AIR FRANCE v. MRS. BRENDA AKPAN (2015)

AIR FRANCE v. MRS. BRENDA AKPAN

(2015)LCN/7848(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of April, 2015

CA/L/1001/2008

RATIO

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROOF, WHEN DOES IT SHIFT, THE ONUS OF PROOF IN NEGLIGENCE AND WHAT THE PLAINTIFF MUST ESTABLISH IN ORDER TO SUCCEED WITH THE DOCTRINE OF “RES IMPSA LOQUITOR

It is now firmly settled that he who asserts must prove. Therefore, until a Plaintiff discharges the onus placed on him by the law and in fact practice, the burden does not shift to the Defendant. As to the onus of proof in negligence, see Seismograph Services (Nig) Ltd v. Mark (1993) 7 NWLR (Pt. 304) Page 203, Agbomagbe Bank Ltd v. CFAO Ltd (1967) NWLR Page 173.
Where the maxim is pleaded and applied, it shifts the onus of proof from the plaintiff to the defendants see Management Enterprises Ltd v. Otusanya (1987) 2 NWLR (Pt. 55) page 179, Julius Berger (Nig) Plc v. Nwagwu (2006) 12 NWLR (Pt. 995) Page 518. In order to succeed with this doctrine, “Res Ipsa Loquitor” the Plaintiff must establish two things namely:
(1) That the thing causing the damage was under the management or control of the defendant or his servants; and
(2) That the accident was of such a kind as would not, in the ordinary course of things have happened without negligence on the defendant’s part Ifeagwu v. Tabansi Motors Ltd (1972) 2 ECSLR pg. 790, Tijani v. Balogun (1974) 9 CCHCJ pg. 1471.
It is a question of fact in each case as to whether or not the thing causing the accident was under the defendant’s control. per. UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: BURDEN AND STANDARD OF PROOF; THE BURDEN AND STANDARD OF PROOF IN CIVIL CASES

In Civil cases, the burden of proof is on the party who asserts a fact to prove same, for he who asserts must prove. The standard of proof required is on a preponderance of evidence and balance of probabilities see: Section 137 of Evidence Act, Longe v. First Bank of Nig. Plc (2006) 3 NWLR (Pt. 967) pg. 228, Daodu v. NNPC (1998) 2 NWLR (Pt. 538) pg. 355, Kala v. Potiskum (1998) 3 NWLR (Pt. 546 pg. 1, Braimoh v. Abasi (1998) 13 NWLR (Pt. 581) pg 167, Alhaji Otaru & Sons Ltd v. Idris (1999) 6 NWLR (Pt. 606) pg 330, Itauma v. Akpe-Ime (2000) 7 SC (Pt. II) pg. 24.
The onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities.
Parties in Civil suits must prove their cases on preponderance of evidence and on balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. A party must prove its case by credible evidence of its witnesses and its not at liberty in law to make a case or rely on the weakness of the opposite party in order to succeed. See Iman v. Sheriff (2005) 4 NWLR (Pt. 914) pg 80, Elias v. Omo Bane (1982) 5 SC pg 25, Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) pg 65. per. UZO I. NDUKWE-ANYANWU, J.C.A.

DAMAGES; DAMAGES FOR THE TORT OF NEGLIGENCE; WHAT THE RESPONDENT MUST PROVE BEFORE THE LIABILITY OF THE APPELLANT TO PAY DAMAGES FOR THE TORT OF NEGLIGENCE CAN BE ESTABLISHED

Before the liability of the Appellant to pay damages for the tort of negligence can be established, three things have to be proved by the Respondent:
1. That the Appellant failed to exercise due care;
2. That the Appellant owed to the Respondent a duty to exercise due care; and
3. That the Appellant’s failure was the cause of the injury in the proper sense of that term. per. UZO I. NDUKWE-ANYANWU, J.C.A.

DAMAGES: SPECIAL DAMAGES; WHETHER SPECIAL DAMAGES MUST BE PLEADED AND STRICTLY PROVED

However, for special damages it must be pleaded and strictly proved. Special damages are quantifiable pecuniary loses up to the date of trial. These are assessed separately from other awards since they must be pleaded and proved. The exact amount to be claimed is known at the time of the trial. Examples of special damages are damages to clothing damages to a vehicle, medical expenses, nursing fees, taxi fares to and from hospital, and loss of earnings during the period. See Okuneye v. LCC (1973) 2 CCHCJ pg 38. per. UZO I. NDUKWE-ANYANWU, J.C.A.

DAMAGES: GENERAL DAMAGES; WHETHER ITEMS OF GENERAL DAMAGE NEED NOT BE SPECIALLY PLEADED AND THE HEADS OF THE GENERAL DAMAGES

The subhead under general damages, cover all losses which are not capable of exact quantification. It includes all non-financial losses (past and future). Items of general damage need not and should not be specially pleaded, but some evidence of such damage is required. “Heads of general damages are:
a) Pain and Suffering;
b) Loss of amenities;
c) Loss of expectation of life;
d) Future earnings or earnings capacity; and
e) Future expenses.
See Okuneye v. Lagos City Council (Supra) per. UZO I. NDUKWE-ANYANWU, J.C.A.

DAMAGES: GENERAL DAMAGES; WHETHER THE COURT HAS JUDICIAL DISCRETION IN THE QUESTIONS OF GENERAL DAMAGES
Questions of general damages falls within the judicial discretion of the court. This means that the courts are to act according to the rules of reason and justice, and not according to private opinion; and according to law; not humour, See Re Alase (2002) 10 NWLR (Pt. 776) pg. 553. per. UZO I. NDUKWE-ANYANWU, J.C.A.

COURT: DISCRETION OF THE COURT; THE DUTY OF THE COURT TO EXERCISE ITS DISCRETION JUDICIALLY AND JUDICIOUSLY

COURT: DUTY OF THE COURT; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE LED AT THE TRIAL

The law is already settled that it is the duty of the trial Judge to evaluate evidence led at the trial and make primary findings, an appeal Court has no business interfering with findings of fact made by the trial Court unless such findings are perverse or obviously contrary to laid down principles of law, See IRIRI v. ERHUROBORA (1991) 2 NWLR (Pt. 173) 254.
It must also be made plain that evaluation and ascription of probative value to the evidence of witnesses falls within the primary functions of the trial Court that saw and heard the witness as in the instant appeal. I am sure Abutu J. (later CJ) as rightly found by my learned brother discharged the duty placed on him; he conducted unquestionable evaluation of the evidence before him and arrived at a decision based on available materials before the Court, where there is sufficient evidence on record to justify the conclusion reached by the trial Court, the Appellate Court has no business interfering with the findings of the lower Court. See: AKPAGBUE v. OGU (1976) 6 S.C 63, ODOFIN v. AYOOLA (1984) 11 S.C 72, AMADI v. NWOSU (1992) 5 NWLR (Pt. 241) 273 at 280. Per. TAJJANI ABUBAKAR, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

AIR FRANCE Appellant(s)

AND

MRS. BRENDA AKPAN Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Lagos Division delivered by Honourable Justice D. D. Abutu on the
11th of December, 2006.

The facts briefly stated are as follows;

The Respondent purchased an airline ticket from the Appellant, wherein the Appellant contracted to transport the Respondent by air from Lagos to Hong Kong via France on the 4th of July, 1997. Whilst aboard, the Appellant’s aircraft flight AF 755 from Lagos to Paris, the Respondent alleged that while she was seated and asleep a heavy object fell from the luggage compartment on her head from which she sustained injury. She, therefore, brought this suit at the lower court whereof she claimed as follows:-

1. The sum of $280,000 US dollars as damages for bodily injuries, pain and suffering sustained by the Plaintiff caused by the gross negligence of the Defendant whilst aboard its flight AF 755 on the 4th of July, 1997 from Lagos to Hong Kong via paris.

2. The sum of USD 5000 being medical expenses.

The Defendant filed a Statement of Defence denying that the injuries suffered by the Plaintiff/Respondent were due to the fall of any object. Parties led evidence in support of their respective pleadings. The trial judge in its considered judgment found the Appellant liable and awarded the following:

1. N130,000 plus Naira equivalent of 430 French Francs as special damages

2. USD 20,000 as general damages.

3. Interest on the judgment sums herein at the rate 6% per annum liquidation of the judgment sum.

Dissatisfied with the judgment the Appellant filed a Notice of Appeal dated 18th of December, 2006 consisting of 4 grounds of appeal. In accordance with the Rules of Court parties have filed their respective brief of arguments. They are as follows:

1. The Appellant’s brief of Argument was filed on 8th of June, 2010 and deemed properly filed on 8th of February, 2012

2. The Respondent’s brief was filed on 11th of July, 2012.

3. The Appellant’s Reply brief was filed on 25th of September, 2013 and deemed properly filed on 24th of January, 2014.

The Appellant in its brief of argument formulated 3 (three) issues for determination, viz:-

1. Whether the lower court was right to have delivered Judgment in favour of the Respondent even when the Respondent failed woefully to prove her case on the preponderance of evidence? (Ground 1 of the Notice of Appeal).

2. Whether it was proper that the lower court awarded damages in favour of the Respondent without applying the provisions of Articles 20 and 21 of the Warsaw Convention? (Ground 2 of the Notice of Appeal).

3. Whether the lower court was right to have awarded the quantum of damages which the Appellant considers excessive and not commensurate with the alleged injury suffered by the Respondent? (Ground 3 of the Notice of Appeal).

The Respondent on the other hand formulated two issues for determination, viz:

1. On whom did the burden of proof in this case lie? And was it discharged in accordance with Article 17 of the Warsaw Convention 1929 as amended.

2. Was the award of damages by the trial judge in favour of the Plaintiff in accordance with the Law and especially the Warsaw Convention 1929 as amended?

From the issues formulated by both parties, it is clear that some of the issues are similar and can be dealt with together:

1. Appellant’s issue 1 is essentially the same as Respondent’s issue 1;

2. Appellant’s issues 2 and 3 are the same as Respondent’s issue 2.

The issues shall be discussed as harmonized above.
Before dwelling into the issues as formulated by parties the Respondent’s counsel drew the court’s attention to the objection raised by the Respondent in paragraph 3 at page 4 of its brief. The objection is as regards to the failure of the Appellant’s counsel to present any issue for determination or any arguments in support of Ground 4 of the Notice of Appeal. It is submitted by the learned counsel for the Respondent that the said ground be deemed abandoned and should be struck out accordingly by this court based on the above failure.

The Learned counsel to the Appellant had no answer to this assertion.
Where no issues for determination is formulated from a particular Ground of Appeal, that Ground of Appeal is deemed abandoned by the Appellant and would be struck out. A.N.P.P. v. INEC (2004) 7 NWLR (Pt. 871) pg. 16, Bhojsons Plc v. Daniel-Kalio (2006) 5 NWLR (Pt. 973) pg. 330, Bayero v. Mainasara & Sons Ltd (2006) 8 NWLR (Pt. 982) pg. 391.

Ground 4 is therefore struck out.

ISSUE ONE

Appellant’s Issue 1 & Respondent’s Issue 1.

It is the case of the Appellant that the burden of proof in the case lies on the Respondent and the Respondent has failed to discharge the burden. In other words, it is the duty of the Respondent as a victim of an alleged accident to plead and prove the falling of the object, the nature of the object and the fact that the injury sustained was due to the falling of the object. But the Respondent has not proved the nature of the object notwithstanding the fact that she has full capacity to identify or at least describe the object that fell on her head. The Appellant made reference to evidence adduced by the Appellant’s witness at the lower court (Exhibit 7) which shows that from the nature of the luggage compartment of the aircraft, no luggage could have fallen on a seated passenger. To support this argument, the Appellant made reference to Section 137 and 139 of the Evidence Act and the following cases NEKA B.B.B. MFG CO. LTD v. A.C.B. LTD (2004) 2 NWLR (Pt. 858) pg. 521 @ 533; Okoroafor v. Abawarinthi (1996) 2 NWLR (Pt. 3) 430.

The Respondent on the other hand, submitted that the only burden that the Respondent has is to prove that the accident leading to the injury occurred on board the aircraft of the Appellant and that this has been duly pleaded and proved. It is also the case of the Respondent that the evidence of the Respondent in this regard has not been contradicted or challenged. Accordingly, the Respondent is of the view that the burden on the Respondent has been fully discharged. The burden of proving liability, therefore, lies on the Appellant and the Appellant has failed to discharge that burden. He relied on Article 17 of the Warsaw Convention as well as the cases of King v. Bristow Helicopters (2002) UKHI 7, pg. 145; Grein v. Imperial Airways Ltd (1937) 1 KB 50; Schneider v. Swiss Air Transport Co. 686 F. Supp. 15, 17 (D.M.E. 1988); Chisolm v. British European Airways (1963) Lloyds Law Rep. Vol.1 pg. 626; CBN v. Igwilo (2007) 14 NWLR (Pt. 1054) 393 @ 406 & 435.

In proving her case in the lower court, the Respondent tendered her airline ticket, Exhibit 1. She was travelling with the Appellant, Air France, from Lagos to Hong Kong via Paris. She stated that in the middle of the night as she was sleeping, an object from the overhead locker, hit her on the head whilst she was sleeping on her seat. She said she blacked out immediately. She said no member of the crew came to her rescue and when she regained consciousness, she stood up to go to the toilet. On her way, she lost consciousness again and fell down. She regained consciousness in the arms of an air hostess. She said the doctor on board administered oxygen to her. She said her head was painful and there was a cut on her lower lip. She was not allowed to get back to her seat. She stayed with the air hostess until the plane landed in Paris. The Respondent was thereafter wheeled to a clinic in the airport, from where she was taken by a fire service ambulance to another hospital in town. There her lips was stitched up in the hospital theatre. A medical report was issued to the Respondent and tendered in evidence as Exhibit 2. The Respondent said she was abandoned at that hospital. She then took a taxi to the airport. She was given a Receipt by the taxi and a copy of it was tendered as Exhibit 3. The Respondent on getting to the airport travelled to Hong Kong with Cathay Pacific. The Respondent was not given any drugs in Paris. On getting to Hong Kong the Respondent had to be treated by the conference Doctor. She was also issued with a medical report tendered as Exhibit 4.

The Respondent could only eat ice cream and soup because of her lip injuries until the stitches were removed. After the conference, she continued her treatment in UNICAL Teaching Hospital. She still tendered the medical result from UNICAL Teaching Hospital, Exhibit 5.

This was a synopsis of the Respondent ordeal on the Appellant’s aircraft and subsequently.

The Respondent testified as pW1 and called no other witness. The Appellant called one witness, Frances Duke Matthew as DW1, a staff of the Appellant who was employed by it two years after the incident.

The DW1 even though he denied that the load overhead were not properly secured, DW1 also agreed that the Respondent suffered injuries on board the Appellant’s aircraft as per the investigation report conducted without the Respondent’s input.

From the foregoing, it is not in doubt that the injuries were suffered by the Respondent in the Aircraft of the Appellant. The Respondent proved that the injuries she described was on the Appellant’s aircraft.

The Respondent blacked out after the hit by the falling object. She claimed she called for help from the crew but no one came. As she was going to the toilet to take care of her injuries she fell down and ended up eventually in the arms of one of the air hostesses. She was attended to by a German doctor, a fellow passenger on the flight who administered oxygen to her. This is also in proof that her injuries were sustained on the flight.

On getting to Paris, she was taken by wheel chair to the airport clinic.

Apparently, they couldn’t treat her there and she was then sent to Center Hospital De Gonesse in the city of Paris.

Thereafter, the Appellant did not bother again with the Respondent. The Respondent took a taxi back to the Airport and flew Cathay Pacific to Hong Kong. All these showed the negligence of the Appellant in the treatment of the Respondent in its care.

The Respondent had narrated how her injuries occurred during her flight on the Appellant’s aircraft from Lagos via Paris to Hong Kong. The doctrine of “Res Ipsa Loquitor”, should apply in this case as the Respondent gave in evidence that something hit her on her head whilst sleeping on her seat on the Appellant’s aircraft. The Respondent herself said she lost consciousness twice after the hit. She cannot say what happened to her whilst she was unconscious. The doctrine of “Res Ipsa Loquitor” ought to apply.
“This doctrine is no more than a rule of evidence affecting the onus, of proof. The essence of the maxim is that an event which in the ordinary course of things, was more likely than not to be caused by negligence was by itself evidence of negligence depending of course on the absence of explanation. The doctrine merely shift to the onus on the Defendant. If the facts are sufficiently known or where the Defendant gave an explanation, the doctrine will no longer apply” Per Oguntade, JSC in Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) Page 173, 2006 2-3 SC page 105″.
For “Res Ipsa Loquitor” to apply, the event which gave rise to the negligence must tell its own story and it must invariably be a clear and unambiguous story of lack of duty of care Per Tobi, JSC in Ojo v. Gharoro (Supra).
The Respondent in the court below proved her case and discharged the burden placed on her by law. Having discharged that burden, it then shifts to the Appellant. It is now firmly settled that he who asserts must prove. Therefore, until a Plaintiff discharges the onus placed on him by the law and in fact practice, the burden does not shift to the Defendant. As to the onus of proof in negligence, see Seismograph Services (Nig) Ltd v. Mark (1993) 7 NWLR (Pt. 304) Page 203, Agbomagbe Bank Ltd v. CFAO Ltd (1967) NWLR Page 173.
Where the maxim is pleaded and applied, it shifts the onus of proof from the plaintiff to the defendants see Management Enterprises Ltd v. Otusanya (1987) 2 NWLR (Pt. 55) page 179, Julius Berger (Nig) Plc v. Nwagwu (2006) 12 NWLR (Pt. 995) Page 518.

In order to succeed with this doctrine, “Res Ipsa Loquitor” the Plaintiff must establish two things namely:
(1) That the thing causing the damage was under the management or control of the defendant or his servants; and
(2) That the accident was of such a kind as would not, in the ordinary course of things have happened without negligence on the defendant’s part Ifeagwu v. Tabansi Motors Ltd (1972) 2 ECSLR pg. 790, Tijani v. Balogun (1974) 9 CCHCJ pg. 1471.
It is a question of fact in each case as to whether or not the thing causing the accident was under the defendant’s control.

As in this case, the Appellant was supposed to be in control of the luggages in the overhead lockers. It is not the duty of the Respondent to ensure that luggages are secured in the overhead locker.

The Appellant, even after this accident, did not continue to show a duty of care for a fee paying passenger who got injured during its flight from Lagos via Paris to Hong Kong. The Appellant did not show any interest as to what happened to the Respondent after she was wheeled to their airport clinic. There was no evidence that the Appellant took care of the Respondent as to driving her back to the airport and putting her in another of their flights. The Respondent testified that she took a Cathay Pacific flight to Hong Kong. In spite of the pain and trauma, the Appellant never did any other thing to better the plight of the Respondent.

The Respondent had proved that the Appellant was negligent in their duty of care towards her. She proved the negligence against the Appellant which it could not counter.

The Respondent had discharged the burden placed on it by the provision of article 17 of the Warsaw Convention which provides as follows:

“The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any operations of embarking or disembarking”

The Appellant failed in its duty of care owed the Respondent.
The Appellant could not discharge the burden placed on it when the Respondent proved its case against the Appellant.
This issue is, therefore, resolved against the Appellant.

ISSUE TWO

Appellant’s issue 2 & 3 and Respondent’s issue 2.

The Appellant submitted that by the combined provision of Article 20 & 21 of the Warsaw Convention, the carrier would be absolved of liability if it is established that the injury would not have been avoided by reasonable precaution. It is the case of the Appellant that the injury sustained by the Respondent was due to loss of consciousness traceable to the medical condition (Malaria) of the Respondent. See Exhibit 2. To that extent, the Appellant submitted that he is not liable to damages for the injury sustained as it was not caused by the Appellant.

In his issue 3, the Appellant is questioning the quantum of damages awarded by the trial court. It is the case of the Appellant that there is no evidence by the Respondent to show that the amount awarded as damages are commensurate with the injury suffered. He relies on the following cases, WAEC v. Koroye (1977) NSCC 61 @ 65; Adetoro Ogooluwa v. Kitan Trading Co. Ltd (2002) 9 NWLR (Pt. 711) 157 @ 215; Agbanelo v. UBN (2000) 4 SC (Pt. 1) 234 @ 260.

On the issue of award of damages, it is the contention of the Respondent that special damages must be specifically pleaded and proved, which the respondent did by oral and documentary evidence. See exhibit 3 & 5 and the case of Cameroon Airlines v. Otutuizu (2005) 9 NWLR (Pt. 929) 202; Nzeribe v. Dave Eng Co. Ltd (1994) 8 NWLR (Pt. 361) SC. As to the quantum of damages awarded, it is the contention of the Respondent that the trial judge has not exceeded the limit of damages described by Article 22 of the Warsaw Convention and, therefore, the amount awarded is well within the power of the trial court.

The Appellant in his reply brief submitted that the amount of $20,000 [Twenty Thousand Us Dollar) awarded is well above the limit of 250,000 French Franc described by the convention and that the trial court has not satisfied the conditions laid down by the Supreme Court for exceeding the limit under the convention. He relied on the Supreme Court Judgment in Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) pg.512.

I already held in issue one that the Respondent had satisfied the burden placed on her to prove her case on the preponderance of evidence and balance of probabilities. When the burden shifted, the Appellant was not able to sufficiently give evidence that they were not guilty of negligence.

Therefore, the Respondent is entitled to damages. However, the quantum is what is in issue here. Before the liability of the Appellant to pay damages for the tort of negligence can be established, three things have to be proved by the Respondent:
1. That the Appellant failed to exercise due care;
2. That the Appellant owed to the Respondent a duty to exercise due care; and
3. That the Appellant’s failure was the cause of the injury in the proper sense of that term.

The Appellant’s allegation that the Respondent had malaria which caused the injury the Respondent suffered was not proved and as such, the Appellant could not prove that the injury was not caused by it’s negligence.

The Respondent, in her claim, had carefully itemized it into special and general damages.

Under special damages, the Respondent pleaded these items in her statement of claim. However, the addition as presented by the Respondent was wrong as the total of what was claimed under medical expenses was N300,000 when in fact it is N400,000.00.

The Learned trial Judge had only granted the amount proved in special damages. The learned trial Judge granted N130,000 for hospital bills as per Exhibit 5 and also a taxi fare of 430 French Francs. I do not find these as perverse and I will, therefore, allow them to stand.

The courts have held that there is no fixed rule by which to assess general damages. It is indeed difficult to ascertain for instance, what will compensate a man for the loss of an eye or a limb, or for pain and suffering; or disfigurement, loss of amenity or enjoyment of life; or shortened expectation of life.
The matter is, therefore, at the discretion of the court to award a fair and reasonable compensation having regard to the circumstances of the particular loss. See Okuneye v. LCC (Supra).
Thus, where injury is to be compensated by damages, the court should, as nearly as possible, get at the sum of money which will put the party who has been injured (or who has suffered) in the same position as he would have been in, if he had not sustained or suffered the injury for which he is now to get compensation Anumba v. Shohel (1965) 2 All NLR pg.183.
Questions of general damages falls within the judicial discretion of the court. This means that the courts are to act according to the rules of reason and justice, and not according to private opinion; and according to law; not humour, See Re Alase (2002) 10 NWLR (Pt. 776) pg. 553.

A court in all cases has to exercise its discretion judicially and judiciously see Offodile v. Egwutu (2006) 1 NWLR (Pt. 961) pg. 421.
A proper exercise of discretion should be according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular. It must be upon facts and circumstances presented to the court, from which it must draw a conclusion governed by law. See: Union Bank of Nig Plc v. Adjarho (1997) 6 NWLR (Pt. 507) pg. 112 Re Alase (supra).
The trial Judge exercised his discretion judicially and judiciously. He had evaluated the facts and evidence placed before him in exercising his discretion. I have no reason to upturn this. The courts have always frowned at tort feasors who have not shown any remorse for the harm they have caused. The Appellant never enquired after the Respondent as soon as she was wheeled to the airport clinic. A letter expressing their regret for what might have happened to the Respondent might have assuaged the Respondent.
This court will not interfere with a proper exercise of discretion by the lower court. I will, therefore, leave the general damage as assessed by the lower court.

In effect, this issue is also resolved against the Appellant. This appeal is unmeritorious and, therefore, dismissed. I affirm the judgment of the lower court including the special and general damages awarded therein and the interest of 6% awarded.

Cost of N50,000 is awarded to the Respondent against the Appellant.

TAJJANI ABUBAKAR, J.C.A.: Appellants issue number one deals with evaluation of evidence by the learned trial Judge. Appellant said the Respondent failed woefully to prove her case on preponderance of evidence.

At page 64 of the record of appeal, the learned trial Judge said as follows:

“The evidence relating to the accident which led to the injury to the Plaintiffs lower lip while on the aircraft is that of the Plaintiff along. Exhibits 2, 3, 4 and 5 confirm the evidence of the plaintiff that she sustained injuries while on the Defendants aircraft. The witness called to give evidence in rebuttal was not on the plane with the Plaintiff on the 4th of July, 1997. The witness was employed by the Defendant after the incident. DW1 said his evidence is derived from the records in the file of the case in his office. The evidence of the Plaintiff in this case has not been challenged and has not been materially rebutted. I accept the evidence of the Plaintiff and I find that while on the Defendants aircraft on the 4th of July, 1997 an object fell on the head of the Plaintiff as a result of which the plaintiff lost consciousness for some time. I find that after regaining her consciousness the Plaintiff on her way to the toilet in the Plane fell down and sustained injuries on her lower lip. The evidence of the Plaintiff on this point being unchallenged and uncontroverted ought to be accepted”.

My lord and learned brother NDUKWE-ANYANWU, JCA thoroughly dealt with the issues submitted for determination, I entirely agree with the reasoning and conclusion and join in holding that the appeal lacks merit and must be dismissed, it is hereby dismissed, and the decision of the lower court delivered on the 11th day of December, 2006 is affirmed. I abide by the Consequential orders including order on costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, U. I. NDUKWE-ANYANWU, JCA and I agree with the reasoning and conclusion arrived in the judgment.

I just wish to emphasize the issue of the shifting nature of burden of proof in civil proceedings. The standard of proof in civil matter is on the preponderance of evidence which simply means balance of probabilities and that is achieved when the totality of the evidence is considered in order to determine which side has more weight and which one has less weight, see OLUJINLE v. ADAEGBO (1988) NWLR (Pt. 75) 238.
Furthermore the burden of proof starts with the plaintiff and keeps shifting back and forth until it comes to rest on the party who would lose if no further evidence is presented, see the case of OKOYE v. NWANKWO (2014) LPELR (SC) where the apex court picked the definition of shifting burden of proof from Black’s Law dictionary thus:
“Transferring it (i.e. burden of proof) from one Party to the other, or from one side to the other, when he upon whom it rested originally has made out a PRIMA FACIE case or defence by evidence, of such a character that it then becomes incumbent upon the other side to rebut it by a contradictory or defensive evidence”.

The respondent in this case presented evidence in proof of pleadings and thus shifted the burden onto the appellant who failed to shift back the burden. Having done that judgment must be given in favour of the respondent. The appellant had no defence and must be found liable in damages as assessed by the trial court.

For this and other reasons in the lead judgment, I too dismiss the appeal and abide by the orders made in the lead judgment.

Appearances

S. E. Elema, Lanre OgunyemiFor Appellant

AND

For Respondent