EMIRATE AIRLINE v. MISS PROMISE MEKWUNYE (2014)

EMIRATE AIRLINE v. MISS PROMISE MEKWUNYE

(2014)LCN/7691(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of April, 2014

CA/L/1241/2010

RATIO

PRACTICE AND PROCEDURE: CROSS EXAMINATION; THE EFFECT OF FAILURE TO CROSS EXAMINE

The law is that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. See Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Oforlete v. State (2000) 12 NWLR (pt. 681) 415 @ 436; Adesule v. Mayowa & Ors (2011) LPELR-3697 (CA) per. CHINWE EUGENIA IYIZOBA, J.C.A.

COURT: POWER OF THE COURT; WHETHER THE COURT HAS NO POWER TO AWARD TO A CLAIMANT THAT WHICH WAS NOT CLAIMED

It is trite law that a court has no power to award to a claimant that which was not claimed. Badmus V. Abegunde (1999) 11 NWLR (Pt. 627) 493, Onu JSC observed:
“It is trite law that the court is without power to award to a claimant that which he did not claim. This principle of law has time and again, been stated and re-stated by this court that it seems to me that there is no longer any need to cite authorities in support of it. We take the view that the proposition of the law is not only good law but good sense. A court of law may award less, and not more than what the parties have claimed. A fortiori, the court should never award that which was not claimed or pleaded by either party. It should always be borne in mind that a court of law is not a charitable institution, its duty in civil cases is to render unto every one according to his proven claim.” per. CHINWE EUGENIA IYIZOBA, J.C.A.

DAMAGES: SPECIAL DAMAGES; WHETHER THE CLAIM UNDER SPECIAL DAMAGES REQUIRES STRICT PROOF

The important point however is that the claim is for special damages and the law requires that there must be strict proof of same. In Odulaja v. Haddad (1973) 11 SC 357 or (1973) 1 ALL NLR 191, the Supreme Court held that:
“The claim under special damages requires strict proof. Strict proof however does not mean unusual proof or proof beyond reasonable doubt. What is required is that the Respondent claiming should establish his entitlement to that category of damages by such credible evidence of such character as would suggest that he indeed is entitled to an award under that head.”
See also Orient Bank (Nig.) Plc v. Bilante Int. Ltd (1997) 8 NWLR (Pt. 515) 37, S.P.D.C. (Nig.) Ltd v. Tiebo VII & Ors (2005) 9 NWLR (Pt. 931) 439 where Oguntade JSC observed:
“In some cases, it may be necessary to show documentary proof of loss sustained while in others it may be unnecessary. The important thing is that the evidence proffered must be qualitative and credible and such as lends itself to quantification. Each case depends on its own facts and circumstances. There are cases where it will be impossible to pass the test required unless documentary proof is produced to show the loss sustained. In others, oral evidence which is credible may be sufficient. The character of the evidence called must measure up to the circumstances of the occasion or the expectation of a reasonable man.” per. CHINWE EUGENIA IYIZOBA, J.C.A.

Before Their Lordships

AMINA ADAMU AUGIEJustice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria

Between

EMIRATE AIRLINEAppellant(s)

AND

MISS PROMISE MEKWUNYERespondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Judgment of Archibong J of the Federal High Court Lagos Division delivered on 15/11/10 wherein the learned trial Judge held inter alia that the Appellant’s refusal to carry the Respondent in its aircraft from Dallas to Lagos on the 17th day of December 2007 amounted to a breach of its contract of carriage with the Respondent and that no limitation of liability applied to the contract.

The Respondent as Plaintiff on 7/5/07 bought the appellant’s airline ticket (electronic) for the sum of US $2,067 (Two thousand and sixty seven dollars) to enable her travel from Dallas – Houston -Dubai- Lagos and back. The Respondent alleged that the said ticket exhibit “PM2” was duly confirmed and had on its face the inscription “17 Dec Ok”. When the respondent turned up at the airport to travel on 17/12/07, the Appellant denied her boarding and made no alternative provision for her carriage.

The respondent’s father who was her attorney in the court below called the appellant’s office at the airport in the USA to find out what went wrong and why the respondent was denied boarding. The Respondent alleged the appellant offered no reason for their failure to carry the Respondent and failed also to provide an alternative aircraft. The respondent’s father then had to quickly arrange to purchase another electronic ticket from American Airlines on 18/12/07 for the sum of US$3,200 (three thousand two hundred dollars) and routed Dallas – Fort Worth -London Gatwick-Dubai -Lagos and back. The Respondent eventually travelled on 19/12/07 and then sought from the Appellant a refund of the two (2) tickets (Emirates and American Airlines tickets). The Respondent’s attorney wrote to the appellant demanding a refund of the money paid for the two (2) tickets. Simba Travels & Tours, an agency through whom the tickets were bought on 25/1/08 also applied for the refund and handed the two original electronic tickets to the Appellant. The Appellant, according to the respondent unilaterally and without authorization paid to a staff of Simba Travel & Tours Ltd the refund of its own ticket less certain charges and withheld the ticket of American Airline without refunding the money. The respondent’s attorney immediately rejected the refund and directed Mr Clement Dolor, of Simba Travels & Tours who had testified as PW2 to return the money but the appellant refused to take back the money. The respondent then by a Writ of Summons dated 18/9/08 and an amended Statement of Claim dated 20/3/09 sued the Appellant as Defendant claiming as follows:

i. A Declaration that the refusal of the Defendant to carry the Plaintiff from Dallas-Houston-Dubai-Lagos on the international flight amounts to a breach of contract of carriage by air.

ii. An order of this court that the Defendant pays the sum of USD3, 200 (Three Thousand, Two Hundred US Dollars) being special damages or the cost of the alternative arrangement the Plaintiff made in buying another airline ticket from Dallas F worth-London-Gatwick-Lagos.

iii. An order for the payment of N10, 000,000,00 (Ten Million Naira) being general damages for the breach of contract of carriage.

iv. An order for the payment of the sum of N1, 000,000.00 being the cost of instituting this action.

The Defendant in response filed a Statement of defence dated 8/5/09 denying being in breach of the contract of carriage and claiming that the Emirates Conditions of Carriage envisage that denial of boarding can occur and has adequate provisions for the liability and entitlement of the parties. At the hearing, the Respondent called two witnesses and tendered 6 exhibits while the Defendant called one witness and tendered 3 exhibits. The parties thereafter filed their final written addresses which were duly adopted. The Court delivered its judgment on 15/11/10 in which it found that the contract between the parties was an International Contract of Carriage by air and governed by the Montreal Convention as domesticated by Civil Aviation Act 2006 and that the particular contract of carriage was underpinned by the Conditions of Carriage of passengers and baggage of the Defendant’s airline. The Court held that the Defendant’s refusal to carry the Plaintiff from Dallas on the 17th of December 2007 amounted to a breach of its Contract of Carriage with the Plaintiff and that no limitation of liability applied to the contract and therefore awarded to the Plaintiff (i) A ticket refund in full without any deduction or charge (ii) N2.5M damages & (iii) N250, 000 legal cost.
Dissatisfied with the judgment, the Defendant filed a Notice of Appeal dated 1st December, 2010 containing seven grounds of appeal. The grounds of appeal at pages 280 – 284 of the Record of appeal did not follow the usual rules for brief writing. They contained lengthy arguments and citation of authorities. Learned counsel for the Appellant in formulating these grounds of appeal fell into the same error as the Appellant’s counsel in Appeal No. CA/L/198/2012, Emirate Airline v. Ngonadi delivered by this court on 19/12/13. Therein A. A. Augie JCA who delivered the lead judgment observed:

“Now the rules regarding brief writing does not require setting arguments in support of Grounds of Appeal; that is obviously, the function of the brief itself – see Ezewusim v. Okoro (1993) 5 NWLR (Pt. 294) 478 and Idika v. Esiri (1988) 2 NWLR (Pt. 78) 563, wherein Nnaemeka-Agu’ JSC, observed quite aptly that –
“Counsel will do well to remember that a ground of appeal is intended to be a precise statement of the head of complaint of an appellant in an appeal, and that he should leave the argument and citation of authorities for his client’s brief. It is contrary to the rules to argue a party’s case first in his grounds of appeal and later in his brief and oral argument.”
The essence of a ground of appeal is to avail the opposite party of the nature of the Appellant’s complaint in words that are not vague, and the purpose of particulars of error is to elucidate and advance reasons for the said complaints in the grounds of appeal – see Abiodun v. FRN (2009) 7 NWLR (Pt. 1141) 489. Particulars of error highlight the complaint against the judgment on appeal – see Diamond Bank Ltd. V. P.I.C. Ltd (2009) 18 NWLR (Pt. 1172) 67 and Amuda v. Adelodun (1997) 5 NWLR (Pt. 506) 480 SC……..”

Learned counsel is advised to take note of these anomalies in his grounds of appeal and also to take out time to study Nnaemeka-Agu’s book on Brief Writing. However the courts these days prefer substantial justice to undue emphasis on technicalities. The anomalies will consequently be ignored as they have not affected the essence of the grounds of appeal.

Out of the seven grounds, the Appellant formulated the following issues for determination.

1. Whether in the light of the trial court’s finding that the contract between the parties was an international contract of carriage by air, governed by the Montreal convention 1999 and the Civil Aviation Act, 2006 and underpinned by the Appellant’s Conditions of carriage of passengers and baggage, the court was right to hold that the Appellant’s refusal to carry the Respondent from Dallas on the 17th of December, 2010 amounted to a breach of its contract of carriage with the Respondent and that no limitation of liability applied to the contract.

2. Whether the learned trial Judge was right when he awarded the sum of N2.5M in general damages to the Plaintiff after awarding “A ticket refund in full without any deduction or charge”

3. Whether the learned trial Judge was right when he awarded the Plaintiff a full ticket refund without deductions when it was not claimed by the Plaintiff.

4. Whether the learned trial Judge was right when he awarded the sum of N250, 000 in legal fees when the Plaintiff claimed N1, 000,000 but led no evidence in proof.

5. Whether there was justifiable ground for the learned trial Judge to have held as follows:

“I do not believe that neither the Plaintiff nor her agent did not re-confirm the ticket issued her or in any way defaulted in sustaining the validity of the issued ticket. I believe PW 1 Clement Dolor acting on behalf of the Plaintiff personally or through Simba Travels & Tours limited made such re-confirmation of the said ticket as indeed would be expected of an experienced Travel Agency staff such as himself.”

6. Whether the trial court’s belief that the Defendant Airline was constantly engaged by either the Plaintiff in Dallas or her agent in Nigeria for the period leading up to her travel date or the 17th December, 2007 and its ruling that no valid reason was conveyed to the passenger/plaintiff for refusing to carry her on her due date is supported by evidence

The Respondent on her part formulated the following issues for determination:

(i) Whether the appellant can in the circumstances of this case exclude or limit its liability under the contract of carriage by air.

(ii) Whether the respondent is entitled to damages as awarded by the lower court.

(iii) Whether there was a breach of contract to carry the respondent by the appellant.

(iv) Whether an appeal against the award of “legal costs” without the leave of court is competent

The Appellant’s issues 1, 5 & 6 cover the Respondent’s issues i & iii while the Appellant’s issues 2, 3 & 4 cover Respondents issues ii & iv. I shall adopt the Appellant’s issues in the determination of this appeal but issues 1, 5 & 6 will be taken together and also issues 2, 3 & 4 will be taken together.

ISSUES 1, 5 & 6:

Appellant’s arguments:

Learned Counsel for the Appellant in his brief submitted that the trial court had no basis for holding that no limitation of liability applied to the contract between the parties. He submitted that even assuming (without admitting or conceding) that there was evidence that the Appellant wrongly refused the Respondent carriage on 17th December 2007, and therefore the said wrongful refusal amounted to a breach of contract of carriage, the learned trial Judge erred when he held that no limitation of liability applied to the contract. He submitted that to hold that the limitation of liability did not apply to the contract and then to proceed to award damages as claimed is to award damages at large. Counsel cited the provisions of Article 48(1) of the Civil Aviation Act 2006, the case of Cameron Airlines v. Jumai Abdul-Kareem 2003 II NWLR (Pt 850) I; Hassan v. Maiduguri Mgt. Committee (1991) 8 NWLR PT 212 pg 738 @ 741; and Article 29 of the Montreal Convention. He submitted that notwithstanding the clear provisions of the statutes and the relevant case law, the trial court awarded to the Respondent damages in excess of the liability limits. He submitted that once the trial court agreed that the contract was an international contract of carriage by air and that it is governed by the Montreal Convention 1999 and the Civil aviation Act 2006 and underpinned by the Defendant (Emirates’) conditions of carriage of passenger and baggage, the trial court was wrong not to have applied the provisions of both statutes and the Defendant’s conditions of carriage of passengers and baggage.

Learned counsel quoted extensively the provisions of the Emirates Conditions of Carriage of Passengers and Baggage 2006 especially paragraph 9.3.1 which provides:

“If we cannot carry you in your ticketed class of service on a flight for which you have a confirmed reservation and have met all applicable check-in and boarding deadlines, we will carry you on one of our latter flights in your ticketed class of service, or, if you choose, we will carry you on another of our flights in a different class of service and will refund you the difference between the applicable fare, taxes, fees, charges and surcharges paid for your ticketed class of service and, if lower, the fare, taxes, fees, charges and surcharges applicable to the class of service in which you are actually carried. Alternatively, you may choose to receive an involuntary refund in accordance with article 10.2…

9.3.2 If article 9.3.1 applies to you, we will pay to you any compensation due to you under applicable law and our denied boarding compensation policy”.

He further submitted that the Appellant’s case is a case of denied boarding and in the circumstances the provisions of the Respondent’s conditions of carriage that are relevant for consideration are the conditions relating to denied boarding. Counsel submitted that in compliance with Article 9.3.1, the Respondent’s agent applied for and received a refund of the Respondent’s airfare on behalf of the Respondent; that having made a refund to the Respondent’s agent, the Appellant had met all its contractual obligations to the Respondent. Counsel submitted that the trial Judge failed to avert his mind to the provisions of Article 9.3.1 and to apply its provisions to the case of the Respondent. He submitted that this failure occasioned a miscarriage of justice when the court held that there was a breach of the contract of carriage and that no limitation of liability applied and proceeded to award non compensatory damages to the Respondent. Counsel submitted that Article 9.3.1 limits the compensation payable to a passenger who has been denied boarding amongst others to a refund of the cost of the flight ticket less deductions. To award anything more is to award damages at large and outside the provisions of the contract and contemplation of the statutes.

Learned counsel submitted that contrary to the trial court’s finding, there was no evidence that the Appellant wrongly refused the Respondent carriage and there was no basis for believing the Respondent’s claim that she reconfirmed her ticket several times through her agent. Counsel submitted that from the evidence on record, the appellant clearly and firmly denied that the respondent confirmed or reconfirmed her ticket. The Appellant persistently insisted that the reason the Respondent was denied boarding was due to the fact that she did not confirm her ticket for her travel. He submitted that this was all that the Appellant was required to do in the circumstances. The onus of proof would then shift to the party who would fail if no further evidence was adduced in support of its claim. Counsel submitted that that party was clearly the Respondent as he who asserts must prove. He submitted that the Respondent did not discharge that burden other than the bare assertion or her repeated claim that she reconfirmed her ticket. He argued that this claim was insufficient to satisfy that burden placed on her or for the court to believe her and then proceed to give judgment in her favour. Counsel submitted that there was no basis for the belief of the learned trial Judge that the ticket was reconfirmed. He further submitted that the trial court had no basis for holding that the refusal of the Appellants to carry the Respondent amounted to a breach of contract when the Appellant adduced legally admissible and justifiable evidence to show that its refusal was proper and the Respondent was unable to show that the refusal to carry her on the flight was unjustified.
Counsel submitted that a trial court must give reasons for believing or disbelieving a witness and that it is not enough and not acceptable in law for a trial judge to simply say “I believe” or “I didn’t believe a witness”. He ought to state the reasons for believing or not believing each particular witness. He cited the cases of ATANDA V. AJANI (1989) 3 NWLR PT 111 AT PG 511 and NWOKE V. OKERE (1994) 5 NWLR (PT 343) 159.

Counsel submitted that there was no evidence led that the Appellant airline was constantly engaged by either the Respondent in Dallas or her agent in Nigeria as concluded by the trial court other than the bare claim of the Plaintiff and the viva voce evidence of the Plaintiff’s witness which said claims were stoutly and vigorously denied by the Appellants. Counsel submitted that the trial court also erred when it held that no valid reason was given to the Respondent for refusing to carry her on the Appellant’s flight on her due date when there is ample evidence as strenuously adduced by the Appellant that the reason for the denial of boarding was as a result of non reconfirmation of the flight reservation by the Respondent. He submitted that it was in the knowledge and acceptance of this explanation that the Respondent’s agent applied for and received a ticket refund which the Respondent’s agent admitted was in his possession. He submitted that the reason given by the Appellant was a valid reason which was never rebutted by the Respondent. Counsel submitted that if the trial court were to hold that the said reason was not valid, then it behoves on the court to give reasons why it believes and concluded that the reason was not valid. No such reasons were given or proffered by the trial court. In the circumstances, he submitted that the court’s ruling was without a basis and a foundation and urged us to overturn the reasoning, conclusion and the holding of the trial court.

RESPONDENT’S ARGUMENTS:

Learned counsel for the Respondent submitted that the appellant cannot, whether under its conditions of carriage or under the Montreal Convention exclude or limit its liability. He submitted that there is no right under the paramount law which is the Montreal Convention to deny a passenger boarding or carriage; and that there is even no absolute right to deny a passenger boarding or carriage under the appellant’s conditions of carriage and that if one exists, it is null void and of no effect. Counsel argued that the respondent did not in any way come within the purview of Article 7.1 of the appellant’s conditions of carriage that perhaps allows them to refuse carriage. He submitted that the capricious exercise of non – existent right to deny the respondent carriage to Nigeria on 17/12/2007 was null and void and constituted a breach of the contract of carriage between the appellant and the respondent. Counsel submitted that the Montreal convention is the paramount law and provides in its Article I (1) that “this convention applies to all international carriage of persons baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.” He submitted relying on British Airways v. Atoyebi (supra) that the Montreal Convention governed the contract and the relationship of the parties. Counsel submitted that the contract of the parties is that the Appellant shall, upon the purchase of flight ticket by the Respondent, carry the Respondent aboard its flight on 17th December, 2007 from the Dallas Texas in U.S.A en route to Lagos, Nigeria; that the failure on the part of the Appellant to allow the Respondent to board its flight on the agreed date of departure is a breach of fundamental term because carriage of the respondent is at the centre of the entire contract.

On issue 3, whether there was a breach of contract to carry the respondent by the appellant, learned counsel submitted that by the purchase of the electronic ticket for a named day, a contract of carriage was established. He submitted that it is not in dispute that the respondent bought a ticket from the appellant. The appellant however contends that the respondent did not confirm the ticket before the travel date. Counsel argued that this is at variance with the evidence given by PW1 and PW2 and exhibit “PM2” (the electronic ticket) which has on its face “17 Dec Ok”. Counsel submitted that the inscription “OK” on the ticket in aviation and ticketing parlance means “confirmed” for the named date. Counsel further argued that assuming without conceding that they are wrong, having purchased the ticket for a particular date or day, confirmation or reconfirmation was unnecessary unless the appellant complied with its Article 5.6.1 of the conditions of carriage. There was no evidence before the lower court that the appellant at any time requested for further reconfirmation before the travel date. Counsel submitted that the respondent upon purchase of the ticket in May 2007 and having confirmed her flight for 17/12/2007, the appellant was bound to carry her as agreed. He argued that the appellants contract of carriage Article 3.1.1. states: “we will provide carriage only to persons who possess a valid ticket and a valid passport”. There was no evidence that the respondent did not possess a valid ticket and a valid passport on 17/12/2007. The appellant therefore was bound to carry the plaintiff as agreed. Counsel submitted that the appellant by failing to carry the Respondent was in breach of the contract.

APPELLANT’S REPLY ON LAW:

Learned counsel submitted that the doctrine of breach of fundamental obligation being relied on by the respondent can only apply where there is an attempted exclusion of liability from warranties and conditions. He submitted that no warranty was given to the respondent that she will be flown at any cost even where there is a clear and obvious breach of her conditions of carriage. Counsel submitted that the question for resolution is whether the requirement for confirmation and the reconfirmation of a ticket is one that the respondent is contractually bound to obey. Whether the respondent was aware of it, and whether it is applicable to this case.

He submitted that the provisions of the Montreal convention cannot be read in isolation; that they must be read in conjunction with the contract entered into by the passenger. He argued that the Montreal convention does not prohibit an airline from refusing to carry passengers who do not comply with the conditions of carriage. It does not seek to interfere with the contracts of parties. The argument of the Appellant is that it has a right to refuse to carry a passenger who does not meet with the conditions of carriage. The question therefore is whether this is a right which the airline possesses? Does the proper exercise of that right amount to a breach of a fundamental term of the contract of carriage? If the airline has a right under certain circumstances to refuse carriage, does the airline have protection under the contract of the parties and under the law? Does it mean that once a passenger possesses a travel ticket and a visa, such a passenger must automatically be carried no matter the circumstances? And if such a passenger is refused carriage the airline becomes liable for a breach of contract for which remedies under the Contract of Aviation were no longer available?

He submitted that it is not the intendment of the law as contained in the Montreal convention and the Civil Aviation Act to take away the rights and obligations of parties. He submitted that the law only seeks to protect passengers where there is an unjustifiable breach of the terms and conditions of carriage-where, for example, for no justifiable reason under the underlining contract, the airline refuses to carry a passenger.

Counsel submitted that Aviation contracts being sui generis, the contracts assume a life of their own. The argument therefore that because there was a refusal of carriage, the airline would of necessity, be liable without seeking to know whether that refusal was justifiable under the contract, is untenable.

RESOLUTION

It is necessary to determine first the issue of whether or not there was a breach of the contract between the Appellant and the Respondent before wading into the issue of imitation of liability. It is not in dispute that the Respondent on 7/5/07 bought the appellant’s airline ticket (electronic) for the sum of US $2,067 (Two thousand and sixty seven dollars) to enable her travel from Dallas Houston -Dubai- Lagos and back. The Respondent alleged that the said ticket exhibit “PM2” was duly confirmed and had on its face the inscription “17 Dec Ok”. When the respondent turned up at the airport to travel on 17/12/07, the appellant denied her boarding and made no alternative provision for her carriage. The Appellant claimed she was denied boarding because her ticket was not reconfirmed for the flight. The Appellant claimed it was not in breach of the contract. The Respondent’s claim is that she was refused carriage for no reason but the appellant, claims the refusal was due to failure to re-confirm her ticket. The Appellant claimed that having denied the re-confirmation of the ticket, the onus was on the Respondent to adduce evidence of the re-confirmation. He argued that her viva voce was insufficient to satisfy the onus and that the learned trial Judge had no basis for his belief that the ticket was duly reconfirmed. It is not in doubt that evaluation of evidence entails much more than the Judge saying “I believe” or “I didn’t believe a witness”. There must be on record the reasons why the court arrived at its conclusions for preferring one evidence to the other. See the judgment of this Court in CA/L/198/2012 Emirates Airline v. Uzoaku Kenechukwu Ngonadi delivered on 19 -12 – 2013.
The lower court here did not do any evaluation of the evidence just as in the above cited appeal. The court without giving reasons held thus:

“I do not believe that neither the Plaintiff nor her agent did not re-confirm the ticket issued her or in any way defaulted in sustaining the validity of the issued ticket. I believe PW1 Clement Dolor acting on behalf of the Plaintiff personally or through Simba Travels & Tours limited made such re-confirmation of the said ticket as indeed would be expected of an experienced Travel Agency staff such as himself.”

Although the learned trial Judge failed to give reasons for his belief, it is not a ground for concluding that his finding is wrong. There is need to examine the evidence led in order to determine if he could have reached a different conclusion. See Anyanwu v. Mbara (1962) 6 SCNJ 90.

PW1 Mr. Clement Jones Dolor in his written statement on oath duly adopted on 22/10/09 averred in paragraph (10)

“that as an employee of the Defendant I made the said booking/reservation for the Plaintiff in May 2007 for her travel in December 2007 en route Dallas-Houston-Dubai-Lagos, which booking reservation was confirmed ok several times, even three (3) days before the actual date scheduled for Plaintiff’s travel (17th December, 2007)”

I have carefully examined the cross-examination of the witness. Surprisingly, no questions were put to the witness on the above important averment. The law is that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. See Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Oforlete v. State (2000) 12 NWLR (pt. 681) 415 @ 436; Adesule v. Mayowa & Ors (2011) LPELR-3697 (CA)

Rather the cross-examination of DW1 the sole witness of the Appellant ran thus:

Question: Mr. Dolor stated that the ticket was confirmed several times.

DW1: When you say re-confirm you can re-confirm a hundred times. You must revalidate on the day of travel.

Question: PW2 reiterated that ticket was re-confirmed several times.

DW1: I was not at the Airport in Dallas when the Plaintiff attempted boarding the plane. Plaintiff was denied boarding because her ticket was not confirmed… the Emirates people in Dallas gave us that confirmation.

It is obvious that the Appellant is simply seeking a way out. They kept interchanging the words “confirm”, “re-confirm” and now “revalidate on the day of travel”. DW1 by his last answer confirmed that his evidence was mere hear-say. He was not at the airport in Dallas but the Emirate people in Dallas gave them the information that the Respondent’s ticket was not confirmed. He now has gone back to confirmation of ticket. This ticket was bought as far back as May 2007 and it was on that day duly confirmed “OK” as clearly indicated on the face of the ticket. The evidence of PW1 that the ticket was re-confirmed three days before the date of travel was not challenged in cross-examination. Even though the learned trial Judge did not evaluate the evidence led at the trial, he was right in his conclusion that the Respondent re-confirmed her ticket. He was also right in his conclusion that no valid reason was given by the Appellant for its failure to board the Respondent in the said flight. The Appellant by placing reliance on Paragraph 9.3.1 of their Conditions of Carriage had impliedly admitted that the ticket was duly confirmed. The paragraph provides:

9.3.2 If article 9.3.1 applies to you, we will pay to you any compensation due to you under applicable law and our denied boarding compensation policy”.

The Appellant was clearly in breach of the contract with the Respondent when it refused to board her in the aircraft on 17/12/07. The Respondent was right that the refusal to carry her in the said flight was a breach of a fundamental term of the contract of carriage, the appellant having failed to show a valid reason for denying the respondent boarding. The appellant adduced no justifiable reason for its refusal to board the respondent. What then is the liability of the Appellant for the failure? There is judicial authority for the view that airlines can incur liability for ‘delayed or denied boarding’. See Harka Air Services (Nig) Ltd v. Keazor (2011) 13 NWLR (Pt. 1264) 320.

Learned counsel for the Appellant in his brief stated that the contract of carriage between the Appellant and the Respondent is governed by the following:

-the terms and conditions of contract of the ticket;

-the conditions of carriage;

-applicable tariffs and regulation;

-the Warsaw convention or the Montreal convention (whichever is applicable); and/or local laws (such as the Civil Aviation Act 2006).

I agree. It is then important to look at some of these laws.

Section 48(1) of the Civil Aviation Act 2006 provides:

“The provisions contained in the convention for the unification of certain rules relating to International carriage by air signed at Montreal on 28th May 1999 set out in the Second Schedule 11 of this Act and as amended from time to time, shall from commencement of this Act have the force of law and apply to International carriage by air to and from Nigeria, in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage, and shall subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons”

The provisions of the Montreal Convention are in the Second Schedule of the Civil Aviation Act 2006. Article 29 of the Montreal Convention 1999 provides:

“In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring the suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”

Learned counsel for the Appellant had submitted that the trial court had no basis for holding that no limitation of liability applied to the contract between the parties. He had contended that even assuming (without admitting or conceding) that there was evidence that the Appellant wrongly refused the Respondent carriage on 17th December 2007, and therefore the said wrongful refusal amounted to a breach of contract of carriage, the learned trial Judge erred when he held that no limitation of liability applied to the contract. He submitted that to hold that the limitation of liability did not apply to the contract and then to proceed to award damages as claimed is to award damages at large. Counsel cited the provisions of Article 48(1) of the Civil Aviation Act 2006, the case of Cameron Airlines v. Jumai Abdul-Kareem 2003 11 NWLR (Pt 850) 1; Hassan v. Maiduguri Mgt. Committee (1991) 8 NWLR PT 212 pg 738 at 741; and Article 29 of the Montreal Convention. He submitted that notwithstanding the clear provisions of the statutes and the relevant case law, the trial court awarded to the Respondent damages in excess of the liability limits. He submitted that once the trial court agreed that the contract was an international contract of carriage by air and that it is governed by the Montreal Convention 1999 and the Civil aviation Act 2006 and underpinned by the Defendant (Emirates) conditions of carriage of passenger and baggage, the trial court was wrong not to have applied the provisions of both statutes and the Defendant’s conditions of carriage of passengers and baggage. The Appellant is right and I totally agree with him. The liability of the Appellant cannot be at large. It is circumscribed by the provisions of the Civil Aviation Act 2006, the Montreal convention 1999 and the Emirates Conditions of Carriage of Passengers and Baggage. It is only where negligence and wilful misconduct has been established that liability could be at large. See Cameroon Airlines v. Otutuizu (2011) 8 WRN 1 or (2011) 4 NWLR (Pt. 1238) 512 As far as the inter-relationship of the various laws is concerned, the Montreal Convention has the upper hand. Article 26 of the Montreal convention states that

“any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this convention shall be null and void……”

In view of the provisions of these various laws, the learned trial Judge was wrong in his conclusion that no limitation of liability applied to the contract. Issue 1 is thus resolved in favour of the Appellant while issues 5 and 6 are resolved in favour of the Respondent.

ISSUES 2, 3 & 4

2. Whether the learned trial Judge was right when he awarded the sum of N2.5M in general damages to the Respondent after awarding “A ticket refund in full without any deduction or charge”

3. Whether the learned trial Judge was right when he awarded the Respondent a full ticket refund without deductions when it was not claimed by the Respondent.

4 Whether the learned trial Judge was right when he awarded the sum of N250, 000 in legal fees when the Respondent claimed N1, 000,000 but led no evidence in proof.

APPELLANT’S ARGUMENTS:

Learned counsel submitted that the learned trial judge erred in law when he awarded the Respondent the sum of N2.5M in general damages after awarding “A ticket refund in full without any deduction or charge”. He submitted that general damages are not awardable in breach of contract cases when special damages have been awarded without the prior agreement of parties. Counsel submitted that the agreement of the parties as contained in the Emirates Conditions of carriage of passengers and baggage provides only for a ticket refund and the provisions on the Montreal convention expressly prohibits non compensatory or punitive damages. Counsel argued relying on G. Chitex Ind. Ltd. O.B.I. (Nig) Ltd. (2005) NWLR PT 945 P392 at 395 that the award of both special and general damages amounts to double compensation. See also the cases of CBN V. AHMED (2004) 15 NWLR PT 897 PG 591 AT 596 and JOSEPH V. ABUBAKAR (2002) 5 NWLR PT 759.

On issue 3 counsel submitted that the learned trial judge went beyond the claim of the Respondent to award her damages which was not claimed. He submitted that Relief ii of the respondent’s claim states as follows:

“An order of this court that the Defendant pays the sum of USD 3,200 (Three Thousand, Two Hundred US Dollars) being special damages or the cost of the alternative arrangement the Plaintiff made in buying another airline ticket from Dallas Fort Worth-London-Gatwick-Lagos.”

However the learned trial judge in his Judgment ordered as follows:

“I find that the Defendant’s refusal to carry the Plaintiff from Dallas on the 17th of December, 2007 amounts to a breach of its contract of carriage with the Plaintiff. No limitation of liability applies here. The ticket refund to the Plaintiff should be in full without any deduction or charge”

Counsel submitted that apart from the fact that the order is vague, unclear and uncertain as to which of the tickets it is directed at, the Respondent never asked for a ticket refund without any deduction or charge. The court also failed to take into cognizance the fact that a ticket refund had earlier on been applied for by the PW1 Clement Dollor, (the Respondent’s agent) on behalf of the Respondent and for which a refund had been made and which is still in the possession of the said agent at the time of the judgment. He submitted that to order that a ticket refund be made without being specific as to which of the tickets in issue is to be refunded and without considering the fact of an earlier refund is to create uncertainty in the judgment and a situation of impossibility of compliance. Furthermore, to order a full ticket refund without any deduction or charge is to award to the Respondent a relief or claim that was not asked for, Ndika v. Chiejina (2003) 7 N.W.L.R part 802, page 451 at 458; NDIC vs. S.B.N. Plc (2003) 7 N.W.L.R. part 801 page 311 at 330; Summit Fin. Co. Ltd v. Iron Baba & Sons Ltd. (2003) 17 N.W.L.R. (Pt. 848) 89.

Counsel finally submitted as follows;

i. That the Respondent only claimed for a refund of the cost of flight ticket bought in the United States of America which cost $3,200 “spent on a ticket on an alternative airline”

ii. The Appellant made a refund of the cost of the original ticket with deductions to the Respondent through her agent.

iii. The Respondent is only entitled to a refund of the cost of the ticket purchased from the Appellant and no more.

iv. The Respondent did not claim for a refund of the cost of the Appellant’s ticket.

v. The trial court gave judgment for a refund of the ticket (the alternate ticket) without deductions.

vi. The trial court cannot give to the Respondent what she is not entitled to receive contractually.

Counsel submitted that where parties have entered into a contract, such a contract is strictly governed by its terms and conditions and a court of law must enforce the rights and obligations of parties in accordance with the terms of the contract. Furthermore, a court is not permitted to go outside the contract or make a new contract for the parties. Omega Bank (Nig) Plc V. OBC Ltd. (2005) 8 NWLR PT 928 P457 at 555; and Arjay Ltd V. AMS Ltd (2003) 7 NWLR PT 820 PG 577 at 583 ratio 1; Larmie V. DPMS Ltd. 2005 18 NWLR PT 958 pg 438 at 422 ratio 3; Omega Bank (Nig) Plc V. OBC Ltd (2005) 8 NWLR, Part 928 Page 547 at 555; ARJAY LTD. V. A.M.S LTD (2003) 7 NWLR Pt 820 577 at 583.

On issue no 4, learned counsel submitted that the lower court erred when it awarded the sum of N250,000 to the Respondent as legal cost when the respondent asked for N1,000,000 and did not lead evidence on its entitlement to either the sum of N250,000 or the sum of N1,000,000 as claimed. He submitted that there is no shred of evidence adduced by the Respondent in support of this head of claim which is a claim for special damages. He submitted that special damages must not only be pleaded, it must be particularized and strictly proved. Counsel relied on Hassan v. Maiduguri Mgt. Committee (1991) 8 N.W.L.R. part 212 page 738 at 741

Counsel further submitted that the cost of legal fees is not awardable under Nigerian law, and that cost of legal fees is in the nature of special damages and must be proved strictly. Counsel submitted that the Plaintiff led no evidence of the cost of N250, 000 or N1, 000,000 by the tendering of any document showing such payment. There was consequently no basis for awarding the head of claim when it was not proved strictly. Guinness (Nig) Plc. v. Nwoke (2000) 15 NWLR Pt 689 p 140. Counsel submitted that for the Respondent to be entitled to be awarded any relief/damages outside of the liability limits and for the court to be able to grant such reliefs, it must be shown that the conduct of the Appellant in refusing the Respondent boarding on December 17, 2007 was done with the intent to cause damage or recklessly and with knowledge that damage would probably result. The respondent neither pleaded nor led evidence in proof of such an allegation. Article 22 (5) of the Convention provides that the limitation on liability for damages caused by delay or for loss, destruction, damage or delay of baggage is not applicable “if it is proven” that the damage sustained resulted from an act or omission of the carrier or its agents “done with intent to cause damage or recklessly and with knowledge that the damage would probably result”. CAMEROON AIRLINES v. JUMAI ABDUL-KAREEM (2003) 11 NWLR (Pt.830) 1 Counsel submitted that the presumption of negligence is not applicable in matters of this nature.

RESPONDENT’S ARGUMENTS:

The Respondent’s reply to the above appellant’s issues is covered by her issues 2 & 4 viz:

2. Whether the respondent is entitled to damages as awarded by the lower court.

4. Whether an appeal against the award of “legal costs” without the leave of court is competent

Learned counsel on 2 above submitted that the respondent, as a result of the refusal of the appellant to carry her, was forced to purchase another ticket at a higher rate from another airline. He submitted that the liabilities arising from the breach are the refund of the money paid for the appellant’s ticket and the extra expense the respondent was put into by purchasing an American Airlines ticket for the sum of US$ 3, 200. Counsel argued that the appellant did not deny the receipt and retention of the American Airlines ticket and evidence was given by PW1 and PW2 to that effect. The respondent having pleaded and proved that she paid extra money to transport herself to Nigeria incurred a loss which the appellant should be made to defray. Consequently the respondent is entitled to the refund of the US$ 3200 paid for the American Airlines ticket and the US$ 2,067 paid for the appellant’s Airlines ticket having failed to carry the respondent as agreed. On the award of general and special damages counsel submitted that the guiding principle is whether that head of damage as claimed was pleaded and proved. He submitted that purchase of another ticket was pleaded and proved, and as such granting special damages for what was actually lost via purchase of another ticket plus general damages is not legally wrong. Counsel relied on NNB Plc v. Denclag Ltd (2005) 4 NWLR (Pt 916) 549 @ 604; British Airways V. Atoyebi (2010) 14 NWLR (pt 1214) 561; NBC Plc V. Oresanya (2009) 3 CLRN 184 @ 195-196; De Willy Laundry Service Ltd V. Aremu (2008) 10 CLRN 75 @ 84. Counsel further submitted relying on Cameroon Airlines v. Otutuizu (2005) 6 CLRN 110 @ 123 that where a carrier fails to carry at all or has carried to the wrong place, the carrier is liable in damages to the passenger.

On issue iv, whether an appeal against the award of “legal costs” without the leave of court is competent learned counsel submitted that the respondent herein only claimed cost of the action and that was what the trial court awarded. He argued that the trial court awarded legal costs and did not award legal or solicitors fees as contended by the appellant. Counsel submitted that in Guinness (Nig) Plc V. Nwoke (Supra) the claim of the cross appellant was N500, 000 solicitors fees which was rejected by the trial court and the Court of Appeal. The appellant’s submission therefore relying on Guinness (Nig) Plc v. Nwoke is inapposite as the claim in the Guinness case and the instant case is completely different. Counsel argued that “Legal costs” is not the same as “legal or solicitors fees”. The award of the former is discretionary and within the powers of a court to award a successful litigant whilst the award of the latter is based on the claim, pleading and strict proof.

Learned counsel submitted relying on section 241 (2) (c) of the Constitution of the Federal Republic of Nigeria 1999 that a ground of appeal complaining against the award of costs without the leave of the lower court is incompetent. Counsel submitted that the ground of appeal is misdirected and incompetent.

APPELLANT’S REPLY:

Counsel submitted that the respondent never lost anything other than to purchase another ticket for the journey. The respondent cannot therefore claim for both tickets as entitlement or as special and general damages.

RESOLUTION:

The reliefs claimed by the Respondent as set out in his amended statement of claim are as follows:

i. A Declaration that the refusal of the Defendant to carry the Plaintiff from Dallas-Houston-Dubai-Lagos on the international flight amounts to a breach of contract of carriage by air.

iii. An order for the payment of N10, 000,000.00 (Ten Million Naira) being general damages for the breach of contract of carriage.

iv. An order for the payment of the sum of N1, 000,000.00 being the cost of instituting this action.

The learned trial Judge in his judgment at page 259-260 said:

The ticket refund to the Plaintiff should be in full without any deductions or charge.

I further grant N2.5 million damages and N250, 000 in legal costs.”

Article 29 of the Montreal Convention 1999 provides:

By the above provision, the Respondent is entitled to compensatory damages only. No punitive, exemplary or any other non-compensatory damages shall be recoverable.

Learned counsel for the Respondent had submitted on the award of general and special damages relying on numerous authorities that the guiding principle is whether that head of damage as claimed was pleaded and proved. He submitted that purchase of another ticket was pleaded and proved, and as such granting special damages for what was actually lost via purchase of another ticket plus general damages is not legally wrong.

I agree with learned counsel on the claim for USD3, 200 (Three Thousand, Two Hundred US Dollars) being special damages or the cost of the alternative arrangement the Plaintiff made in buying another airline ticket from Dallas FT worth-London-Gatwick-Lagos. That claim was specifically pleaded and evidence duly led. The Appellant did not dispute the figure although it denied liability. My view is that the Respondent is entitled to this claim as special damage incurred as a result of the breach of the contract of carriage. The Respondent is however not entitled to claim as well a refund of the Emirate ticket for the sum of US $2,067 (Two thousand and sixty seven dollars). Part of this money had been refunded. That explains why there was no claim for it or even the deductions. Why then did the learned trial Judge order that “the ticket refund to the Plaintiff should be in full without any deductions or charge?” It is trite law that a court has no power to award to a claimant that which was not claimed. Badmus V. Abegunde (1999) 11 NWLR (Pt. 627) 493, Onu JSC observed:
“It is trite law that the court is without power to award to a claimant that which he did not claim. This principle of law has time and again, been stated and re-stated by this court that it seems to me that there is no longer any need to cite authorities in support of it. We take the view that the proposition of the law is not only good law but good sense. A court of law may award less, and not more than what the parties have claimed. A fortiori, the court should never award that which was not claimed or pleaded by either party. It should always be borne in mind that a court of law is not a charitable institution, its duty in civil cases is to render unto every one according to his proven claim.”

There is no doubt and I do agree with learned counsel for the Appellant that the learned trial Judge’s order that “the ticket refund to the Plaintiff should be in full without any deductions or charge” is vague as it did not specify which refund is being referred to – the Emirate Airlines ticket or the American Airlines ticket. For this reason and the more important reason that his Lordship granted a relief not prayed for, the order cannot stand. My view is that the Respondent is entitled to a full refund of the Sum paid for the American Airlines ticket, that is the sum of USD3, 200 (Three Thousand, Two Hundred US Dollars) as claimed by the Respondent in Relief ii. The provision of the Montreal Convention is that she be paid compensatory damages. The basic object of damages for breach of contract is to put the plaintiff, so far as money can do it in the same situation as if the contract had been performed. That is what is meant by compensatory damages. If the contract of carriage had been performed as agreed, the Respondent would not have incurred the expense of USD 3,200 paid for the American Airlines ticket. It is precisely to avoid that higher cost of ticket that the Respondent took the trouble of purchasing her ticket as far back as May 2007 when she was billed to travel in December.

Since however the Appellant had refunded the Emirate Airlines ticket less certain deductions to Mr. Clement Dolor who applied for the refund on behalf of Simba Travels and Tours, the appellant is liable to pay back to the Respondent the $USD 3,200 (three thousand two hundred US dollars) less the amount already paid to Mr. Dolor. The contention of the Respondent that she did not authorise Mr Dolor to collect the money on her behalf is without merit as he applied for the refund and actually surrendered the tickets to the Appellant and the tickets were bought through Simba Travels and Tours.

On the award of N2.5 million damages, the question is whether it constitutes double compensation as claimed by the Appellant. This case as I said earlier is on all fours with the judgment of this Court in CA/198/2012 Emirate Airline v. Ngonadi delivered on 19 -12 -13. I find it necessary to again quote from the judgment the view of this court as set out in the lead judgment of Augie JCA:
“General damages” are such, as the law will presume to be direct, natural or probable consequence of the act complained of, while ‘special damages’ are such as the law will not infer from the nature of the act; the main difference is that in the former case, the court can make an award when it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man. In the latter case, all losses claimed on every item must have crystallized in terms and value before trial – see Shodipo & Co Ltd v. Daily Times (1972) All NLR 842……… The Respondent herein claimed the full sum of her ticket but she was awarded half of it “to cover the return leg of a failed contract”, which is as it should be. She also claimed N10m and was awarded the full sum as general damages for breach of the terms of the said contract of carriage, which is unjustifiable in law, not only because it amounted to double compensation, which the law frowns on- See Tsokwa Motors (Nig.) Ltd v. UBA Plc. (2008) 2 NWLR (Pt. 1071) 347 SC, where the Supreme Court per Aderemi, JSC, said in no uncertain terms that –
“It has been repeatedly held by this Court that where a victim of an injury has been fully compensated under one head of damages, it is improper to award him damages in respect of the same injury under another head -”
Further, in the Supreme Court case of Okongwu V. NNPC (1989) 4 NWLR (Pt.115) 296 @ 315 the Court per Karibi-Whyte JSC observed:
“In NPM Board v. Adewunmi (supra) the Supreme Court referred with approval to its earlier decision in Swiss-Nigerian Wood Industries Ltd v. Danilo Bogo SC. 14/70 delivered on 3rd March, 1970 where it was stated,
“The terms “general and special” damages are normally inapt in the categorization of damages for the purposes of awards in cases of breach of contract. We have had occasion to point out before….. and we make the point that apart from damages naturally resulting from the breach no other form of general damages can be contemplated”

In the above case at page 316, Karibi-Whyte JSC reiterated the principle that assessment of damages for breach of contract “is restitutio in integrum – that is, so far as the damages are not too remote, the plaintiff shall be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred. The principle is not restitutio in opulentiam- giving him a windfall.”

Learned counsel for the Respondent had referred to several authorities where the court of appeal held that there was nothing wrong with the award of special and general damages in a case of breach of contract. I have read some of the authorities, in particular; NNB Plc v. Denclag Ltd (Supra) In British Airways V. Atoyebi (Supra) the award of special damages in addition to N3 million general damages by the Federal High Court was affirmed by the Court of Appeal. The Supreme Court has however declared that such award smacks of double compensation. By the principle of stare decisis, the Supreme Court view must prevail.

It is obvious then that after awarding the Respondent the refund of the amount used in purchasing a ticket to enable her return to Nigeria as planned, the award of additional N2.5m damages is double compensation. More importantly, it is clearly contrary to the provision in the Montreal Convention which had placed a limit to what is claimable except where negligence or wilful misconduct is established as in Cameroon Airlines v. Otutuizu (2011) 8 WRN 1 or (2011) 4 NWLR (Pt. 1238) 512.
On the award of the sum of N250, 000 in legal fees when the Respondent claimed N1, 000,000, learned counsel for the Respondent tried to draw a distinction between legal costs awarded by the trial Judge and legal or solicitor’s fees. He called in aid Order 25(2) (1) of the Federal High Court (Civil Procedure) Rules which provides for indemnification of the party in the right by costs. He claimed the award of N250, 000 was just costs, a matter within the discretion of the trial court and not legal or solicitor’s fees. But the Respondent’s claim was for the payment of the sum of N1, 000,000.00 being the cost of instituting this action. The learned trial Judge had awarded N2.5 million damages and N250, 000 in legal costs without giving any reasons for the award. In the circumstances, it is right to assume that the N250, 000 legal costs was in lieu of the claim for one million naira cost of instituting the action. I agree with the view of learned counsel for the appellant in his reply brief that “cost of instituting the action” and “legal cost” mean the same thing and refer to cost incurred in instituting the action. The issue of awarding N250, 000 instead of the N1 million claimed is of no moment because a court may award less than what is claimed but not more. The important point however is that the claim is for special damages and the law requires that there must be strict proof of same. In Odulaja v. Haddad (1973) 11 SC 357 or (1973) 1 ALL NLR 191, the Supreme Court held that:
“The claim under special damages requires strict proof. Strict proof however does not mean unusual proof or proof beyond reasonable doubt. What is required is that the Respondent claiming should establish his entitlement to that category of damages by such credible evidence of such character as would suggest that he indeed is entitled to an award under that head.”
See also Orient Bank (Nig.) Plc v. Bilante Int. Ltd (1997) 8 NWLR (Pt. 515) 37, S.P.D.C. (Nig.) Ltd v. Tiebo VII & Ors (2005) 9 NWLR (Pt. 931) 439 where Oguntade JSC observed:
“In some cases, it may be necessary to show documentary proof of loss sustained while in others it may be unnecessary. The important thing is that the evidence proffered must be qualitative and credible and such as lends itself to quantification. Each case depends on its own facts and circumstances. There are cases where it will be impossible to pass the test required unless documentary proof is produced to show the loss sustained. In others, oral evidence which is credible may be sufficient. The character of the evidence called must measure up to the circumstances of the occasion or the expectation of a reasonable man.”

I have perused carefully the written depositions of the two witnesses called by the Respondent at pages 98 – 109 of the Record of appeal. There was no averment of any kind relating to particulars of the legal costs. No evidence of any kind was led in proof of legal costs of N1, 000,000 or N250, 000, apart from the bare claim in the pleadings. At paragraph 35 (4) of the witness deposition of Charles Mekwunye, he prayed the court to enter judgment against the Defendant for an order for the payment of the sum of N1, 000,000 (one million naira) being the cost of instituting the action. That was all. No attempt was made to give any particulars. The learned trial Judge consequently erred in granting the sum of N250, 000 legal costs. Having arrived at the conclusion that the award is for legal cost and not cost simpliciter, leave of court was unnecessary.

In the final result, this appeal succeeds and is allowed in part. The judgment of the lower court is hereby set aside. In its place relief 28 (a) of the amended statement of claim at page 69 of the record of appeal is granted as prayed. Relief 28 (b) is also granted as prayed subject to the deduction from the USD3,200 the sum of $1,774 already refunded to Mr. Dolor for the Respondent. For the avoidance of doubt, the award of N2.5 million naira damages and N250, 000 legal costs is set aside. The reliefs granted are as follows:

i. A Declaration that the refusal of the Defendant to carry the plaintiff from Dallas-Houston-Dubai-Lagos on the international flight amounts to a breach of contract of carriage by air.

ii. An order of this court that the Defendant pays the sum of USD3, 200 (Three Thousand, Two Hundred US Dollars) being special damages or the cost of the alternative arrangement the plaintiff made in buying another airline ticket from Dallas F worth-London-Gatwick-Lagos subject to the deduction of the sum of $1, 774 already refunded to Mr. Dolor for the Respondent

There shall be interest on the sum outstanding at the rate of 10% from the date of judgment until final liquidation of the judgment debt. I make no order as to costs.

AMINA A. AUGIE, J.C.A.: I have read the lead Judgment delivered by my learned brother, Iyizoba, JCA, and I agree with his reasoning and conclusion. Sure, the Appellant is liable but the liability falls within the ambit of the limitation clause in its Conditions of Carriage as contained in the Montreal Convention, which stipulates that in any action for damages, “punitive, exemplary and any other non-compensatory damages SHALL not be recoverable”.
A compensatory damage is a sum of money awarded by a Court to indemnify a person for the particular loss, detriment or injury suffered as a result of the unlawful conduct of another. They differ from “punitive damages”, which punish a Defendant for his conduct as a deterrent to the future commission of such acts. The object of a treaty like the Montreal convention is to provide a uniform international code in the areas that it covers – see Cameroon Airlines v. Otutuizu (2011) 4 NWLR (pt. 1238) 512 SC and Harka Air Services (Nig.) Ltd. v. Keazor (2011) 13 NWLR (pt. 1264) 320 SC, where the Supreme Court per Adekeye, JSC, explained that –
“- – An air passenger is not at liberty to choose as between the provisions of the Convention and the domestic/common law for claims for damages against the carrier. Such claims have to be asserted only in accordance with and subject to the terms and conditions of the convention and cannot be pursued under any other law”.

In this case, the Respondent’s claims can only be asserted in accordance with the terms of the said Convention, and cannot be pursued under any other law. The lower court erred when it awarded her damages at large, and it is for this and the other reasons in the lead Judgment that I also allow the appeal in part. I abide by the consequential orders in the lead Judgment including no costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: My learned brother Chinwe Eugenia Iyizoba, J. C. A., availed me the privilege of perusing in draft the detailed lead judgment prepared by his Lordship in the appeal with which I agree and adopt as my judgment without ado.

Appearances

J. I. OGUNU ESQ.For Appellant

AND

DR. CHARLES MEKWUNYE with EKENE NWONU ESQ.For Respondent