EMIRATES AIRLINE v. UZOAKU KENECHUKWU NGONADI
(2013)LCN/6672(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of December, 2013
CA/L/198/2012
RATIO
WHETHER A COURT MAY AWARD A RELIEF OUTSIDE WHAT IS CLAIMED ON THE PLEADINGS
It is settled law that “a Court may award less and not more than what the parties have claimed” – see Abenga v. Benue State Judicial Service Commission (2005) All FWLR (pt. 321) 1327, African Petroleum v. Aborisade & Anor (2013) LPELR-20362(CA), where Mbaba, JCA, held that –
“It is the law that a Court is barred from making an award or granting a relief, outside what was claimed in the pleadings and proved by evidence at trial. This is because, being regulated by laws and principles relating to pleadings, and due to the need to be disciplined, predictable and add on evidence before it, the Court cannot afford to stray to play the comic role of a “father Christmas” who doles out gifts, unsolicited, to whoever he delights to please”. Per AMINA ADAMU AUGIE, J.C.A.
STRICT PROOF OF SPECIAL DAMAGES
The Respondent urged us to hold that she is entitled to costs as claimed but that is not likely because, as the Appellant rightly submitted, her claim for “cost of this action” is a claim for special damages, and the position of the law is that special damages must be specifically claimed and proved strictly. Strict proof does not imply unusual proof, rather it is basically “proof that would bend or lend itself to quantification” – see Skye Bank v. Kudus (2011) LPELR-CA/1/191/08, Momodu v. University of Benin (1997) 7 NWLR (Pt. 512) 325, and Orient Bank (Nig.) Plc. v. Bilante Int. Ltd. (1997) 8 NWLR (pt. 575) 37, where per Tobi, JCA (as he then was) explained the requirements as follows –
“The degree of “strict proof” required in relation to special damages depends on the character of the acts which produce the damage and the circumstances under which the acts were done Strict proof required in proof of special damages means no more than that the evidence must show the some particularity as in necessary for its pleading. It should, therefore, normally consist of evidence of particular loss which are exactly known or accurately measured before trial. Strict proof does not mean unusual proof, but simply implies that a Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the Defendant access to the facts which make such calculation possible. Strict proof in the con of special damages can mean no more than such proof as would readily lend itself to quantification or assessment .Special damages can only be awarded if a Court trying the case gives adequate consideration to the evidence in support and accepts it as having probative value so as to preponderate in favour of the person claiming”. See Oshinjinrin & Ors v. Elias & Ors. (1970) 1 ANLR 158, wherein it was held –
“What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates”. Per AMINA ADAMU AUGIE, J.C.A.
ESSENCE OF A GROUND OF APPEAL
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)490 sc, where Adio, JSC, observed that –
“The law is that the particulars and nature of the error or misdirection alleged in relation to the ground of appeal should be the specific reasoning, findings or observations in the judgment or ruling in question relating to the error or misdirection complained of. They should be the enumeration of the error or misdirection in the Judgment or Ruling.” Per AMINA ADAMU AUGIE, 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
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria
Between
EMIRATES AIRLINEAppellant(s)
AND
UZOAKU KENECHUKWU NGONADIRespondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Respondent, a student at a Canadian University, purchased a return ticket to Canada from the Appellant through a registered travel agency in Nigeria-Bits Travel and Tours Ltd.,in the sum of N200,425.00. She was issued a ticket with Reference No. EDTMDF on the 27th May 2008, and had no problems boarding the Appellant’s aircraft on the 29th of May, 2008 to Canada via Dubai. However, her return trip on the 22nd of December, 2008 was a different story.
She arrived at the Pearson Airport in Canada and was duly checked in. After airport security screening and passport control protocols, she proceeded to board the aircraft with other passengers, but it was at the point of entering the aircraft that an official of the Appellant denied her entry on the ground that she did not have a proper paper ticket to enable her return back to Lagos.
She explained to the official that the ticket was purchased in Nigeria and was the same ticket she had used for the first trip from Lagos-Dubai-Canada, but he insisted she must be escorted out of the airport by security officials. She had to take a taxi to and pay for her accommodation in Ontario, Canada.
She reported to the Appellant at its Canadian Office, and when it failed to take any steps, her Lawyers – Messrs. Ricky Tarfa & Co., wrote a letter dated 6/1/2009 to the Appellant at its Nigeria Office; the last four paragraphs reads –
“We have carefully chronicled the above facts to give you a complete picture of the circumstances in which our client was denied to travel by officials of your airline despite having a valid and subsisting ticket and thereby exposing her and her family to considerable expense, trauma and hardship. It is important to note that our client being 18 years of age was put in a very difficult position as a result of the acts of your officials. It is consequent upon the above that we have our client’s instruction to demand for the immediate payment of the sum of N5,000,000 only by you being the value of her ticket, taxi fares, payment for an apartment as well as the risk, emotional, physical and psychological shock suffered by both our client as well as her family and occasioned by the actions of your officials. Should you fail to respond to this demand within 14 days of this letter, we have our client’s further instruction to issue a writ against you and seek further legal redress including damages. We believe you will take steps to redress this demand accordingly”.
In a reply dated 10/2/2009, it’s Finance and Admin Manager wrote that the matter had been forwarded to the “Customer Affairs Dept. in Dubai for their immediate investigation. They will get back to you”. Not hearing from them, her lawyers wrote a reminder dated 20/4/2009, wherein they indicated that –
“Since we cannot wait indefinitely for your clients, we are constrained to by this letter to give to your clients 7 days’ notice of our intention to seek legal redress against your client and also claim for damages on behalf of our client”.
The Appellant’s Lawyers – Messrs. Giwa Osagie & Co., replied the Respondent’s Lawyers – Messrs. Ricky Tarfa & Co.; part of the letter dated 6/7/2009, reads –
“Our client has informed us that Miss Uzoaku Ngonadi [the Respondent] did not have her paper ticket with her at the point of boarding the aircraft . The Emirates agent at the check in counter mistakenly checked [her] in without her paper ticket, and issued her two boarding passes. One of the boarding passes was for the Toronto-Dubai leg of the flight while the other was for the Dubai-Lagos leg. At the boarding gate, a member of Emirates staff noticed that [her] boarding pass did not state her ticket number. The staff then asked [her] for her paper ticket, which she could not produce. Emirates staff at the airport offered to help [her] call her hall of residence in the event that she forgot the ticket there; she declined to have the call made. Being sympathetic to her plight, the staff asked her to buy another ticket to enable her board the flight and she could sort the issue of the missing ticket on her arrival in Lagos. [She] insisted that she would not buy another ticket. After delaying the flight for nearly 15 minutes on account of one passenger, Emirates had no other option than to offload [her] luggage and allow the plane takeoff without her”.
The Appellant’s Lawyers concluded the said letter of 6/7/2009, as follows –
“You may be aware that it is standard practice in the airline industry to refuse carriage to anyone who cannot produce a valid ticket for the flight. In the light of the above, it is our client’s position that it is not liable for the inconveniences suffered by Miss Uzoaku for its refusal to carry her. However, this does not prelude your client from applying for a voluntary refund of the cost of the unused part of her ticket upon presenting the requisite proof of purchase. See Articles 3.1.1, 3.1.2, 4.2.5. and 10.2 of the Emirates Conditions of Carriage”.
Convinced that it had – “breached its responsibilities to her as covered by the terms of the ticket with Reference No. EDTMDF”, the Respondent filed a Suit against the Appellant at the Federal High Court, Lagos, wherein she claimed –
(i) The sum of N200,245.00 for breach of the terms of contract of carriage of passenger by air as contained in ticket with reference EDTMDT being the total sum the Plaintiff used to purchased the ticket with reference EDTMDT from the Defendant.
(ii) General damages for breach of the terms of contract of carriage of passenger by air as contained in ticket with reference EDTMDT in the sum of N10,000,000 only.
(iii) Interest on the above stated sums at the rate of 21% per annum from 23/12/2008 till Judgment is given and thereafter at the rate of 10% per annum till final liquidation.
(iv) Cost of this action assessed at N10,000,000.00
(v) Other reliefs.
Pleadings were duly filed; the Respondent as the plaintiff at the lower court filed a 39-paragraph statement of Claim while the Appellant as the Defendant filed 26-paragraph statement of Defence, wherein it absolutely denied liability for the Respondent’s claims, and further averred in its paragraphs 23 to 26 –
23. That this contract of carriage is governed by Emirates Conditions of Carriage for Passenger and baggage, 2006 and the Montreal Convention 1999 as domesticated by the Civil Aviation Act 2006.
24. That Articles 3 of the said Conditions of Carriage provides as follows –
3.1.1. We will provide carriage only to persons who possess a valid ticket (which includes the Flight Coupon for the flight, unused Flight Coupons for subsequent flights recorded in the Tickets, and the Passenger Coupon), provided that, for each passenger, such person is named as the Passenger in the Ticket and he or she produces a valid passport which, in the case of an Electronic Ticket, must bear a serial number that matches the number specified in the e-ticket/Itinerary.
3.1.2. In the case of an Electronic Ticket, you are required to bring your e-Ticket Receipt/Itinerary or Passenger Receipt with you to the airport as it may be necessary for you to present it to us and to airport immigration and security personnel.
25. That the said Contract of carriage has made adequate provisions for the refund in the case of denied boarding. In Articles 9, it provides as follows:
Denied Boarding
9.3.1. 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 later 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. This Article 9.3.1. will not apply if we refuse to carry you for reasons permitted by these Conditions of Carriage (see for example Articles 6.4., 7, 8.6.1., 11.4.2., 11.4.3., 13.1.6.)
26. The Defendant denies that it was in breach of any contract of carriage and avers that it is not the cause of any embarrassment caused the plaintiff.
WHEREOF … the Defendant states that the Plaintiff is not entitled to her claims against the Defendant, same being speculative, frivolous and unsustainable under the law and that the matter be dismissed with substantial costs.
The Respondent filed a Reply to the Statement of Defence, where she averred –
“In response to paragraph 24 of the Statement of Defence, the Plaintiff states that she presented both the receipt bearing her name as well as her Nigerian International passport as well as the ticket to the Defendant’s staff in Canada”.
At the trial itself, the Respondent called two witnesses and tendered 8 Exhibits, while the Appellant called 1 witness tendered only 1 Exhibit. Thereafter, the parties filed their respective Final Written Addresses, and in his Judgment delivered on the 7th of February 2012, the learned trial Judge, Archibong, J., set out the evidence before the Court and found “as facts” the following –
“The (Respondent) did purchase a ticket for travels on the Defendant airline from a travel agent BIT TRAVELS & TOURS LIMITED duly authorized in that regard for a round journey from Lagos to Canada and back through Dubai, with the itinerary detailed on the print out – Exhibit B” The (Respondent) utilized the paper ticket with which she was issued by the said travel agent to embark on her outward journey on the (Appellant)”.
“The (Respondent) was duly processed for travel by an Agent of the (Appellant) Airline who satisfied with her travel documents including her paper ticket issued the (Respondent) with her boarding passes and feeding card coupon to cover her flight back to Nigeria and amenities in Dubai en-route”.
“The (Respondent) was halted at the Boarding Gate on that 22nd December, 2008 in Canada by a Staff of the (Appellant) Airline, and prevented from boarding her contracted flight back to Lagos, Nigeria”.
“The (Respondent) at all times interacted directly with the Airline or with duly appointed/authorized agent and/or staff of the (Appellant) Airline”.
He further held and concluded as follows (see pages 209 – 211 of the Record) –
“It is also my finding that the (Appellant) Airline had a particular duty of care to facilitate the return leg on contract of carriage for a Plaintiff who is a foreign national at the Port of scheduled departure upon representation of papers given by duly constituted Authorities with any requirement for certificate or authentication the Defendant Airlines responsibilities to perform. I also held (sic) that any passions to the contrary in any contract of carriage to be an abdication of responsibility and a duty of care. More pertinently any such negating provision would be violation of Section 34 of the 1999 Constitution. No citizen of this Country has the capacity to agree to his or her being degraded as a voluntary act endangering the rights of others who would not subject themselves to such diminution by the same terms in a Contract of Carriage. I find as fact the plaintiff was deeply embarrassed and traumatized by the events of 22nd December, 2008 suffered at the hands of the (Appellant) Airline’s Staff; and the Plaintiff did incur unexpected and inadvertent emergency expenses related to be her need to secure accommodation in Canada in harrowing circumstances. Consequently, I make the following awards –
a. N100,212.60k to cover the return leg of a failed contract of carriage.
b.The Naira equivalent of CD $1,670 for expenses incurred as a result of the Plaintiff being prevented from boarding her flight back to her native Country.
c.N10,000,000 in general damages.
d.The legal costs of this action set at N2,000.000
e.Interest at 21% per annum to run on all the amounts from the date of Judgment till date of final liquidation”.
Aggrieved, the Appellant has appeared to this court with a Notice of Appeal containing 8 Grounds of Appeal. I have gone through the Grounds of Appeal, and even if the Respondent did not object, I will, certainly, not turn a blind eye to the anomalies in Grounds 1 to 5 of the Grounds of Appeal, which complain
GROUND ONE:
The learned trial Judge erred in law when he failed to apply the limitation of liability as contained in the Appellant’s Terms and conditions of carriage of Passengers and baggage 2006 and the Monreal Convention 1999 as domesticated by the Civil Aviation Act, 2006.
PARTICULARS OF ERROR
i. It is not in contention that the contract between the parties was an International Contract of Carriage by air and governed by the Montreal Convention as domesticated by the Civil Aviation Act, 2006. The trial court erred by going outside the provisions of the Monreal Convention with regards to limitation of liability.
ii. Aviation contracts are sui generis contracts strictly governed by the provisions of the Monreal Convention as domesticated by the Civil Aviation Act 2006.
iii. The Respondent neither showed that the Appellant’s conduct was reckless nor done with the knowledge that damage would probably result to enable the trial court to award damages outside the liability limits.
In the decided case of Cameron Airlines v. Jumai Abdul-Kareem 2003 II NWLR (pt. 85) 1, the Court of Appeal per Chukwuma Eneh, J.C.A. held as follows:-
“For damages awarded against the carrier to be at large in accordance with the provisions of Articles 25 of the convention as amended at the Hague, it is not sufficient for act or omission that is relied on to have done reckless; it must also be shown to have been done with knowledge that damages would probably result.”
iv. Articles 29 of the Monreal Convention provides as follows:-
“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.”
v. Notwithstanding this clear provision of statute and authorities the trial Court awarded to the Respondent damages in excess on the liability limits.
GROUNDS TWO
The learned trial judge erred in law when he awarded the sun of N10 million in general damages to the Respondent after awarding them the sum of N100,212.60k to cover the return leg of a failed contract of carriage and also the Naira equivalent of CD$1,670 for expenses incurred as a result of the Respondent being prevented from boarding her flight back to her native Country.
(i) It is trite law that where there is a breach of contract the measure of damages is the loss as may fairly and reasonably be considered either arising naturally according to the usual course of things from such breach of contract itself or such as may reasonably be supposed to have been in contemplating of both parties at the time they made the contract as the probable result of the breach.
(ii) The trial court erred in law when it did not take into consideration the guiding principles of measure of damages for breach of contract.
(iii) General damages awarded by the Court did not arise naturally from the purported breach of contract of carriage between the parties and therefore cannot reasonably be supposed to have been within the contemplation of both parties at the time they made the contract as the probable result of the breach of it.
(iv) General damages are not awarded on ordinary breach of contract cases when special damages have been awarded without the prior agreement of parties.
(v) The award of both special and general damages in breach of contract cases amounts to double compensation.
(vi) The trial court having awarded the Respondent the sun of N100,212.60k to cover the return leg of a failed contract of carriage and also the Naira equivalent of CD$1,670 proceeded to award general damages of N10 Million.
(vii) In G. Chitex Ind. Ltd. O.B.I. (Nig.) Ltd (2005) NWLR (Pt. 945) p. 392 at 395 the Supreme Court held as follows:
“On the need to avoid double compensation in award of damages for breach of contract – A party in an action for damages arising from breach of damages for breach of contract is not entitled to double compensation. In this case, the only damages recoverable within the contemplation of the parties was the difference in the exchange rate the appellant was obliged to pay i.e. the sum of N66,000.00 which was the presumed normal consequence of the Respondent’s breach of the contract. It would amount to double compensation to pay a further sum of N3.5 million (Armels Transport Co. Ltd. v. Transco (Nig) Ltd. (1974) 11 SC 237 referred to)
“On whether claim or special and general damages appropriate for breach of contract –
A claim for both special and general damages is not appropriate in an action for breach of contract, but there are special circumstances where the parties do make contracts and bind themselves knowing that a breach of contract under the special circumstance would also attract damages which the parties agreed at the time of the contract. (Agbaje v. National Motors (1971) 1 UILR 119 referred to)
GROUND THREE
The learned trial Judge erred in law when he awarded the Respondent the Naira equivalent of CD$1,670 for expenses incurred as a result of the Respondent being prevented from boarding her flight back to her native Country when it was not claimed by the Respondent.
Particulars
i.The Respondent did not claim for refund of the expenses incurred in any sum.
ii.The trial court awarded the sum of CD$1,670 damages to the Respondent.
iii.The trial court cannot give to the Respondent what she has not asked for more than what she has asked for.
In Ndika v. Chiejina (2003) 1 NWLR part 802, page 451 at 485, ratio 7, the court held as follows: “On award of relief in excess of the claim of a party:
A Court of law has no power to award to a claimant what he did not claim or more than what he asked for. In the instant case, the relief granted to the respondent by trial Judge was more than what he asked for. However an appellate court is not precluded from modifying the award to bring in the line with the relief sought if it can be done.”
In NDIC v. S.B.N. Plc (2003) 1 NWLR (Pt. 801) Pg. 311 at 330 ratio 22 the Court held:
“On Duty of Court not to grant relief not sought and rationale therefore –
A court has no power to make an order or grant relief which has not been asked for. A court may award less but not more than what the parties claimed. The court should never award what was not claimed. This is so because a court is not a charitable institution; its duty in civil cases is to render to everyone according to his proven claims. This is based on the principle of adjudication that a party must be given opportunity to answer the claim against him and if need be to resist the claim.”
GROUND FOUR
The learned trial judge erred in law when he raised constitutional provisions (suo motu) in determining this case when the Respondent did not base her on a breach of her constitutional rights. The court therefore made a case for the Respondent on its own.
Particulars
i.The Respondent did not plead nor did she lead any evidence with regards to breach of her constitutional rights.
ii. In summit Fin Co. Ltd v. Iron Baba & Sons Ltd. (2003) 17 NWLR part 848 89 at 104 ratio 22 the Court stated as follows:
“A party is bound by his pleading and cannot deviate from it. So the court is bound by the pleadings before it. It follows therefore that evidence must be led in accordance with the pleadings. Evidence led not accordance with pleadings and/or upon fact not pleaded goes to no issue. To allow a party to adduce evidence contrary to his pleadings is to allow that party to make a different case at the trial from which he set out to prove. The court is bound to disregard such evidence for not belonging to issues raised”
iii. A court cannot plead or make a case for a party or deviate from of the party or base its judgment on grounds not canvassed by a party.
GROUND FIVE
The lower court erred in law when it awarded the sum of N2,000,000 to the Respondent as legal fees when the Respondent asked for N10,000,000 and did not lead evidence on its entitlement to either the sum N2,000,000 or the sum of N10,000,000 as claimed.
Particulars
(i) There is no shred of evidence adduced by the Respondent in support of the claim for legal fees -a claim in special damages.
(ii) Special damages must not only be pleaded, it must be particularized and strictly proved.
(iii) The Respondent only pleaded a claim for N10,000,000 but led no evidence on it.
(iv) The Respondent never claimed for N2,000,000 nor was evidence led in proof of N2m.
(v) The trial Court proceeded to award the Respondent a sum of N2m in legal fees.
In Hassan v. Maiduguri Mgt. Committee (1991) 8 NWLR part 212 page 738 at 741 ratio 4 the court held as follows: “On need for a litigant to plead and prove his claim –
A litigant can only get what he claimed if both on the pleadings and the evidence he has successfully made out and proved his claim.”
(vi) Costs of legal fees are not awarded under Nigerian law. Cost of legal fees is in the nature of special damages and must be proved strictly. The Respondent led no evidence on the cost of N2,000,000 or 10,000,000.
(vii) There is no basis for awarding the head of claim when it was not proved strictly. In Guinness (Nig.) Plc v. Nwoke (2000) 15 NWLR Pt. 689 p.140 the Court of Appeal per Ibiyeye, J.C.A. held as follows: On propriety of joining a claim for solicitor’s fee in an action for detinue. “The crucial question is; did this head of claim arise as a result of damage suffered by the cross-appellant in the course of any transaction between him and the cross-appellant? This is the question that ought to pre-occupy the mind of any reasonable tribunal dealing with the circumstances of the instant head of claim. A reasonable tribunal, such as this court, will definitely opine that the this score fell below the standard of acceptability because the circumstances making up the so called “special damages” occurred after the cause of action in this case had arisen. The seemingly financial inconvenience of the Solicitor’s fee of staggering N500,000.00 to the cross-appellant did not form part of the basis of the tort of detinue on which the cross-appellant pivoted his course of action. In addition, the character of the act forming the said Solicitor’s fee of N500,000.00 made as head of claim by the cross-appellant is obviously not cumulative to the tort of detinue committed by the cross respondent. It is outside it. I am of the strong view that this type of claim is outlandish to the operation of the principal of special damages and it should not be allowed. It is absolutely improper to allow the cross appellant to pass his financial responsibility couched as “special damages to the cross-respondent.” 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 concise statement of the head of complaint of an Appellant in on 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)490 sc, where Adio, JSC, observed that –
“The law is that the particulars and nature of the error or misdirection alleged in relation to the ground of appeal should be the specific reasoning, findings or observations in the judgment or ruling in question relating to the error or misdirection complained of. They should be the enumeration of the error or misdirection in the Judgment or Ruling.”
In this case, the Particulars of Error highlighted above contain legal arguments and citation of authorities, which can be fatal sometimes, but in this case they add nothing and subtract nothing from their Grounds, and it is settled that the application of such rules should not be reduced to a matter of mere technicality – see Aderounmu v. Olowu (2000) 4 NWLR (pt. 652) 253, wherein it was held –
‘The rules are primarily designed to ensure fairness to the other side.The prime purpose of the rules that the Appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal; and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information, to the other side of the precise nature of the complaint of the Appellant and of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form.”
All the same, the rules also require parties to raise Issues for Determination from the Grounds of Appeal. The said Issues are meant to be a guide to the arguments and submission to be advanced in support of the Grounds of Appeal – see Angyu v. Malami (1992) 9 NWLR (pt. 264) 242 at page 250. In this case, the Appellant formulated 7 Issues for Determination in his brief prepared by Osayaba Giwa-Osagie, Esq., Joseph I. Ogunu, Esq., and Ike Nwachukwu, that is –
1. Whether the learned trial Judge erred in law when he failed to apply the limitation of liability provisions as contained in the Appellant’s Terms and conditions of carriage of Passengers and baggage 2006 and the Montreal Convention 1999 as domesticated by the Civil Aviation Act, 2006.
2. Whether there was any justifiable ground for the learned trial Judge to have held –
“I find as facts the following:
The Plaintiff utilized the paper ticket with which she was issued by the said travel agent embark on her outward journey on the Defendant.”
3. Whether the learned trial Judge was right when he awarded the sum of N10 Million in general damages to the Respondent after awarding N100,212.60 to cover the return leg of a filed contract of carriage and also the Naira equivalent of CD$1,670 for expenses incurred as a result of the Respondent being prevented from boarding her flight back to her native Country.
4. Whether the learned trial Judge was right when he awarded the Respondent the Naira equivalent of CD$1,670 for expenses incurred as a result of the Respondent being prevented from boarding her flight back to her native country when it was not claimed by the Respondent.
5. Whether the learned trial Judge was right when he awarded the sum of N2,000,000 to the Respondent as legal fees when the Respondent asked for N10,000,000 and did not lead evidence on its entitlement to either the sum of N2,000,000 or the sum of N10,000,000 as claimed.
6. Whether the learned trial judge was right when he awarded interest on the Judgment sum at a rate higher that that claimed by the Respondent.
7. Whether the trial Judge was right when in determining this case, he (suo motu) raised constitutional provisions when the Respondent did not base her case on a breach of her constitutional rights.
The Respondent submitted in her brief prepared by Olatunde Oladele, Esq., and Oladipo Osinowo, Esq., that the Issues that call for determination in this appeal, as distilled from the Appellant’s Grounds of Appear, are as follows –
1. Whether the limitation of liability as contained in the Appellant’s term and condition of carriage of passengers and baggage 2006 and the Montreal convention 1999, as domesticated by the civil Aviation Act, 2006 is applicable in this suit and the award of damages in the sum of N10,000,000.00 and $1,670.00 is within the jurisdiction and or powers of this Hon. Court.
2. Whether Section 34 of the Constitution of the Federal Republic of Nigeria, 1999 (AS AMENDED) is applicable in this suit.
3. Whether the Respondent has proved her claim for solicitor’s fees, and entitled to be awarded the sum of N2,000,000.00 as solicitor’s fee granted by the Hon. Court.
4. Whether or not the Judgment of the Hon.Court is weight of evidence led before the Hon. Court.
5. Whether or not the Respondent is entitled to the award of interest on the Judgment sum.
The focal point of the Appellant’s grouse is that the lower Court failed to apply the limitation of liability as contained in its Terms and conditions of Carriage of Passengers 2006 [hereinafter referred to as conditions of carriage] and the Montreal convention 2006, as domesticated by the Civil Aviation Act 2006, and proceeded to award the Respondent damages at large, which is unjustifiable.
A limitation of liability clause permits contracting parties to reduce or eliminate the potential for direct, consequential, special, incidental and indirect damages should there be a breach of contract- see IT Law Wiki, and damages at large is an award that there is no exact measurement for, such as for pain and suffering – see USLegal.com where the term is defined as follows –
“Damages at large are compensation for other than for material loss. The term refers to general damages consisting of non-economic loss and exemplary damages in appropriate case. They may include, among others, elements for loss of reputation, injured feelings, bad or good conduct by their party, or punishment, and therefore no precise amount can be determined. The amount of damages at large are based on a subjective determination made on a case-by-case basis, after taking all the facts and circumstances involved into account”.
The Respondent’s Issue 1 captures the essence of the Appellant’s grievance, but we cannot consider the issue of limitation of liability without ascertaining whether the lower court was right to find the Appellant liable in the first place.
To this end, I think we should determine the question raised by the Appellant’s Issue 2, which is in line with the Respondent’s Issue 4, before anything else.
The Appellant’s contention is that there was no evidence that it wrongly refused the Respondent carriage and there is no basis for believing her claim. It argued that it denied that she presented her paper ticket on demand; that it persistently insisted that she was denied boarding because she did not present her paper ticket upon demand, which is all that it was required to do; that the onus of proof shifted to her but she failed to lead acceptable evidence to support her claim or rebut its claim; that he who asserts must prove but she did not discharge that burden other than the bare assertion that she presented her paper ticket, which is not sufficient to satisfy the burden on her or for the court to believe her and proceed to give judgment in her favour; and that
“PW2 admitted that she was told at the point of denial of boarding that the reason for the denial of boarding was that she did not possess a paper ticket – – that there would have been no need to inform [her] which she admitted that the reason for denying her boarding was because she did not possess a paper ticket if she actually had her ticket as it is beyond contemplation that [its] official in Canada would deliberately deny a young student travelling home for holidays her right of boarding. It is also beyond contemplation to imagine that they derived any particular satisfaction from such a conduct. It is implausible, illogical and irrational as she was neither a target nor the only person travelling on that flight to Nigeria en-route Dubai for her to be singled out for such treatment that if she had her paper ticket on he, she could easily have shown same to the officials upon request that [her] claim ought to have been established by a preponderance of evidence – that this was lacking and absent and the Court had no justification at all to have relied or believed such a piece of evidence .”
Further, that there is no basis for the lower Court to hold that its refusal to carry her amounted to a breach of contract when it adduced admissible and justifiable evidence to show that its refusal was proper and she was unable to show that its refusal was unjustified; and that it is settled that a trial Court must give reasons for believing or disbelieving a witness, citing Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511 & Nwoke v. Okere (1994) 5 NWLR (Pt. 343) 159.
The Respondent cited authorities on weight of evidence/burden of proof – Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24, B.O.N. Ltd v. Saleh (1999) 9 NWLR (Pt. 618) 331, Sections 135, 136(1) & (2), and 137 of the Evidence Act.
Further citing SPDC (Nig.) Ltd. v. Emehuru (2007) 5 NWLR (pt. 1027) 347, she submitted that she established that the ticket she used to leave Nigeria was the same she presented at the Airport in Canada before the Appellant’s agent proceeded to clear and check her in, and that the agent who denied her access to board the airplane did not have any justification to do what he did to her. She cited AD v. Fayose (2005) 10 NWLR (pt. 932) 209, where the Court held –
“Where there are conflicting presumptions, the case is the same as if there were conflicting evidence”. And argued that Exhibit B – the ticket with Ref. No. EDTMDF is documentary evidence establishing that the paper ticket is acceptable to the Appellant, and can be used by the Court to ascertain and clear the conflict in the evidence of party as to ascertain whether or not it is the paper ticket which she presented at the Airport; that the Appellant’s witness also admitted that said Exhibit B is a valid paper ticket and the law is that facts admitted need no further proof; and that the lower Court was right to conclude that she utilized the said ticket.
She also referred us to the position of the law on evaluation of evidence by the trial court and an appellate court, citing Orodo v. Josiah (2010) 18 NWLR (pt. 1225) 653, Ogbechie v. Onochie (No. 2) (1988) 1 NWLR (pt. 70) 37, Onwugbufor v. Okoye (1996) 1 NWLR (pt. 424) 252, Oyediran v. Oke (1997) 11 NWLR (pt. 530) 606, Ebba v. Ogodo (1984) 1 SCNLR 372, Kopek Const. Ltd. v. Ekisofa (2010) 3 NWLR (pt. 1182) 618, Jau v. State (2010) 4 NWLR (pt. 1184) 217, Ogbiri v. N.A.O.C. Ltd. (2010) 14 NWLR (pt. 1213) 208, Ajibulu v. Ajayi (2001) 11 NWLR (pt. 885) 458, S.P.D.C. (Nig). Ltd. v. Edamkwue (2009) 14 NWLR (pt. 1160) 1 and Unilorin v. Adesina (2010) 9 NWLR (pt. 1199) 331, and the gist of it is that she led credible evidence to support her case; that the lower court’s findings in her favour has not occasioned miscarriage of justice; and that this court cannot interfere with the findings made by the lower court.
The position of the law, as stated by the Respondent, is very correct – the Appellant’s complaint in Ground 8 of its Grounds of Appeal is that the “Judgment is against the weight of evidence”, and when an Appellant makes such a complaint, what he means is; that when the evidence adduced by him is balanced against that adduced by the Respondent, the Judgment given is against the weight that should have been given to the totality of the evidence. So, an appeal against weight of evidence is basically on facts – see Agbamu v. Ofili (2004) 5 NWLR (pt. 867) 540. It is also elementary law that – “he who asserts must prove” – see Famfa Oil Ltd. v. A.G. Fed. (2003) 9-10 SC 31, where Belgore, JSC (as he then was) insisted – “the evidential principle of who asserts must prove has stayed with us too long that it is too late to change the rule”.
Then again, the burden of proof is not static in civil cases; it does shift – see Zubairu v. Mohammed (2009) LPELR -5124 (CA) where Oredola, JCA, said –
“By Section 137 (of the Evidence Act) the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the Court will give Judgment if no evidence is adduced on either side. The onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party and so the burden changes place almost like the colour of a chameleon until all the issues in the pleadings have been dealt with. By Section 137(2), the burden of proof shifts between the parties in the course of giving evidence in the proceedings. From the language of the subsection, there is some amount of versatility in the shifting process of the burden. The shifting process, in the language of the subsection, will be so on until all the issues in the pleadings have been dealt with. Thus, as firmly or established, the standard of proof in civil cases is on the balance of probabilities or preponderance of evidence. Hence, where evidence adduced is loaded or tilted to one to one side and there is nothing forthcoming on the imaginary scale from the other side, the evidence proffered from the former will satisfy the requirement of proof”.
In other words, all a plaintiff needs to establish is that his story is more likely to be true than the Respondent’s. As Dr. Akinola Aguda explained in his book –
“It is not enough for a party to a case who has the onus of establishing a particular fact to say that his own evidence is just as good as that of his opponent. For what the law says that he must do to discharge the onus of proof on him is to prove by evidence which convinces the Court of the probability of his case rather that of his opponent on the point in issue”. [Law and Practice relating to Evidence in Nigeria]
In this case, the Respondent adopted her written statement on oath wherein she asserted as follows in paragraphs IV, V, VII, IX, XIII, XIV, XV and XVIII that –
“she boarded the Appellant’s aircraft and departed from Lagos on 26/5/08 “after properly being checked into the aircraft and her ticket was endorsed by the staff of the [Appellant]”; she called its office in Canada on 21/12/08 and confirmed she was a passenger with it for 22/12/08; she arrived at the Airport in Canada on the said 22/12/08 “and proceeded to the check-in counter where an officer of the – airline checked her in with two luggages”; “after checking in she proceeded through the usual airport security screening and passport control protocols and thereafter proceeded to the flight gate to await the boarding announcement”; “when the flight was announced she proceeded with other passengers to board the aircraft and it was at the point of entering the aircraft that a male official of the [Appellant] who had a name tag addressed as Mr. Wright denied her entry on the ground that she did not have a proper ticket to enable her make the trip back to Lagos”; she explained to the official “that the ticket was originally purchased in Nigeria and that it was the some ticket that she had already used for the 1st trip which was from Lagos-Dubai-Canada and that this was the return trip”; and that the Appellant’s official –
“Instead of ascertain that she was duly enlisted to travel on Flight EK242 from Pearson International Airport to Dubai International Airport on 22/12/08 thereafter called the airport security guards and directed that she should be escorted out of the airport like a criminal or someone who had violated the laws.”
The Appellant’s witness – Okechukwu Iro, a Supervisor with the Airline, agreed that the Respondent “purchased tickets to enable her embark on the journey” but insisted that “that said ticket was not presented on demand on the second leg of the journey”, and that the Respondent was “mistakenly checked in by the [Appellant’s] agent at the counter, who issued her with 2 boarding passes and a hotel accommodation/feeding card issued presentation of her paper ticket”.
The lower Court found that the Respondent “utilized the paper ticket with which she was issued by the said travel agent to embark on her outward journey on the Defendant”, and in questioning the justification for the finding, the Appellant argued that it is not enough and not acceptable in law for a trial Judge to simply say – “I believe” cr “I didn’t believe a witness”; he must state and ought to state the reasons for believing or not believing each. That is true; evaluation of evidence entails assessing evidence to give value or quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – see Oyekola v. Ajibade (2004) 17 NWLR (pt. 902) 356 and Idakwo v. Nigerian Army (2004) 2 NWLR (Pt. 857) 249.
In this case, the lower Court did not give any reasons for finding against the Appellant; it merely set out the questions put to its witness under cross-examination and his replies thereto and then said “I find as fact the following” –
“The Plaintiff did purchase a ticket for her travels on the Defendant airline from a travel agent BIT TRAVELS & TOURS LIMITED duly authorized in that regard for a round journey from Lagos to Canada and back through Dubai, with the itinerary detailed on the print out – Exhibit B”. The Plaintiff utilized the paper ticket with which she was issued by the said travel agent to embark on her outward journey on the Defendant”.
Evidently, the lower Court did not do any evaluation of the evidence before it, but that is not enough to say that its finding is wrong and to allow the appeal.
We still have to determine whether it could have reached a different decision – see Onajobi v. Olanipekun (1985) 4 SC (Pt. II) 156 and Anyanwu v. Mbara (1992) 6 SCNJ 90 where the Supreme Court per Nnaemaka-Agu, JSC, observed –
“It is the law that the fact that a party has established an error in the proceedings does not necessarily mean that the appeal must be allowed. Such on error will be a ground for allowing the appeal if and only if, it is substantial in the sense that if he had directed himself correctly he would have reached a different conclusion”.
In this case, the Respondent did establish that she used the ticket purchased in Nigeria on the first leg of her journey to Canada; that she was checked in by an official of the Appellant on the second leg of her journey from Canada; that she went through airport security screening and passport control protocols; and that she actually proceeded to board the aircraft before she was denied entry. The Appellant is not contesting these facts, however, its defence is that she was mistakenly checked in by its agent at the counter, and its official was right to stop her at the boarding gate because she did not have a valid paper ticket. On whose side does the evidence preponderate? The Respondent, of course, and what this means is that the burden shifted to the Appellant to justify why the Respondent, who had used a ticket on the first leg of her journey, and who had been checked in by its agent at the airport counter on her journey back, was denied boarding by one of its officials at the point of entering the aircraft.
It denied her boarding in circumstances that leave much to be desired, and contrary to its position that she did not discharge the burden on her other thon the bore assertion that she presented her paper ticket, it is the Appellant that failed to discharge the burden on it other than its bare assertion that she was denied boarding because she did not present her paper ticket on demand. She flew out of Lagos to Canada through Dubai on its flight; she was checked in by its agent at the Airport in Canada; and she actually got to the boarding gate. With the scales weighing in her favour, there was a definite shift of the burden that initially lay on her onto the Appellant, who had a lot of explaining to do, but it failed to discharge that burden because there is nothing on its side of the scale to outweigh all that the Respondent placed on her own side of the scales. The lower Court could not have reached a different conclusion – the Appellant is liable for denying the Respondent boarding. This issue is resolved against it.
This appeal was argued on 9/10/2013 and Judgment fixed 6/12/2013, however our attention was drawn to correspondence from counsel addressed to the Deputy Chief Registrar. The letter from Respondent’s counsel reads –
“In line with the settled principal as confirmed in African Reinsurance Corporation v. JDP Construction Nig. Ltd. (2003) 13 NWLR (Pt. 838) 609 that parties can after a matter has been adjourned for judgment still forward any further useful authority to the court to assist the Court in the determination [it forwarded the following] –
i.On application of Limitation of Liability as per the Terms and Condition of carriage and Monreal Convention 1999
(a) The Appellant did not plead limitation of liability particular in paragraphs 23-25 of the statement of Defence and submission of counsel cannot be a substitute for un-pleaded facts. See the cases of Gbadamosi v. Tolani (2011) 5 NWLR (Pt. 1240) 352 at 369 and Daramola v. A.G. Ondo State (2000) 7 NWLR (Pt. 665) 440.
(b) The Terms and Conditions of Carriage is not applicable at all because it was not available at the time of the contract. Kabo Air v. Tarfa (2004) 6 WRN 134 at 149.
(c) Articles 18, 19, 20, 21, 24 and 29 of the Convention did not limit liability when the carrier refused to carry a passenger. The limitation of liability applies for damages sustained as result of delay, death, injury, or loss or damage to baggage or cargo. Kabo Air Ltd v. Tarfa (supra)
ii. On double compensation; the Supreme Court in Cameroon Airlines v. Otutuizu (2011) 8 WRN 1 and the Court of Appeal in Kabo Air Ltd. v. Tarfa (supra) granted both the special and general damages at the same time.
The Appellant counsel objected to this of action, and in his letter, said –
“In as much as it is settled principle of law that parties can after a matter has been adjourned for Judgment, forward any further useful authority to the Court to assist the Court, we are of the view that in this particular instance, it is done in bad faith and with a view to having a second opportunity of addressing the Court – -“.
I refuse to be dragged into the issue of whether the said letter was written in bad faith or not; it counsel’s prerogative to forward such authorities – see African Re. Corp v. JDP Const. (Nig.) Ltd. (supra), where Tobi, JSC, observed –
“It is trite law that where counsel comes across relevant authorities after a matter has been adjourned for judgment or Ruling, the authorities available to opposing for a possible input. That is the essence of our adversary system of adjudication”.
In that case, the Supreme Court “ignored the authorities” because the letter was not forwarded to opposing counsel, which is not the situation in this case; parties were requested to re-address the Court, which they did on 17/12/13.
Mr. M. Bamidele, for the Respondent, referred to Cameroon Airlines v. Otutuizu (supra) and Kabo Air Ltd. v. Tarfa (supra), and insisted that once a passenger is refused carriage by an airline, the airline is liable to pay the refund of the ticket and damages, which will not amount to double compensation; and that denying the Respondent boarding is not a ground for its liability. Mr. Ike Nwachukwu, for the Appellant, informed the Court that they had nothing to add to what had been said in the Appellant’s Brief of argument.
To start with, airlines do incur liability for “delayed or denied boarding” – see Harka Air Services (Nig.) Ltd. v. Keazor (2011) 13 NWLR (Pt. 1264) 320 SC, where the Supreme Court per Adekeye, JSC, very aptly observed as follows –
“There are laws regulating the liability of the carrier to its passengers. An airline’s liability to its passengers or customers could arise as a result of –
a) Injury sustained on board an aircraft or
b) Death arising from the course of a journey or
c) Damage or loss of goods
d) Delayed or denied boarding or
e) Interactions in the course of preparing for or the actual conduct of flight operation. – Section 48 of the Civil Aviation Act 2006. Warsaw Convention 1929. Montreal Convention 1999”.
The Montreal Convention 1999 (the Convention for the Unification of Certain Rules for International Carriage by Air) is a multilateral treaty adopted by a diplomatic meeting of the International Civil Aviation Organization [ICAO] Member States in 1999, which attempts to re-establish uniformity and predictability of the rules relating to international carriage of passengers, baggage and cargo. 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 hove 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.”
Coming home to Nigeria, 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 II 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 Appellant argued in its brief that the lower Court misdirected itself when it went outside the limitation of liability provisions of the Montreal Convention and awarded damages in excess of the liability limits; that it “was not justified to hove awarded the Respondent damages at large”, citing Section 48(1) of the Civil Aviation Act and Cameroon Airlines v. Abdul-Kareem (2003) 11 NWLR (Pt. 830) 1; that she did not show that its conduct was reckless or done with the knowledge that damage would probably result so as to award damages outside the liability limits; that the lower Court cannot on its own impute recklessness or establish or attempt to establish a case of recklessness on its part, citing Hassan v. Maiduguri Mgt. Committee (1991) 8 NWLR (Pt. 212) 738; that notwithstanding the clear provision of Article 29 of the Montreal convention, it awarded her damages in excess of the liability limit that aviation contracts are sui generis contracts possessing a life of their own, and any claim for damages must be brought within the provisions of enabling statutes, citing Sobayo v. Cameroun Airlines (CA/I/275/03) (Unreported); that her claim is governed by subject to conditions and limits set out by the Convention as domesticated by the Civil Aviation Act and its Conditions of Carriage, citing Cameroon Airlines v. Abdul-Kareem (supra); that her case is one of denied boarding and it ought to have limited itself to the relevant provision in its Conditions; and failure to apply the limitation of liability as contained in its Terms and Condition and the said Montreal Convention as domesticated occasioned a miscarriage of Justice.
On her part, the Respondent gave us the history, including the origin and all that of the Montreal Convention 1999 and further submitted as follows –
“Under the Montreal Convention 1999 air carriers are strictly liable for proven damages up to 113,700 special Drawing Rights (SDR) (up dated from 100,000,00SDR on December 31, 2009) a mix of currency values established by the International Monetary fund (IMF) approximately $138,000.00 per passenger at the time of its ratification by the United States in 2003 (as of December, 2011 around $175,800). Where damages of more thon 113,700 SDR are sought, the airline may avoid liability by proving that the accident which caused the injury or death was not due to their negligence or was attributable to the negligence of o third party. This defence is not available where damages of less than 113,700 SDR are sought. The convention also amended the jurisdictional provisions of Warsaw and now allows the victim or their families to sue foreign carriers where they maintain their principal residence, and requires all air carriers to carry liability insurance. The Montreal convention 1999 which the Appellant has made heavy weather of states that air carrier are strictly liable for proven damages up to 113,100 Special Drawing Rights which is approximately $138,000,00 per passenger at the time of its ratification by the United States in 2003. It is humbly submitted that the Judgment of the Honourable Court is within the limitation of the damages that may be awarded for a passenger under the Montreal Convention 1999 as it relates to claims for damages”.
The Appellant was quick to argue in its Reply Brief that the above submission “is a deliberate attempt to mislead [this Court] and a desperate attempt to secure victory at all cost”. Referring to Chapter III of the Montreal Convention on Liability of the carrier and Extent of Compensation for damage; Article 17 – Death and Injury of passengers – Damage to Baggage; Article 21 – Compensation in case of Death or Injury of Passenger, it submitted that contrary to the position stated by the Respondent, the limit of liability refers only to damages arising from death or bodily injury of the passenger and not for delay or refusal of boarding, as in the present case, which entitles the passenger to a refund of the ticket. To drive its contention home, it referred us to the following authorities on the duty of counsel not to mislead the Court – B & B Construction Ltd. v. Ahmed (1998) 9 NWLR (Pt. 566) 486, Okomo Oil Palm Ltd. v. Okpame (2007) 3 NWLR (Pt. 1020) 71, Abacha v. The State (2002) 11 NWLR (Pt. 779) 437, and Tsume v. Peverega (2001) 2 NWLR (pt. 698) 556.
The Appellant is right; the Respondent’s argument is predicated on the provisions of the Montreal Convention dealing with – “Compensation in case of death or injury of passengers”, which is certainly not what this case is all about. The Respondent was just denied boarding on her journey back from Canada, and it will really be asking too much of us to follow her on a wild goose chase by looking into other provisions that have nothing to do with the case at hand – that will not assist the court. See Momodu & Ors v. Momoh & Another (1991) 1 NWLR (Pt. 169) 608, relied on by this court [per Shoremi, JCA] in Okomo Oil Palm Ltd. v. Okpame (supra), where the Supreme Court held –
‘It is a very serious matter and indeed sad for counsel whose burden and inescapable duty is to assist the Court to appear to be intent in misleading the Court. Such an attitude of counsel, which is unethical and reprehensible, calls for condemnation by the Court in no uncertain terms.”
See also Tsume v. Peverega (supra), cited by the Appellant, where this Court per Chukwuma-Eneh, JCA (as he then was), hit the nail on the head as follows –
“It is a task fitted for counsel to bring to the notice of the court all relevant laws and authorities so as to enable the Court reach a fair decision in the matter before it”.
Surely, that is what is expected of counsel that wrote the Respondent’s brief – point the Court to the relevant provisions of the said Montreal Convention, and not obfuscate matters by bringing in aspects that will lead to a dead end.
However, she also argued that it is clear from the provisions of Article 29 of the said Montreal Convention, which is the relevant provision in this case, that compensatory damages can be claimed and recovered from an air carrier; that it only forbids action for punitive, exemplary or other non-compensatory damages; and that the lower Court awarded her general and special damages.
It is her contention that the award of special and general damages by the lower Court is within its jurisdiction as allowed by the Montreal Convention and based on its particular findings; she is entitled to a refund of expenses and compensated for the hardship suffered as a result of the acts of the Appellant.
The Appellant, however, repeated in its Reply Brief that the said award is more of punitive or exemplary damages; that the Respondent is a student, who was merely refused boarding of its flight for lack of proper documentation but the lower Court awarded her N10,000,000.00 as damages after ordering a refund of the cost of her ticket and that this is contrary to Article 29 of the said Montreal Convention, which forbids punitive, exemplary or any other non-compensatory damages, having compensated her with the refund of her ticket.
This is where issues raised in the re-address come in. The Respondent says the Appellant did not plead limitation of liability in its paragraphs 23 to 25, thus –
23. The Defendant states that this contract of carriage is governed by Emirates Conditions of carriage for passengers and baggage, 2006 and the Montreal Convention 1999 as domesticated by the Civil Aviation Act 2006.
24. That Article 3 of the said conditions of carriage provides as follows
3.1.1. We will provide carriage only to persons who possess a valid ticket (which includes the Flight Coupon for that flight unused Flight Coupons for subsequent flights recorded in the Ticket and the Passenger Coupon), provided that for each passenger, such person is named as the passenger in the ticket and he or she produces a valid passport which, in the case of an electronic ticket, must bear a serial number that matches the number specified in the e-ticket receipt/itinerary. 3.1.2. In the case of an electronic ticket, you are required to bring your e-ticket receipt/ itinerary or passenger receipt with you to the airport as it may be necessary for you to present it to us and to airport immigration and security personnel.
25. That the said contract of carriage has made adequate provisions for refund in the case of denied hoarding. In Article 9, it provides as follows –
9.3.1 If we cannot carry you in your ticketed class of service on d flight for which you hove u 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 different 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. This article 9.3.1 will not apply if we refuse to carry you for reasons permitted by these Conditions of Carriage (see, for example, Articles 6.4, 7, 9.6.1, 11.4.2, 11.4.3, 13.7.6.
The Respondent forwarded the following authorities to buttress her argument – Gbadamosi v. Tolani (supra), where Fasanmi, JCA, observed at page 369 –
“The Court observes that there was no pleading or evidence to the fact that the Respondent destroyed the crops on the land in dispute on the record. Therefore, it goes to no issue and must be disregarded . It is also the law that address by counsel as in the reply brief is not a substitute for pleadings nor evidence”.
Daramola v. A.G. Ondo (supra), where Onnoghen, JCA (as he then was) said –
“It is also the law that addresses of learned counsel are designed to assist the Court in arriving at a just decision in the case but they are no substitute for cogent and credible evidence proffered by the parties on the issues that call for determination”.
I cannot fathom what the Respondent’s contention is about the Appellant may not have expressly used the words “limitation of liability” but it did say that the contract of carriage between them is governed by its Conditions of Carriage and the Montreal Convention as domesticated by the Civil Aviation Act 2006, and its case is that she is not entitled to damages at large because of that fact. The Supreme Court did not touch on the Montreal Convention itself but the Warsaw Convention is the forerunner of the said Convention, and its decisions in the above stated cases, provides answers to the nagging question before us.
In Cameroon Airlines v. Otutuizzu (supra), the Appellant’s agent sold two tickets to the Respondent – Lagos to Doula, Cameroon to Harare, Zimbabwe to return on the same route to Lagos, and the second one Harare to Manzini, Swaziland and back to Harare. On arrival at Zimbabwe, he was kept in the transit hall and the next morning flown to Johannesburg, South Africa, instead of to Manzini, Swaziland. On arrival at Johannesburg, he was arrested and his personal effects and briefcase containing 20,000 US Dollars were removed from him and never returned to him. He was then deported to Zimbabwe where he spent 7 days in jail before he was flown to Nigeria. The trial Court held that he was entitled to compensation as general damages but refused to grant the claim in relation to his brief case containing 20,000 US Dollars.
On appeal, this Court ordered the Appellant to pay him the 20,000 US Dollars, and in dismissing the appeal to it, the Supreme Court held as follows –
“The Appellant was in breach of contract as principal and agent in not flying the Respondent to Manzini, Swaziland. It is reasonably foreseeable that a passenger arriving in South Africa without a transit visa would be arrested, with grave consequences for that passenger. Consequently, the act of the Appellant flying the Respondent to South Africa with no justifiable reason for doing so and knowing fully well that the Respondent did not have a transit visa, apart from being a clear breach of the agreed route, it amounts to a negligent breach of contract. A willful misconduct in the extreme. By the provision of Article 25 of the Convention, a carrier loses its entitlement to rely on the limit set on its liability by Article 22(1) where a briefcase containing 20,000 US Dollars and valuables of the Respondent is taken away (and never returned) by South African Immigration officials as a result of the willful act by the Appellant, in flying the Respondent to South Africa, when it knew that the Respondent did not have a South African transit visa. When the carrier commits willful misconduct, the Respondent is entitled to more damages than the limit set in Article 22 of the Convention”. [Per Rhodes-Vivour, JSC]
In the case of Harka Air Services (Nig.) Ltd. v. Keazor (supra), the Respondent was on the Appellant’s aircraft from Kaduna that crash-landed at Lagos Airport. He suffered serious injuries and body pains; lost his hand luggage and personal items; and received treatment at the Hospital. With particular reference to the issue of Limitation of liability, the Supreme Court per Adekeye, JSC, held that –
“-The carrier shall not be entitled to avail himself of the provisions of this Convention which limit or exclude his liability if the damage is adjudged by a Court seised of the case to be caused by his willful misconduct. Similarly, the carrier shall not be entitled to avail himself of the provisions if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment. Where there is default of such magnitude that it amounts to a willful misconduct, the limits provided by the Convention to the liability of the carrier are not applicable”.
In the same case – Harka Air Services v. Keazor (supra), Fabiyi, JSC, added that –
“To be guilty of misconduct, the person concerned must appreciate that he is acting wrongly and yet persists in so acting regardless of the consequences, or acts with reckless indifference as to what the result may be for damages awarded against a carrier to be at large, it is not sufficient for the act or omission that is relied upon to have been done recklessly, it must be shown to have been done with knowledge that damage would probably result. It is extant in the record and rightly found by the learned trial Judge that the Appellant operated its flight from Kaduna to Lagos when other safety conscious airlines refused to do so and cancelled their flights as it rained early that day. The pilot was not given any clearance to land by the Air Traffic Controller when he reached the threshold. The aircraft was at o height above the normal and regular height. The pilot did not respond to the inquiry of the Air Traffic Controller whether he was landing or carrying out a missed approach. At the time the aircraft come in contact with the runway, it had already passed more than 60% of the runway distance. The learned trial Judge rightly found that willful misconduct was established to make damages at large. At every turn of event during the ill-fated journey, the pilot embarked upon risky venture. He appreciated that he was acting wrongly and yet persisted in so acting regardless of the consequences. He acted with reckless indifference as to what the result may be”.
Rhodes-Vivour, JSC, also held in Harka Air Services v. Keazor that –
“Willful misconduct is 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. A pilot that lands his plane without clearance from the control tower to my mind is guilty of willful misconduct – “.
In this case, the question that rears its head is whether the act of denying the Respondent carriage on the flight from Canada, qualifies as willful misconduct on the part of the Appellant, to warrant her being awarded damages at large.
This is a completely different issue from whether it is liable to her or not.
It 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 insists in its Article 29 that in any action for damages, “punitive, exemplary and any other non-compensatory damages SHALL not be recoverable”. Damages are said to be punitive or exemplary when they are awarded as punishment for the Defendant or as a deterrent and are for his loss – see Baker Marine (Nig.) Ltd. v. Chevron (Nig.) Ltd. (2006) 13 NWLR (pt. 997) 276 SC, G. K. F. Investment (Nig.) Ltd. v. Nitel Plc. (2009) 15 NWLR (Pt. 1164) 344 and Odiba v. Azege (1989) 9 NWLR (Pt. 566) 370, where the Supreme Court held that –
“The primary object of an award of damages is to compensate the Plaintiff for harm done to him or a possible secondary object is to punish the Defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages. Vindictive damages, even retributory punishment and comes into play whenever the Defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the low and the like”.
In effect, for the Respondent to be awarded damages at large in excess of the liability limits, she must show that the official, who stopped her from boarding the flight at the airport in Canada, knew that what he was doing was wrong; and yet, he persisted in doing so regardless of the consequences or acted with reckless indifference as to what the result may be – see Harka Air Services (Nig.) Ltd. v. Keazor (supra) and Cameroon Airlines v. Abdul-Kareem (supra). The Appellant contends that she did not show that its conduct was reckless or done with the knowledge that damage would result, and that the lower court cannot on its own impute recklessness or establish or attempt to establish a case of recklessness on its part and proceed to give judgment on that basis.
I agree with the Appellant; this time, the burden rested squarely on the Respondent to show that its official acted wrongly when he refused to allow her board the flight in Canada; not only that, she must also show he did it with reckless indifference as to the consequences or what she would suffer from it. But she merely stated in paragraph 18 to 21 of her Statement on oath that –
18. I explained my ticket itinerary to the [Appellant]’s Official and stated that the ticket originally purchased in Nigeria and that it was the same ticket that I had already used it for the 1st trip, which was Lagos-Dubai-Canada and that this was the return trip.
19. I further directed the [Appellant]’s official to make the necessary clarification by calling the Nigeria Office or alternatively check the flight data base for my name and flight details, but my requests were rebuffed by the officer.
20. I immediately called my parents in Nigeria to inform them of the problem and my parents also tried to talk to the official but he equally rebuffed them.
21. The [Appellant]’s official instead of ascertaining that I was duly enlisted to travel on Flight EK242 from Pearson International Airport to Dubai International Airport on 22nd December 2008 thereafter called the airport security guards and directed that I should be escorted out of the airport like a criminal or someone who had violated the laws. Her mother, Ngozi Ngonadi, who testified as PW1, also stated as follows –
XVI. She further directed the [Appellant’s official to make the necessary clarification by calling the Nigeria office or alternatively check the flight data base for her name and flight details, but her requests were rebuffed by the officer.
XVII. She called us (her parents) in Nigeria to inform us of the problem and myself and her father also tried to talk to the official but he equally rebuffed us.
Obviously, what PW1 had to say about what happened in Canada and what her daughter had said to the official is hearsay and is, therefore, inadmissible – see Ijioffor v. the State (2001) 4 SC (Pt. II) 1, wherein it was explained that –
“Hearsay is generally regarded as one of the most complex subjects in the law of evidence. It was reformulated by Rupert Cross as follows: “Assertions of persons other than the witness who is testifying (including statements relied on as equivalent to assertions, although not primarily intended as such by their maker, and conduct relied on as conduct equivalent to the actor’s assertion of any fact other than his contemporaneous state of mind or physical sensation, although not so intended by him) are inadmissible as evidence of the truth of that which ore asserted”.
The only testimony from the PW1 that is relevant to this case is her assertion that she and the Respondent’s father tried to talk to the official on the phone “but he equally rebuffed” them. The Respondent did say he rebuffed her and that her parents were also rebuffed when they tried to talk to the said official. But the issue is not whether she or her parents were rebuffed; the Appellant is liable for whatever its official did or said that led to her being denied boarding. The issue is whether his action on that day amounted to willful misconduct, and what she did say is not sufficient to discharge the burden that was on her to show that the official acted deliberately or recklessly or with malice when he refused to allow her board the said flight from Canada to Nigeria that day. The Respondent failed to discharge the burden on her to prove this aspect of her case and is not entitled to damages at large, but the lower Court held that –
“-The Defendant Airline had a particular duty of core to facilitate the return leg on contract of carriage for a Plaintiff who is a foreign national at the port of scheduled departure upon representation of papers given by duly constituted Authorities with any requirement for certification or authentication the Defendant Airlines responsibility to perform. I also held (sic) that any passions to the contrary in any contract of carriage to be on abdication of responsibility and a duty of care. More pertinently any such negating provision would be a violation of Section 34 of the 1999 Constitution. No citizen of this Country has the capacity to agree to his or her dignity being degraded as a voluntary act, endangering the rights of others who would not subject themselves to such diminution by the some terms in a Contract of Carriage. No citizen of this Country has the capacity to agree to his or her dignity being degraded as a voluntary act, endangering the rights of others who would not subject themselves to such diminution by the same terms in a Contract of Carriage”.
The Appellant argued under its Issue 7 that the Respondent did not raise the issues of duty of care or contravention of the Constitution; that it did not also raise or allude to them; and that the lower Court raised and determined the issues suo motu and based its Judgment on it, citing Onyeama v. Obodo (2008) 16 NWLR (Pt. 1114) 446. It is the Appellant’s contention that the lower Court erred by raising the issue of Section 34 suo motu, and relying on same to reach a conclusion without giving counsel the opportunity to address the said Court.
The Respondent cited Adeyanju v. WAEC (2002) 13 NWLR (pt. 785) 479 Akpan v. Udoh (2008) 3 NWLR (Pt. 1075) 590. Nwarata v. Egboka (2005) 10 NWLR (Pt. 933) 241, Adeogun v. Ekunrin (2003) 2 NWLR (pt. 856) 52 Ikenta Best (Nig.) Ltd. v. A.G. Rivers State (2008) 6 NWLR (pt. 1054) 612, and argued that her claims fall within Section 34 of the Constitution so the lower Court did not raise the issue suo motu, that it did not solely base its Judgment on the provision as stated by the Appellant; and that the finding on which it based its Judgment is from her pleadings and the testimony of her witnesses in this suit.
This issue in easily resolved; in certain cases, the lower Court’s reference to the said Section 34 of the Constitution would be apt or even commendable, but in this case, its reference to the said Section is irrelevant and uncalled-for. Parties are not disputing the fact that the said contract of carriage is subject to Article 29 of the Montreal Convention that forbids punitive, exemplary or any other non-compensatory damage. Compensatory damages 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; it provides a Plaintiff with the monetary amount necessary to replace what was lost, and nothing more. They differ from “punitive damages”, which punish a Defendant for his or her conduct as a deterrent to the future commission of such acts.
In this case, the lower Court did not even refer to the said Convention, not to mention apply it to its decision. It merely made some findings of fact, and went on to pontificate about abdication of responsibility and duty of care; violation of Section 34 of the 1999 Constitution; and the fact that – “no citizen of this Country has the capacity to agree to his or her dignity being degraded as a voluntary act, endangering the rights of others who would not subject themselves to such diminution by the same terms in a Contract of Carriage”.
The object of an international 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, where Rhodes-Vivour, JSC, added that – “all countries that are signatories to it apply it without recourse to their respective domestic law”, and Harka Air Services (Nig.) Ltd. v. Keazor (supra), where the Supreme Court per Adekeye, JSC, further explained that –
“The Warsaw Convention is an international treaty, an international agreement, a compromise principle which the High Contracting States have submitted to be bound by the provisions. They are therefore an autonomous body of law whose terms and provisions are above domestic legislation. Thus, any domestic legislation in conflict with the Convention is void. The purpose and intention of the Warsaw Convention is to remove those actions governed by the Warsaw Convention as amended by the Hague protocol from the uncertainty of the domestic laws of the Member States. The law is that where domestic/common law right has been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right and not the domestic/common law. Hence, 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.
The lower court was, therefore, on a frolic on its own when it dragged the constitutional right of the Respondent into the equation because her action is governed by the Montreal Convention and she cannot eat her cake and have it; her claims can only be asserted in accordance with and subject to the terms and conditions of the Convention, and cannot be pursued under any other law.
But that is not all, it is clear from the lower Court’s conclusion that it was because of its conviction that her rights were violated that it awarded her –
a. N100,212.60k to cover the return leg of a failed contract of carriage.
b. The Naira equivalent of CD$1,670 for expenses incurred as a result of the Plaintiff being prevented from boarding her flight bock to her native Country.
c. N10,000.00 in general damages.
d. The legal costs of this action set at N2,000.000.
e. Interest at 21% per annum to run on all the above amounts from the date of Judgment till date of final liquidation.
The Appellant argued under Issue 3 that general damages are not awardable in breach of contract cases when special damages have been awarded without the prior agreement of parties; that their agreement provides only for a ticket refund and the Montreal Convention expressly prohibits non compensatory or punitive damages; and that the award of both special and general damages in breach of contract cases amounts to double compensation, citing G Chitex Ind. Ltd v. O.B.I. (Nig.) Ltd. (2005) NWLR (Pt. 945) 392; CBN v. Ahmed (2004) 15 NWLR (Pt.897) 597 and Joseph v. Abubakar (2002) 5 NWLR (Pt. 759) (sic).
The Respondent referred us to the law on general and special damages, citing Elf. Pet. (Nig.) Ltd. v. Umah (2007) 1 NWLR (Pt. 1014) 44, UAC (Nig.) Plc v. Sodolu (2007) 6 NWLR (Pt. 1030) 368, Uman v. Owoeye (2003) 9 NWLR (Pt. 825) 221, CBN v. Ahmed (2004) 15 NWLR (Pt. 897) 591, on general damages, and Okeke v. Aondoakaa (2000) 9 NWLR (Pt. 673) 501, Ijebu Ode Local Govt. v. Adedeji Balogun & Co. Ltd. (1997) 1 NWLR (Pt. 166) 136, UTB (Nig.) v. Ozoemenam (2007) 3 NWLR (Pt. 1022) 448, Nicon Hotels Ltd. v. NDC Ltd. (2007) 13 NWLR (Pt. 1051) 237, Uman v. Owoeye (supra), Gamboruwa v. Borno (1997) 3 NWLR (Pt. 495) 53, Oshinjinrin v. Elias (1970) 1 All NLR 153, Chukwu v. Makinde (2007) 9 NWLR (Pt. 1038) 195 and C&C Const. Co. Ltd. v. Okhai (2003) 18 NWLR (Pt. 851) 79, on special damages. She urged us to hold that the damages awarded to her by the lower Court are within its jurisdiction.
In his re-address, the Respondent’s counsel referred us to Kabo Air Ltd. v. Tarfa (supra), to buttress her argument that she is entitled to both special and general damages, and this would not amount to double compensation. The incident involving the Respondent in Kabo Air Ltd. v. Rickey Tarfa (supra), occurred in 2004, and it concerned a domestic flight from Lagos to Maiduguri. He was awarded N1,000.000 general damages. On appeal, this Court held –
“There was a contract of carriage entered into by parties because of the act of purchasing of a ticket. Evidence of PW1 showed that the flight did not come by 6.00pm but 7.00pm. The boarding process was very rowdy and this resulted in the sale of more tickets than the available seat and this made the staff to assist some preferred or selected passengers. After a long waiting, Respondent’s ticket was founded on the disorderly queue preparatory to boarding the plane but the Appellant’s officers without warning moved the stairs away thus denying the Plaintiff and other passengers the opportunity of boarding the plane. The Court considered the purpose of the trip of the Respondent, which was the primary object of an award of damages, which is to compensate the Respondent and the harm done to him, including the embarrassment and humiliation caused by the Appellant’s officers on duty at the airport, which is the secondary object, that is, to punish the Appellant for her officer’s conduct. I am guided by the principles laid down laid down in a plethora of cases in awarding general damages. Much as I feel that the learned trial Judge was justified in awarding general damages against the Appellant. I am of the opinion the award of N1, 000,000.00 is quite excessive . However, while I resolve this issue in favour of the Respondent I hold that the sum of N250,000 is adequate for the Respondent in the circumstances. This is in consideration of the fact that the Respondent is entitled to the refund of N7,000.00 being cost of the air ticket”.
On the face of it, the above decision may appear to favour the Respondent but the decision of this Court in that case cannot avail her because that case was decided in 2004 under the domestic law on damages, and this case involves the Montreal Convention 1999, as domesticated by the Civil Aviation Act 2006. Section 48 (1) of the Act states that the provisions of the Montreal Convention “SHALL from the commencement of this Act [in 2006] 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 and SHALL subject to the provisions of this Act govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons”.
The incident involving the Respondent occurred in 2008, and it concerns an international carriage by air from Nigeria to Canada and back to Nigeria. The Supreme Court made it clear that “an air passenger is not a liberty to choose as between the provisions of the Convention and the domestic/common law for claims against the carrier” – see Harka Air Services v. Keazor (supra). So, the authority she relied on – Kabo Air Ltd. v. Tarfa (supra) decided in 2004, is of no moment in this appeal. However, I will consider the issue on its merit.
“General damages” are such, as the law will presume to be the 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 the losses claimed on every item must have crystalized in terms and value before trial- see Shodipo & Co. Ltd. v. Daily Times (1972) All NLR 842, where Elias, CJN, observed as follows –
“I fail myself to see any difference in principle between a claim for special damages and a claim for general damages. One, of course has to be proved as completely as does the other. The only difference is that where one is claiming special damage, the circumstances are such that one is able to put one’s finger on a particular item of loss and say, ‘I can prove that I lost so much there, so much there, and so much there’, whereas a claim for general damages means this: ‘We cannot prove particular items, but we can prove beyond all possible doubt that there has been pecuniary loss’. Once that has been proved, I cannot myself see any difference in principle between special damage and general damage”.
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 said contract of carriage, which is unjustifiable in law, not only because her action was governed by the Montreal Convention but also 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 some injury under another head ”
In addition, she claimed the sum of N10m as “cost of this action”, and the lower court awarded her “the legal cost of this action set at N2,000,000.0”. The Appellant argued under Issue 5 that there is no shred of evidence adduced in support of this head, which is a claim in special damages; that she only pleaded a claim for N10m and never claimed for N2m nor was evidence led in proof of N2m but curiously, the lower Court awarded her N2m in legal fees, citing Hassan v. Maiduguri Mgt. Committee (1991) 8 NWLR (pt. 212) 738 ; that she did not tender documents showing evidence of such payment so there was no basis for awarding this head of claim, citing Guinness v. Nwoke (2000) 15 NWLR (Pt. 689) 140, Haway v. Mediowu (Nig.) Ltd. (2000) 13 NWLR (pt. 683); and she ought to lead evidence in strict proof if it is capable of being awarded.
The Respondent, however, submitted that the law is that cost normally follows an event, and a successful party in any event is entitled to his cost, citing Adelakin v. Oruku (2006) 11 NWLR (Pt. 992) 585; that order 25 Rule 7 of the Federal High Court Rules empowers the Court to grant cost to a party who is in the right, to enable him to be indemnified for the expenses to which he has been unnecessarily put as well as compensated for his time and effort; that the grant of costs in a civil trial is purely discretionary and where a trial Judge exercises his discretion judicially and judiciously, this Court has no business to question such exercise of discretion, and it is not also the role of this Court to ask the lower Court the reasons why it exercised its discretion the way it did, citing Nicon Ins. Corp. v. Olowofoyeku (2006) 5 NWLR 244 @ 258, Adelakin v. Oruku (supra), Trade Bank Plc. v. Yisi (Nig.) Ltd. (2006) 1 NWLR (Pt. 960) 101.
She further argued that the principle of fixing costs is not limited or restricted to consideration of official expenses only and the cost for the suit and for each proceeding is at the discretion of the trial Court, citing U.L.G.C. v. Inwang (2010) 4 NWLR (Pt. 1155) 529; and that the exercise of discretion by the lower Court in awarding her solicitor’s fees in the sum of N2m was judicious and the Appellant did not place any material facts to deny her claim for solicitors fee, citing Admin v. NBC Ltd. (2010) 9 NWLR (Pt. 1200) 543 SC.
The Respondent urged us to hold that she is entitled to costs as claimed but that is not likely because, as the Appellant rightly submitted, her claim for “cost of this action” is a claim for special damages, and the position of the law is that special damages must be specifically claimed and proved strictly. Strict proof does not imply unusual proof, rather it is basically “proof that would bend or lend itself to quantification” – see Skye Bank v. Kudus (2011) LPELR-CA/1/191/08, Momodu v. University of Benin (1997) 7 NWLR (Pt. 512) 325, and Orient Bank (Nig.) Plc. v. Bilante Int. Ltd. (1997) 8 NWLR (pt. 575) 37, where per Tobi, JCA (as he then was) explained the requirements as follows –
“The degree of “strict proof” required in relation to special damages depends on the character of the acts which produce the damage and the circumstances under which the acts were done Strict proof required in proof of special damages means no more than that the evidence must show the some particularity as in necessary for its pleading. It should, therefore, normally consist of evidence of particular loss which are exactly known or accurately measured before trial. Strict proof does not mean unusual proof, but simply implies that a Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the Defendant access to the facts which make such calculation possible. Strict proof in the con of special damages can mean no more than such proof as would readily lend itself to quantification or assessment .Special damages can only be awarded if a Court trying the case gives adequate consideration to the evidence in support and accepts it as having probative value so as to preponderate in favour of the person claiming”. See Oshinjinrin & Ors v. Elias & Ors. (1970) 1 ANLR 158, wherein it was held –
“What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates”.
In other words, a claimant must establish his entitlement by credible evidence, which is evidence “worthy of belief”, and “evidence to be worthy of credit must not only proceed from a credible source but must, in addition, be “credible” in itself, by which is meant that it should so natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe if – see Black’s Law’ Dictionary. 6th Ed., and S.P.D.C. (Nig.) Ltd. v. Tiebo VII & Ors (2005) 9 NWLR (Pt. 931) 439 where Oguntade, JSC, explained –
“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”.
In this case, there is not an iota of evidence to support the Respondent’s claim for N10m as cost of the action or the N2m as legal costs of the action that was awarded to her by the lower Court. Apart from the bare claim in her pleadings, she made no mention of any legal fees in her Written Statement on Oath, and her mother, PW1, did not allude or refer to any such claim in her testimony. The issue of its discretion does not arise because there was nothing before the lower Court on which it could exercise its discretion to grant N2m as legal fees. In any event, an appellate Court can interfere with the exercise of its discretion where it is NOT exercised in accordance to law or it was exercised in a perverse manner – see Osakwe v. FGN (2004) 14 NWLR (Pt. 893) 305 Likita v. C.O.P. (2002) 11 NWLR (Pt. 777) 145 Atiku v. The State (2002) 4 NWLR (Pt. 757) 265. In this case, the Respondent did not make out her claim for costs of the action, which had to be proved strictly, and the lower Court definitely erred when it awarded her N2m as legal fees with no evidence from her to back the claim. This issue is resolved in favour of the Appellant and against the Respondent.
We come to the issue of whether the lower Court was right to award her the Naira equivalent of CD$1,67O for expenses. The lower Court found that –
“The [Respondent] did incur unexpected and inadvertent emergency expenses related to her need to secure accommodation in Canada in harrowing circumstances”.
The Appellant’s contention is that the lower Court awarded the Respondent a relief or claim that was not asked for, and it referred us to the case of Ndika v. Chiejina (2003) 1 NWLR (Pt. 802) 451 at 458,where the Court held as follows –
“A Court of law has no power to award to a claimant what he did not claim or more than what he asked for. In the instant case, the relief granted to the respondent by the trial Judge was more than what he asked for. However, an appellate court is not precluded from modifying the award to bring it in time with the relief sought if it can be done’. (see page 15 of the Appellant’s brief)
And NDIC v. S.B.N. Plc. (2003) 1 NWLR (pt. 801) 311 where it was held that –
“A court has no power to make an order or grant relief which has not been asked for. A Court may award less but not more than what the parties claimed. The Court should never award what was not claimed. This is so because a Court is not a charitable institution, its duty in civil cases is to render to everyone according to his proven claims. This is based on the principle of adjudication that a party must be given opportunity to answer the claim against him and if need be to resist the claim”.
Citing Summit Fin. Co. Ltd v. Iron Baba & Sons Ltd (2003) 17 NWLR (pt. 849) 89, it submitted that she only claimed for a refund of the cost of her flight ticket; she is only entitled to a refund of the cost of the unused part of the ticket; she did not claim for a refund of the cost of accommodation and the Court cannot give what she is not entitled to receive contractually. Also that a Court cannot make contracts for parties; that its duty is to interpret the agreement of the parties according to their expressed intentions; where parties have entered into a contract, such a contract is governed by its terms and conditions, and a Court must enforce their rights and obligations of the parties in accordance with the terms of the contract; and a Court is not permitted to go outside the contract or make a new contract for the parties, citing Omega Bank (Nig.) Plc. v. OBC Ltd. (2005) 8 NWLR (pt. 928) 457, Arjay Ltd. v. AMS Ltd (2003) 7 NWLR (Pt. 820) 577 and Larmie v. DPMS Ltd. (2005) 18 NWLR (pt. 958) 438 at 442.
The Respondent did not address this issue in her brief but I will quickly say that the Issue will have to be resolved in her favour. The law is settled that once a breach of contract is established, damages flow. General damages are losses that flow naturally from the adversary; it is generally presumed by law “as it need not be pleaded or proved” – see UBN Ltd. v. Odusote Bookshop (1995) 9 NWLR (Pt.421) 558 and Cameroon Airlines v. Otutuizu (supra), where the Supreme Court per Adekeye, JSC, reiterated the position of the law –
“In awarding damages in an action founded on breach of contract, the rules to be applied is restitution in integrum that is, in so far as the damages are not too remote, the plaintiff shall be restored as for as money can do it, to the position in which he would have been if the breach had not occurred”.
In other words, the basic object of an award of damages is to compensate the Plaintiff for the damage, loss or injury he has suffered. The guiding principle is restitutio in integrum [i.e. returning everything to the state as it was before]”. The principle envisages that a party who has been damnified by the act, which is called in question, must be put in the position in which he would have been if he had not suffered the wrong for which he is now being compensated – see NEPA v. Alli (1992) 8 NWLR (Pt. 259) 279. In this case, the Respondent, who testified as PW2, narrated what she went through after she was kicked out of the airport in Canada in paragraphs 22-32 of her written statement on oath –
22. I was in a state of shock as a result of the [Appellant] official’s action and I had to call my parents again to inform them of my predicament.
23. My parents immediately took steps to make an alternative preparation for me because I had vacated the School hostel accommodation I had at Columbia International College where I under took my foundation course.
24. My parents called the International Student Administrator at Columbia International School one Miss Priscilla Tamako, to enable me secure an alternate accommodation because it was an awkward time of the night at about 00.20hrs EasternTime.
25. The said Mrs. Priscilla Tamako immediately sent an alarm mail to the students at Columbia International College and also copied my parents. [Admitted as Exhibit D]
26. My parents also called the Nigerian office of the [Appellant] but it was in the early hours of the morning at about 05.30hrs Nigerian Local Time, there was nobody to pick the call and/or attend to my parents.
27. When there was no response from the school my parents directed me to proceed back to Hamilton, Ontario, Canada to secure accommodation in a serviced apartment where my parents usually lodged anytime they visit Canada, which is about 1 hour 30 minutes’ drive from the airport.
28. I had to make a part payment in the sum of CD$400.00 to enable me obtain this alternative accommodation.
29.1 suffered considerable embarrassment and emotional distress as o result of the [Appellant] when they forced me out of Pearson International Airport, Canada.
30. I was physically assaulted by the security operatives of the [Appellant] when they forced me out of Pearson International Airport, Canada.
31. I incurred the following expense as a result of the [Appellant]’s act;
Transportation to the Airport- CD$70
Transportation bock to town from the airport- CD$100
Accommodation in Canada from the 22/12/2008 To 3/1/2009 13 days @ CD$100 per night – CD$1,400
Costs of re-entry visa-CD$100
32. I was denied the privilege of celebrating the Christmas and New Year seasons with the members of my family in Nigeria as a result of the actions of the [Appellant].
Her Mother, PW1, attested to exactly the same facts in paragraphs XIX to XXIX of her Written Statement on Oath. DW1, the Appellant’s witness merely said –
10. Emirates was not the cause of any embarrassment whatsoever as the incident was self-inflicted by the [Respondent] who could not present a valid ticket to enable her embark on the said journey.
11. It is not true that the [Respondent] was physically assaulted by the [Appellant]’s security operatives or anybody at all.
12. If any costs were incurred by the [Respondent], they were at best self-inflicted as the [Respondent] did not produce on demand, a valid ticket to enable her embark on the said journey.
The question of the incident being self-inflicted by the Respondent or not does not arise at all because the Appellant is liable for denying her boarding, and since it is settled law that once breach of contract is established damages flow, it follows that it must compensate her by repaying the expenses she incurred. She was denied an opportunity of spending Christmas with her family at home; she took a taxi from the airport; and had to make alternative arrangements to enable her stay in Canada. The Appellant has not disputed any of these facts, and she does not have to prove anything to be awarded this sort of damages. The long and short of it is that the award complained against will be affirmed.
As to the last issue, the Appellant’s issue 6 and the Respondent’s Issue 5, the Appellant submitted that that the lower Court erred when it awarded post Judgment interest at 21% per annum whereas the Respondent asked for 10%. It adopted its earlier arguments in Issue 4, set out above, and submitted that the court cannot make an award higher than what was claimed by a party.
The Respondent, cited Diamond Bank v. P.I.C. Ltd. (2004) 18 NWLR (pt. 1172) 67 SC U.L.G.C. v. Inwang (supra), and argued that it did not challenge the interest claimed at the lower Court; and that where an appellant fails to challenge such a Claim, it should not be allowed to be raised before this Court. We were urged to strike out ground 7 of the Notice of Appeal and arguments thereon for being an issue raised by the Appellant without seeking the leave of court, citing Petgas Res Ltd. v. Mbaneto (2007) 6 NWLR (pt. 1031) 545.
The Respondent’s objection to this issue totally lacks merit; it appears that she misunderstood the Appellant’ complaint, which is that the lower Court awarded the said interest at 21%, over and above 10% that she had asked for. So, it is not complaining about the post judgment interest itself but against the fact that the lower Court awarded a higher rate of interest than she asked for – these are two different things. The Respondent had claimed as follows –
Interest on the above stated sums at the rate of 21% per annum from 23/12/2008 till judgment is given and thereafter at the rate of 10% per annum till final liquidation.
The lower court awarded her – “interest at 21% per annum from the date of Judgment till date of final liquidation”, and the Appellant’s contention is that it erred because a Court cannot make an award higher than what was claimed. But the Respondent also argued that a trial court has jurisdiction to award such interest at its discretion, as in this case, and that this Court is enjoined not to interfere by substituting the discretion exercised by the trial judge with ours, where a trial Court has judiciously and judicially exercised its discretion.
Once again, the issue of discretion or no discretion does not arise in the circumstances of this case. It is settled law that “a Court may award less and not more than what the parties have claimed” – see Abenga v. Benue State Judicial Service Commission (2005) All FWLR (pt. 321) 1327, African Petroleum v. Aborisade & Anor (2013) LPELR-20362(CA), where Mbaba, JCA, held that –
“It is the law that a Court is barred from making an award or granting a relief, outside what was claimed in the pleadings and proved by evidence at trial. This is because, being regulated by laws and principles relating to pleadings, and due to the need to be disciplined, predictable and add on evidence before it, the Court cannot afford to stray to play the comic role of a “father Christmas” who doles out gifts, unsolicited, to whoever he delights to please”.
In this case, the Respondent asked for the said interest at the rate of 10%, and the lower Court awarded her the interest at the rate of 21%, which is higher than what she had asked for, and that award will not be allowed to stand.
At the end of the day, the only awards made by the lower Court that will not be set aside are “N100,212.68 to cover the return leg of a failed contract” and the “Naira equivalent of CD$1,670 for expenses incurred as a result of the [Respondent] being prevented from boarding her flight back to her Country”.
In the final analysis, this appeal is allowed in part. The award of N10m in general damages and N2m in legal fees made by the lower Court is set aside. The award of N100,212.60 and the Naira equivalent of CD$1,670 are affirmed. The interest rate awarded by the lower Court is set aside, and in its place I do hereby enter an interest rate of 10% per annum till date of final liquidation.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I was privileged to read in draft the exhaustive and painstaking judgment of my learned brother, Amina Adamu Augie, J.C.A., (Hon. P.J.), with which I fully agree and adopt as my judgment with nothing useful to add.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother Amino Adamu Augie, JCA. His lordship engaged in a thorough and in depth consideration of all the issues in contention and I entirely agree with the reasoning and conclusions reached therein. But just to add by way of emphasis that if a party to a contract is in breach of its terms the other party is entitled to bring an action for damages so as to be placed in the same financial position as if the contractual terms had been duly carried out. In other words, damages are recoverable by the injured party if the loss may be reasonably considered to arise naturally. See HADLEY v. BAXENDALE (1854) 9 EXCH 341; OLAGUNJU v. RAJI (1986) 5 NWLR (Pt. 42) 408 and S B N PLC v. OPANUBI (2004) 15 NWLR (Pt. 896) 437.
In the instant case, the act of the appellant in refusing the respondent her right under the contract of carriage, to board its flight from Canada to Nigeria in spite of the fact that she booked and obtained a confirmed return ticket and for which first leg she had duly utilized constitutes a breach for which reasonable restitution should be made.
More so that it invited security officials to forcefully remove the respondent at the point she was to board the flight after having gone through all the necessary security and airline checks without regard to what befalls her thereafter is very unfair. The Respondent was then forced to incur further expenses as a result of that unfortunate event. These were detailed by the Respondent’s evidence which was not challenged as follows:
Transportation to the Airport- CD$70
Transportation back to town form the airport- CD$100
Accommodation in Canada from the 22/12/2008 to 3-1-2009 13 days @ CD$100 per night- CD$1,400
Cost of re-entry visa-CD$100
To my mind, the above expenses including the amount for the flight ticket to cover the return leg of the journey reasonably flow from the denial of a passenger in a foreign land the right to board a flight she had duly paid for and it deserve to be awarded as damages arising from the breach of the contract of carriage. For this and the fuller reasons detailed in the lead judgment, I too allow this appeal in part and I abide by the consequential orders made therein.
Appearances
Ike Nwachukwu, Esq.For Appellant
AND
M. Bamidele, Esq. and Oladipo Osinowo, Esq.For Respondent
