EGYPT AIR v. AUWALU RABIU DANSHARIFF
(2019)LCN/13907(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of May, 2019
CA/K/656/2017
RATIO
AVIATION LAW: LIMITED LIABILITY: WILLFUL MISCONDUCT ON THE PART OF AVIATION STAFF
The carrier in the same vein, cannot exercise its right to invoke limit of its liability if by the facts established in evidence, the conduct of the Air Carrier or those of the agents amount to Willful Misconduct. See: British Airways v. Atoyebi (2014) LPELR-23120 (SC); Harka Air Services v. Keazor (2011) LPELR (SC); Cameroon Airlines v. Otutuizu (2011) LPELR-217/2004 9SC); Oshervire v. British Caledonian Airways (1990) 7 NWLR 507. PER SAIDU TANKO HUSSAINI, J.C.A.
AVIATION LAW: DEFINITION OF WILLFUL MISCONDUCT
In Harka Air Services Nig. Ltd v. Keazor (2011) 13 NWLR (Pt. 1204) 320, 342, Rhodes-Vivour, JSC defined ?Willful Misconduct? as:
A deliberate wrong act by a pilot airline staff or its agent which gives rise to a claim for damages by passengers. When staff of an airline act with reckless indifference, such unacceptable behavior especially by a professional person amounts to willful misconduct.?
See further the decision in British Airways v. Atoyebi (2014) LPELR-23120 (SC). PER SAIDU TANKO HUSSAINI, J.C.A.
Before Their Lordships
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
EGYPT AIR Appellant(s)
AND
AUWALU RABIU DANSHARIFF Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The Respondent was plaintiff at the Federal High Court, Kano where, by the writ of Summons and the Statement of Claim dated and filed on same date, he claimed against the defendant now Appellant, all the reliefs set out at paragraph 17 of the Statement of claim thus:
(a) A declaration that the refusal of the defendant to return to the plaintiff his 2 luggages in its custody since 29th May, 2013 is a violation of the terms of airlifting between the plaintiff and the defendant.
(b) An order compelling the defendant to pay the plaintiff the total sum of 5550.3 GBP equivalent to N1,381,957.47 (One Million Three Hundred and Eighty One Thousand, Nine Hundred and Fifty Seven Naira forty Seven Kobo Only) being the purchase price of the defendant items contained in the two luggages lost by the defendent between the hours of 29th and 30th of May, 2013.
?(c) An order compelling the defendant to pay to the plaintiff the total sum of 194.03 GBP equivalent to N48313.47 (Forty-Eight Thousand Three Hundred and Thirteen Naira Forty-Seven Kobo Only) being the price paid by the plaintiff to the defendant for the excess luggages.
(d) An order of this Court awarding he sum of N5,000,000.00 as general damages to the plaintiff for breach of contract, inconveniences for loss of valuables as well as ups and down to Mallam Aminu Kano International Airport to check the luggage?s.
(e) Cost of filing and prosecuting this action.
The claim was denied vide the Statement of defence filed on 11th November, 2013 along with other relevant papers (Record: Pages 29-34).
Parties on both sides at the hearing elicited evidence of one (1) witness each and tendered some Exhibits. Through the respondent, Exhibits marked 1, 2, 3 a, b, c, d 4, 5 & 6 were admitted in support of the case.
The Respondent and members of his family comprising his wife and their baby booked a flight with the appellant, and obtained a ticket and boarded the aircraft on the 29th May, 2013 from London to Mallam Aminu Kano Airport, Kano Nigeria. He took along with him some luggages comprising of six bags, which he also checked-in. The six luggages were in excess of 32 Kilograms weight allowed per passenger the respondent paid for the excess luggage.
On their arrival at Mallam Aminu Kano Airport, two (2) out of the six bags could not be seen, traced or located hence the respondent immediately lodged a report/complaint with the Appellant?s Staff at Mallam Aminu Kano Airport. Respondent was told to return after a while but got exasperated after repeated efforts to make the appellant produce the two (2) luggages. The Respondent finally instituted action at the Federal High Court as per the claim (supra).
In the considered judgment delivered on the 10th February, 2019 the Federal High Court (herein after referred to as the ?Court below? or the ?trial Court?), found for the respondent and granted him the reliefs as per the claim:
(i) At Paragraph 17 (a) (b) (c) of the Statement of Claim.
(ii) General damages assessed in the sum of N100,000.00 for breach of contract, inconveniences for loss of valuables e.t.c.
The defendant now appellant, had on the 25th March, 2015 appealed to this Court against that judgment and order of the Court below. The Notice of Appeal contains four (4) grounds and the grounds of Appeal, shorn of the particulars, are as follows:<br< p=””
GROUND 1
The Honourable trial Court erred in law in awarding special damages of the sum of N1,530,271.00 (One Million, Five Hundred and Thirty Thousand Two Hundred and Seventy One Naira) without strict proof thereof.
GROUND 2
The Honourable trial Court erred in law in not applying ARTICLE 22(2) of the WARSAW CONVENTION 1929 domesticated as a Nigerian Law by the Carriage by Air (Colonies, protectorates and Trust Territories Order 1953, vol. X1 of the laws of the Federation of Nigeria 1958 in the assessment of the Appellant?s liability for missing or short landed bag when there no evidence that the missing or short landed bag was caused by the Appellant?s willful misconduct.
GROUND 3
The trial Court erred in law when he held that the ?the defendant did not plead the limitation of defence.
GROUND 4
The trial Court erred in law when it held as follows:
?The contention of the defendant that the plaintiff never filed Property Irregularity Report (PIR) in the face of admission of plaintiff in paragraphs 14 and 15 will in my mind not avail the defence from any liability under Article 26 since the plaintiff made a complain immediately he discovered the missing of his luggage and also followed the complaint with the consultation of lawyer to formally write the complaint.?
From the Four (4) grounds above, the appellant distilled two (2) issues in their brief of argument filed on 19th March, 2018. Issues formulated for determination are:
?1. Whether the lower Court was right when it awarded special damages in the sum of 5550.03 GBP equivalent to N1, 381,957.47 (One Million Three Hundred and Eighty One thousand, Nine Hundred and Fifty Seven Naira, Forty Seven Kobo Only) in favour of the Respondent, notwithstanding that there was no evidence on the record showing that the respondent made a special declaration in respect of the lost cargo, paid a supplementary sum (where required) and or purchased price and description of the alleged lost items? (distilled from ground 2)
2. Whether the lower Court was right in awarding damages in excess and far beyond the limit of the carrier?s 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, Protectorates and Trust Territories) order, 1953? (Distilled from grounds 2, 3 and 4)
In response to the appellant?s brief of argument, respondent filed his;
(1) Notice of Preliminary Objection, on the 2nd January, 2019 and challenged the competence of this appeal.
(2) Respondent?s brief of argument filed on the same 2nd January, 2019.
He raised one (1) issue for determination in the appeal thus:
?Whether the lower Court was right when it awarded damages in the sum of 5550.03 GBP equivalent to N1,381,957.47 in favour of the Respondent and refuse to allow the appellant to limit his liability under the provision of Article 22 of the Warsaw Convention
There is the Reply brief filed on 27th February, 2019 by which the appellant responded to the issues raised in the Preliminary Objection.
Learned counsel adopted their respective briefs at the hearing on the 28th February, 2019.
I will first address issues raised and contained in the Preliminary Objection and the sole or the only issue raised for this purpose is WHETHER THE APPELLANT?S ISSUES FOR DETERMINATION ARE COMPETENT?
Respondent?s counsel has contended in his brief of argument that the two (2) issues formulated by the appellant for determination in the appeal are not competent in so far as the issues did not derive from the grounds ascribed to those issues. It was argued that Issue No. 1 was not completely covered by Ground No. 1 just as issue No. 2 did not completely cover grounds 2, 3 and 4 in the Notice and grounds of appeal except part of Ground 2. We were urged to strike out the appeal in the absence of any competent ground of appeal. He relied on Olumolu v. Islamic Trust of Nigeria (1996) LPELR-2626 (SC); Ogunkoya v. George (2013) LPELR-20686 (CA).
The appellant has argued per contra in his reply brief stating that a community reading of ground 1 and the particulars of error thereto will reveal that issue No. 1 was derived from Ground 1 of the Notice and grounds of appeal and the particulars read together and Ditto, issue No. 2 as having been derived from grounds 2, 3 and 4 in the Notice of appeal, by reason of which the appeal is competent.
I have considered the submissions made by counsel on this point and from the authorities at my disposal, it is settled that an issue will be regarded as having derived from a ground of appeal when the issue is consistent with that ground of appeal. See Okolo v. Okoye (2014) LPELR-23016 (CA).
In Ngige & Anor. v. INEC (unreported) Appeal No. CA/E/EPT/02/2014 delivered on 15th April, 2014, this Court held that:
?An issue can only be regarded as deriving from a ground of appeal if the complaint or question it raises is same with that on the ground from which it purports to be derived.?
In Ayinde & Ors. v. Adigun (1993) 11 SCNJ the Supreme Court held that issues for determination should not merely be consistent with the ground it derives from but should fall within the scope and confines of the ground of appeal relied upon. See further: Osinupebi v. Saibu (1982) 7 SC 104; Unegbu v. Woli (1997) 2 NWLR (486) 194.
?So, the question may be asked, whether:
(i) Issue No. 1 is consistent with ground one (1) in the Notice and grounds of appeal?
(ii) Issue No. 1 fall within the scope and confines of ground 1 of the grounds of appeal
Questions similar to (i) and (ii) above can also be identified and presented with regard to Issue No. 2 vis–vis grounds 2, 3 and 4 contained in the Notice of appeal.
However, talking about the former, the complaint laid and presented under ground 1 in the appellant?s ground of appeal, in the main, is the absence, as alleged, of evidence of such quality and specialty as can lead to a decision or order bein
