2 of exhibit “2” shows that five classes of goods were declared as Medallha; Douradas; Neis; Dourados; Pulsciras Dourades; CAnrostes Douradas and Brincos Douradas. The quantity of goods and their relative values are stated on page 2 of the exhibit 2.”
He, further, drew attention to page 159 of the record where the lower court found:
…on the basis of the evidence of the plaintiff and the contents of page 2 of exhibit ‘2’ that the contents of the five pages were declared in accordance with the provision of article 22 (1) Chapter III of the Warsaw Convention made applicable to Nigeria by the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953, published in the Laws of the federation of Nigeria and Lagos 1958. The contents of the bags having been declared as shown on page 2 of exhibit “2” the liability of the defendant is not limited to 250 Francs or 420 per kilogram. The plaintiff is entitled to recover the full value of the goods.
He turned to page 160 where the lower court held as follows: ‘page 2 exhibit “2” which is a different document from page 1 of the exhibit “2”, shows clearly that the contents of the five bags were declared.’
He submitted that it was apparent from the judgment of the lower court that the basis of the award of the sum of US$37,266.26 and interest at the rate of 6% per annum from September 30, 2007, until the final liquidation of the judgment debt was, without more, the content of page 2 of exhibit 2, a document which was not written in English language and certainly not the object of any form of translation. He urged the court to hold that the lower court’s reliance on page 2 of exhibit 2 was an error of law and should be discountenanced, Kankia v Maigemu (2003) 6 NWLR (pt 817) 496.
Learned counsel submitted that a consideration of the judgment appealed against in its entirety would lead to the logical conclusion that same is wrongful, perverse and ought to be set aside. HE urged the court to set aside the said judgment and substitute, in its place, the relief sought by the appellant in the Notice of Appeal and as borne out of the statement of Defence.
RESPONDENT’S SUBMISSION
On his part, counsel for the respondent, A.N. Osuji, adopted the respondent’s brief filed on June 27, 2012. In the said brief, he put forward a sole issue for the determination of the appeal. He framed it thus:
WHETHER IN ALL CIRCUMSTANCES AND EVIDENCE BEFROE THE LOWER COURT HIS LORDSHIP WAS RIGHT IN GIVING JUDGMENT IN FAVOUR OF THE PLAINTIFF
He observed that the appellant’s argument centered on article 22(2) of the Warsaw Convention which was incorporated into Nigeria as the Carriage by Air (Colonies and Protectorate and Trust Territories) Order 1953, Laws of the Federation of Nigeria and Lagos, 1958. He observed that the most relevant and applicable provisions of the above Convention were articles 22(1) and 22(2). In his view, these sections stipulate and limit carrier’s liability for damages avoidable to 250,000 francs in the case of carriage of passengers and 250 francs per kilo for registered luggage and goods unless the passenger or consignee has specially at the time of handling over the goods to the carrier declares the value of the same and paid a supplementary sum, if required.
Accordingly, therefore, for any plaintiff to prove his case all he has to do is to show:
(a) that goods were submitted to the authorities.
(b) that he declared the contents of and the value of the goods he is handling over and paid the supplementary sum or charge if required.
He submitted that the lower court fully considered all the above and in view of the evidence adduced and on pages 9 and 10 of the judgment fully marshaled out the contents of the plaintiff’s baggage which was contained in exhibit 2 page 2 tendered before the court.
He explained that, at the hearing of the suit, the defendant was aware that, since the goods or baggage were being taken in Brazil, that all documents would be in Brazilian language (Spanish or Portugal and the case will centre mainly on the documents yet they sent a witness who informed the court that his only duty is to track goods worldwide and not to interpret languages which he does not speak. Even after the Judge urged the solicitor to the defendant to procure an interpreter if he is doubt, he failed to produce any.
He observed that the contents of the bags were declared as per page 9 of the judgment. The plaintiff stated that it was the declaration that brought about the loss. He submitted that the lower court was right in its conclusion that the plaintiff proved his case in accordance with section 134 of the Evidence Act 2011. This he did by the list of goods’ contents as enumerated on page 2 of the exhibit 2. He contended further that, if the defendant was in doubt, it was incumbent on the appellant to produce evidence to prove that what was enumerated or page 2 of exhibit 2 were what it is assumed to be.
He submitted further that, under the said Convention, the carrier was bound to deliver goods entrusted to him, K. hine incorporated v K.R Inter Nig. Ltd and Ors (1993) 8 NWLR (pt 192) 159, 165. He noted that, in the instant suit, the general agreement was that the respondent was carrying five baggages. This is not in contention. The only issue in contention was and still is the declaration of the contents of the bags to confirm with article 22(1 and 2) of the Warsaw Convention.
He contended that the plaintiff/respondent insisted that he declared the contents which were shown in exhibit 2, page 2. He submitted also that the burden was first on the plaintiff to prove that he declared his goods. This he claimed, he did and that was why they not only wrote five bags, they went ahead to itemize the contents and those things on page 2 of exhibit 2 tallies with what he told them.
He submitted that the respondent there and then satisfied section 131(2) of the Evidence Act 2011 and shifted the burden to the appellant, section 132 and (133) 1 of the same Evidence Act 2011. He contended that, after the respondent satisfied the court with his proof of a particular fact, in this case the so called documents written in Spanish, it became the duty of the defendant to procure the services of an interpreter who abound in Nigeria. They ignored that fact even when the lower court advised them to do so. Instead, they stuck with a witness whom the court advised them to do so. Instead they stuck with a witness who claimed that his only duty was track lost luggage worldwide and he did it in this case without success. He finally submitted that the judgment of the lower court was impeachable. K. Line incorporated v. K. Inter (Nig) Ltd and Anor (Supra).
He urged the court to discountenance the appellant’s argument centered on the interpretation of a document which they assumed wrongly that it was the duty of the Respondent to produce one when the burden was on them. He urged the court to dismiss the appeal as lacking merit.
RESOLUTION OF THE ISSUES
ISSUE 1
The current law that regulates or governs the international carriage of goods and persons by air in Nigeria is the Civil Aviation Act, 2006, which domesticated the Montreal Convention, 1999. However, at the time the cause of action culminating to this appeal arose, the applicable law was the Warsaw Convention, 1929 which was adopted in the Carriage by Air (colonies, protectorates and Trust Territories) Order, 1953. This appeal would, therefore be determined based on that law applicable at the time the cause of action arose, Rossek v ACB Ltd (1993) 8 NWLR (pt 312) 382, 474; Adahh v N.Y.S.C (2004) 13 NWLR (pt 891) 639, 648; A-G Lagos State v Dosunmu (1989) 3 NWLR (pt 111) 552; Alao v Akano (1988) 1NWLR (pt 71) 431; Uwaifo v A-G Bendel State (1982) 7 SC 124, (1983) 4 NCLR 1; Utih v Onoyivwe (1991) 1 NWLR (pt 166) 166, 201.
The applicability and status of the said Convention (as domesticated) as an existing law (before its repeal in 2006) as a law that regulated the rights and liabilities of carriers, had long been endorsed by the Apex court, Cameroon Airlines v Otutuizu (2011) LPELR-SC.217/2004 The Swiss Air Transport Co Ltd v ACB (1971) LPELR-SC.177/68; [1971] All NLR 39; Ibidapo v Lufthansa Airlines (1997) LPELR SC. 238/1994; (1997) 4nwlr (PT 498) 124; hARKO air services (Nig) Ltd v Keazor (2011) LPELR SC 262/2005.Indeed in the words of Iguh JSC held in Ibidapo v Lufthansa Airlines (1997) LPELR.SC 238/1994 at 59 (D-F):
…the imperial Order-in-council known as the Carriage by Air (Colonies Protectorates and Trust Territories ) order, 1953 otherwise referred to as the 1953 order which laid down the rules of the Warsaw Convention regulating international carriage by Air applicable to Nigeria did not cease to operate as an existing law on the coming into effect on the 1st October, 1960 of the Nigeria (constitution) Order in council 1960.
The issue here falls within a narrow canvass. At page 158 of the record the lower court found that the pleadings and the evidence on both sides show that the plaintiff travelled on the defendants’ aircraft and that the plaintiff had excess luggage for which he paid extra charges. see also, paragraph(sic) 3 and 4 of the statement of claim and paragraphs 4 and 5 of the Statement of Defence. see, also exhibits 1 and 2.
The appellant inveighed against this finding. There is considerable merit in the agitation of the appellant’s counsel on this point. The lower court would appear to have equiparated the payment of extra charges for excess luggage (exhibit 1) with the special declaration of the value of a lost baggage. with respect, that finding betrayed the Court’s misconception of the constitutive obligations ordained in the convention in this regard.
in our view, there is a world of difference between the two categories of payments. Under article 22(2) of the convention, the consignor is only entitled to damages in excess of the carrier’s liability if, at the time when he handed over his package to the carrier, he made a special declaration of the value at delivery and paid a supplementary sum if the case so required.
In Harka Air services ltd v Keazor (supra), Adekeye JSC upheld the position that under article 22 (1) and (2) of the Warsaw convention, in the carriage of registered luggage and of goods, the liability of the carrier is limited to the sum of 250francs per kilogram unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. in that case, the carrier will be liable to pay a sum not exceeding the declared sum unless he proves that the sum is greater than the actual value to the consignor at delivery.
At the lower court, apart from exhibit 1 (miscellaneous Charges in respect of excess luggage) the respondent (as plaintiff) did not adduce any evidence of supplementary payment and special declaration as required by the above article 22(1) and (2). As such, contrary to the finding and conclusion of the lower court, we hold the view that he had not proved entitlement to more damages than the limit in the said article, cameroon Airlines v Otutuizu (supra)
Above all, his case was not fought on the ground of willful misconduct under article 25 of the convention, Ibidapo v Lufthansa Airlines (1997) LPELR- SC. 238/1994: (1997) 4 NWLR (pt 498) 124; Jarka Air Services (Nig) Ltd v keazor (2011) LPELR SC 262/2005.
At page 159 of the record, the lower court had found evidence of the declaration envisaged by article 22 (supra) from the tenor of page 2 of exhibit 2. listen to this:
The contents of the bags having been declared as shown on page 2 of exhibit “2” the liability of the defendant is not limited to 250 francs or 420 per kilogram. The plaintiff is entitled to recover the full value of the goods.
However, as the learned counsel for the appellant pointed out the said page 2 of exhibit 2, from whence the lower court found evidence of special declaration, was couched in a language that is alien to the lower court and indeed this court. From the record, it is evident that the said page (page 2 of exhibit 2) was not rendered in the lingua franca of the court. we are thus, in agreement with the submission of the appellant’s counsel that the respondent (as plaintiff) did not present any evidence of a special declaration of the value of the luggage at the lower court.
in the circumstance, we hold that the lower court erred when it awarded damages in favour of the respondent in excess of the liability of the carrier (appellant) contrary to article 22 of the convention, Cameroon Airlines v Oyutuizu(supra). we therefore, resolve this issue in favour of the appellant.
ISSUE 2
As shown above, Ajibola Dalley, for the appellant, contended that the lower court relied, heavily on page 2 of exhibit 2 in awarding judgment in favour of the plaintiff/respondent, particularly, in arriving at its determination of the quantum of damages. He observed that the said page 2 of the said exhibit 2 was in a foreign language.
Chief A.N osuji, for the respondent did not contest this fact. Rather, he took the view that “the defendant (now, appellant) was aware that, since the goods or baggage were (cargoed from) Brazil, all documents would be in the Brazilian language (Spanish or Portugal) and the case will centre mainly on the documents yet they sent a witness who informed the court that his only duty is (sic) to track goods worldwide and not to interpret languages which he does (sic) not speak.
Even after the judge urged the solicitor to the defendant to procure an interpreter if he is (sic) doubt he failed to produce any paragraph 3.7 of the respondent’s brief
RESOLUTION OF THE ISSUE
WE have looked at the said page 2 of exhibit 2. The entries therein are certainly, not couched in the English Language. At page 159 of the record, the lower court had found evidence of the declaration envisaged by article 22 (supra) from the tenor of page 2 of exhibit 2. According to the court:
Thee contents of the bags having been declared as shown on page 2 of exhibit ‘2’ the liability of the defendant is not limited to 250 Francs or 420 per kilogram. The plaintiff is entitled to recover the full value of the goods.
with profound respect, two grave errors are manifest in the lower court’s approach. In the first place, by suo motu assuming the role of an interpreter of that page, the lower court “had not only, un-solicitedly, entered the arena by playing the role of a witness unbefitting of an impartial arbiter, thus making (its) vision not only to be beclouded, but allowed (its) decision to be twisted or perverted, per Onuh JSC in Daqmina v State (supra), citing Alhaji I.A Onibudo v. Alhaji A.W Akihu (1982) All NLR 207.
This is so for it is settled on a long line of authorities that the delicate role played by courts in our adversarial system of justice demands that they must not only be impartial, but must be seen to be impartial at all times, Fawehinmi v Akhilu (1987) 4 NWLR (pt 677) 797, 833; Udo v The state (1988) 3 NWLR (pt 82) 316, 333; Okoduwa v The State (1988) 2 NWLR (pt.76) 333, 346; Akinfe v The State (1988) 3 NWLR (85) 719 Alhaji I.A Onibudo v Alhaji A.W Akibu (supra).
In the second place, no court in this country would feign ignorance of the settled position that document written in a language other than the EWWnglish Language, which is the official language of lingua franca of the court, is inadmissible, Damina v State (supra) Asiniola v Fatodu(supra); Oduwole v Aina (2001) 17 NWLR (pt. 741) 1, 22; as it is inadmissible, Dantata v Dantata(2002) 4 NWLR (pt 756) 144, 162; R v Ogbuewu (1949) 12 WACA 483; R v. Zakwakwa (1960) SCNLR 36; Jegah v The State (1971) NMLR 134; Makeri v The State (1994) 3 NWLR (pt. 330) 55, 61.
Foe their bearing on this point, we shall take the liberty to set out the views of the apex court on what a court confronted with a document which is not written in the English Language should do. According to Uwais JSC(as he then was):
Now it is a matter of common knowledge and indeed of judicial notice that the lingua franca of Nigeria and the official language of the superior courts in this country is English. Therefore, when a witness testifies in any proceedings before the superior courts in any Nigerian Language or vernacular such testimony is simultaneously translated by a court interpreter into English for the benefit of the court and the parties. Similarly, if documents written in any language other than English are to be put in evidence, they are caused by the party in the proceedings, who needs them to prove his case, to be translated into English. Where the party omits to have the document so translated, the superior court has a duty to cause the document to be translated by the official interpreter of the court, if any, or by a person that is fluent and competent to do so. Documents properly tendered for admission in evidence cannot be rejected by the courts merely on the ground that the documents have been written in a language or vernacular other than English. If they are so admitted, the courts are expected and indeed obliged to look at them when they come to assess or evaluate the evidence adduced.
But they cannot do so unless they have the documents translated into English, and the translated copies put in evidence in the normal way. Thus, the interpreter or translator must be called to give evidence, in the course of which he will be expected to state the qualification which makes him a competent interpreter or translator, and he will be examined, cross-examined and re-examined by the parties on order to ensure that he has done a good job of the translation. A judge cannot, therefore, engage in the translation or interpretation of such documents since he cannot perform the role of a witness and a judge at the same time.
(italics supplied, pages 40-41, paragraphs A-A)
From the above position, we have no hesitation in endorsing the submission of Dailey, for the appellant, that the lower court’s reliance on page 2 of exhibit 2 (a page written, according to chief Osuji, in the Spanish r Portugese Language) was an error of law.
We, accordingly, accept Dailey’s invitation to us to discountenance the said document, Usefowokan v Idowu (1969) 1 NMLR 77, 81; Abike v Adedokun ( 1986) 3 NWLR (pt. 30) 548, 554; Jaiker v International Cable Co. Ltd. (1808) 5 TLR 13, approvingly, endorsed in Owoyemi v Omotosho (1961) All NLR 304, 308; Ogboda v Adulugba (1971) 1 All NLR 68, 73.
We in consequence, expunge that age. That done, they would be noting on which to anchor the lower court’s finding at page 159 of the record that:”… on the basis of the evidence of the plaintiff and the contents of page 2 of exhibit ‘2’ that the contents of the five bags were declared in accordance with the provision of article 22 (1) Chapter III of the Warsaw Convention”
We therefore, hold that there was no legal justification for that finding. Accordingly, we, equally, resolve this issue in favour of the appellant. In all, this appeal succeeds and we, hereby, allow it.
Accordingly, we hereby enter an order setting aside the said judgment of Abutu J (as he then was) delivered on July 30, 2007. N30,000 costs in favour of the appellant.
RITA NOSAKHARE PEMU, J.C.A.:
I had the advantage of reading in draft, the lead judgment just delivered by my brother Chima Centus Nweze JCA.
I agree with his opinion and conclusion. He has adequately addressed the issues proffered by the parties in this Appeal.
Where a party omits to have a document in a foreign language translated, the Supreme Court has a duty to cause such document to be translated by the official interpreter of the Court.
The translated copies can then be put in evidence in the ordinary cause events. The translator and or interpreter will then be called to give evidence, after making his qualification known, to enable the Court regard him as a competent interpreter or translator. He will then be subjected to be examined, cross examined and re-examined by the parties. This onerous got cannot however be carried out by the sitting Judge.
Judges must not be seen to be partial but must be seen to be doing justice at all times.
The lower Courts reliance on the Exhibit 2 page 2 is erroneous.
The appeal is also allowed by me and the Judgment of the lower court is hereby set aside.
I subscribe to the consequential order made as to costs.
FATIMA OMORO AKINBAMI, JCA.:
I had the privilege of reading in draft the lead judgment just delivered by my learned brother NWEZE, JCA.
The respondent in this appeal travelled on the appellant’s Airline on 20th September 2001 from Sao Paolo, Brazil to Lagos. He checked in five items. He paid for excess luggage. He made payment for extra charges. On arrival in Lagos, he discovered that only three of his items arrived, two were missing. He made the necessary reports promptly to the appellant but received no response. He had to sue the appellant for a total of US$55,899.39 or its Naira equivalent N6,812,405.
I concur with the reasoning and conclusions of my learned brother in this Judgment. I have nothing to add. The appeal succeeds and i also enter an order setting the said judgment of Abutu J (as he then was) delivered on the 30th July 2007. I abide by the order of costs in favour of the appellant.
Appearances
Ajibola DalleyFor Appellant
AND
Chief A. N. OsujiFor Respondent
