HARKA AIR SERVICES(NIG.) LIMITED .V. EMEKA KEAZOR ESQ.

HARKA AIR SERVICES(NIG.) LIMITED .V. EMEKA KEAZOR ESQ.

(2011) LCN/3776(SC)

In the Supreme Court of Nigeria

Friday, June 17, 2011


Case Number: SC.262/2005

 

JUSTICES:

WALTER SAMUEL NKANU ONNOGHEN, JUSTICE, SUPREME COURT

FRANCIS FEDODE TABAI, JUSTICE, SUPREME COURT

JOHN AFOLABI FABIYI , JUSTICE, SUPREME COURT

OLUFUNLOLA OYELOLA ADEKEYE, JUSTICE, SUPREME COURT

BODE RHODES-VIVOUR, JUSTICE, SUPREME COURT

 

BETWEEN

 

APPELLANT:

HARKA AIR SERVICES (NIG.) LIMITED

 

RESPONDENT:

EMEKA KEAZOR ESQ

 

RATIO:

APPEAL:

Attitude of the Supreme Court to concurrent findings of facts of two lower courts:

“I agree with the concurrent findings of the two lower courts and I find their conclusion in this matter, that the appellant is guilty of willful misconduct impeccable. Concurrent findings of fact of both the trial court and the Court of Appeal would not be disturbed by the Supreme Court except there are cogent and compelling reasons shown to justify disturbing the findings of fact, such as, where the findings cannot be supported by evidence or are perverse, patently erroneous where there is a miscarriage of justice or not the result of a proper exercise of judicial discretion. Ogbu v. Wokoma (2005) 7SC (pt.11) pg.123. Alakija v. Abdulai (1998) 5 SC 1. Uka v. Irolo (2002)7 SC (pt.11) pg.97. Okonkwo v. Okonkwo (1998) 10 NWLR (pt.571) pg.554 Atolagbe v. Shorun (1985) 1 NWLR (pt.2) pg.360 Ncar v. Adegboye (1985) 2 NWLR (pt.8) pg.453 Abidoye v. Alawode (2001) 3 SC 1 pg.9 Ojomu v. Ajao (1983) 9 SC Pg.22” Per ADEKEYE, J.S.C.

APPEAL:

REPLY BRIEF: When reply brief is necessary and the important contents of a reply brief:

“The appellate courts had in many decided cases laid emphasis on when a reply brief is necessary and what it should address. A reply brief is filed when an issue of law or argument raised in the respondent’s brief usually by way of a preliminary objection calls for a reply. Where a reply brief is necessary, it should be limited to answering any new points arising from the respondent’s brief. Although the filing of a reply brief by an appellant is not mandatory, where a respondent’s brief raises issues or points of law not covered in the appellant’s brief, an appellant ought to file a reply as failure to file one without an oral reply to the points raised in the respondent’s brief may amount to a concession of the points of law or issues raised in the respondent’s brief. It is not proper to use a reply brief to extend the scope of the appellant’s brief or raise issues not dealt with in the respondent’s brief. A reply brief is not meant to have a second bite of the cherry, which is exactly the purpose of the appellant’s reply brief in this appeal. Since the appellant used the reply brief to extend the scope of his argument and submission in the two issues raised for determination, it is utterly irrelevant to this appeal. Olafisoye v. FRM (2004) 4 NWLR (pt.864) PG.580. Popoola v. Adeyemo (1992) 8 NWLR (pt.257) pg.1. Longe v. F.B.N. Plc. (2010) 6 NWLR (pt.1189) pg.1. Shuabu v. Mailodu (1993) 3 NWLR (pt.284) pg.748.” Per ADEKEYE, J.S.C

 AVIATION LAW:

Provisions of Warsaw Convention on  Air Carrier’s liability in an aircraft accident

“By virtue of Article 17 of the Warsaw Convention, the Carrier is liable for the damages sustained in the event of the death or wounding of a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. To establish liability, the claimant must prove that: (a) the passenger must have been wounded or suffered bodily injury (b) the injury must have arisen from the accident (c) the accident must have occurred on board the aircraft or during the course of embarking or disembarking. Article 22 makes provision for the limitation of the liability of the carrier for each passenger and for registered baggage and cargo. It reads- (1) In the carriage of passengers, the liability of the carrier for each passenger is limited to the sum of 125,000 francs. Where in accordance with the law of the courts seised of the case, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 125,000 francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability. (2) In the carriage of registered luggage and of goods, the liability of the carrier to the sum of 250 francs per kilogram unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case, the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that the sum is greater than the actual value to the consignor at delivery. (3) As regards objects of which the passenger takes charge himself, the liability of the carrier is limited to 5000 francs per passenger. (a) The sums mentioned above shall be deemed to refer to the French franc consisting of 65 % milligrams gold of millesimal fineness 900. The sums may be converted into any national currency in round figures. Article 25 stipulates that – (1) The carrier shall not be entitled to avail himself of the provisions of this convention, which exclude or limit his liability, if the damage is caused by his willful misconduct or by such default on his part as in accordance with the law of the court seised of the case, is considered to be equivalent to willful misconduct. (2) Similarly, the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment. By virtue of Article 25 (1), 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 liability of the carrier are not applicable.” Per ADEKEYE, J.S.C.

AVIATION LAW:

Definition of an aircraft accident:

“Under the Aviation Law, an aircraft accident is an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked in which (a) a person suffers a fatal or serious injury as a result of being in the aircraft, Annex 13 to the Chicago Convention, dealing with Aircraft Accident and Incident Investigation. The Civil Aviation (Investigation of Accidents) Regulation 2 (1) (d), Regulation (2) (1) Civil Aviation (Investigation of Air accidents and Incidents) regulations U.K. Statutory Instrument No.2798, 1996.” Per ADEKEYE, J.S.C

DAMAGES:

When  it  can be said that damages awarded against a carrier is at large:

“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. See Goldman V. Thai Airways International Limited (1983)3 ALL ER 693.” Per FABIYI, J.S.C.

 

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C. (Delivering the Judgment  by the Court): In the writ of summons issued at the Federal High Court Lagos, Emeka Keazor as plaintiff, claimed against the defendant, Harka Air Services Nigeria limited as follows:

1) The sum of $5,000,000.00 (Five Million United States Dollars) being compensation and damages arising from the lost luggages and personal effects and injuries sustained by the plaintiff on board the defendants aircraft which crash landed in Lagos on the 24th day of June, 1995.

2) Interest at the rate of 21 % from the 24th day of June 1995 until judgment and thereafter at the rate of 10% per annum until final payment.

In the twelve paragraph of his statement of claim filed on the 1st of February 1996, the plaintiff pleaded his

Particulars of Special Damage

Loss of checked in luggage $5,000

Loss of baggage carried $2,000

Filing fees $1,000

Expenses incurred up to filing action $30,000

Total $38,000

The background facts of this case are that on the 24th of January 1995, the plaintiff now respondent in the instant appeal, boarded Harka Air Services Limited on its flight No.TU134 from Kaduna to Lagos. There was bad weather at the point of embarkation as a result of which all other commercial Airlines cancelled their flight and there was none operating two hours before the defendants flight took off. The flight to Lagos was turbulent. The descent in Lagos was irregular, as the air craft finally crash-landed. This was followed by a smoke and fire outbreak in the cabin which caused panic and confusion as passengers scampered for safety. The plaintiff/respondent had a traumatic experience, coupled with sustaining injuries and body pain. He lost his hand luggage and personal effects. The serious nature of the injuries required medical attention. He suffered loss professionally and financially as the injuries curtailed his day to day activities. As the plaintiff/respondent was convinced that the crash was due to the negligence, careless and recklessness of the defendant / appellant, its servants, agents and employees in maintaining, controlling and operating the said aircraft on the fateful day, he wrote to the defendant / appellant for compensation. As his claim was unheeded, he filed an action at the Federal High Court, Lagos.

At the trial before the Federal High Court, the plaintiff called two witnesses, himself and one of the air accident investigators. In his considered judgment, the learned trial judge found in favour of the plaintiff and awarded N1,257,840.00 (one million, two hundred and fifty-seven thousand, eight hundred and forty Naira) as special and general damages as well as costs of the action. Being aggrieved by the decision of the trial court, the defendant / appellant appealed to the Court of Appeal, Lagos. In the judgment delivered on the 17th of March 2005, the Court of Appeal allowed the appeal in part having found that there was sufficient evidence of willful misconduct on the part of the appellant, it found that the trial court was in error to have awarded damages in naira when it was specifically pleaded in US Dollars. The lower court awarded $11,000 US Dollars as an appropriate compensation for general damages; the claim for special damages failed and was set aside. The appellant made a further appeal to this court based on the Notice of Appeal dated the 21st of March 2005.

Parties exchanged briefs and when the appeal was heard on the 21st of March 2011, the appellant in the appellants brief filed on 6/2/06 distilled two issues for determination as follows:

1) Whether the learned justices of the Court of Appeal were right in affirming the decision of the trial court by holding that the appellant (defendant) was guilty of willful misconduct as provided in Article 25 of the Warsaw Convention of 1929.

2) Whether the learned justices of the Court of Appeal were entitled to award a sum of $11,000 (eleven thousand Dollars) as general damages in favour of the respondent.

In the respondents brief deemed filed on the 14/10/09, the respondent adopted the two issues raised by the appellant for determination in this appeal.

The appellant filed a Reply brief on 11/11/09 adopted and relied on same in the argument of this appeal. The appellant in the brief made further submission on the two issues for determination in the appeal. The appellate courts had in many decided cases laid emphasis on when a reply brief is necessary and what it should address. A reply brief is filed when an issue of law or argument raised in the respondents brief usually by way of a preliminary objection calls for a reply. Where a reply brief is necessary, it should be limited to answering any new points arising from the respondents brief. Although the filing of a reply brief by an appellant is not mandatory, where a respondents brief raises issues or points of law not covered in the appellants brief, an appellant ought to file a reply as failure to file one without an oral reply to the points raised in the respondents brief may amount to a concession of the points of law or issues raised in the respondents brief. It is not proper to use a reply brief to extend the scope of the appellants brief or raise issues not dealt with in the respondents brief. A reply brief is not meant to have a second bite of the cherry, which is exactly the purpose of the appellants reply brief in this appeal. Since the appellant used the reply brief to extend the scope of his argument and submission in the two issues raised for determination, it is utterly irrelevant to this appeal.

Olafisoye v. FRM (2004) 4 NWLR (pt.864) PG.580.

Popoola v. Adeyemo (1992) 8 NWLR (pt.2S7) pg.1.

Longe v. F.B.N. Plc. (2010) 6 NWLR (pt.1189) pg.1.

Shuabu v. Mailodu (1993) 3 NWLR (pt.284) pg.748.

Issue One

Whether the learned justices of the Court of Appeal were right in affirming the decision of the trial court by holding that the appellant was guilty of willful misconduct as provided in Article 25 of the Warsaw Convention of1929.

The appellant submitted on this issue that the relevant statute applicable to the respondent’s claim at the trial court is the provision of the Carriage by Air (Non International) Colonies, Protectorates and Trust Territories Order of 1953 which incorporated the terms and conditions of the Warsaw Convention of 1929 are Articles 22 (1) and 25 of the Warsaw Convention. By virtue of Article 25 of the Warsaw Convention, the appellant was entitled to rely on the limitation of its liability except the respondent was able to prove that the damages he suffered was caused by the willful misconduct of the appellant or its agents acting within the scope of their employment. The act or omission must also be shown to have been done with knowledge that damage would probably result. Thus where a pilot did not know that damage would probably result from his omission, the court is not entitled to attribute to him knowledge which another pilot might have possessed or which he himself possessed.

Oshevire v. British Caledonian Air Ltd (1990) 7 NWLR (pt.163) pg.507.

The appellant adopted the definition of Willful Misconduct as portrayed in the English case of Horabin v. BOAC (1952) 2 All ER (pg.1006). The appellant contended that willful misconduct in the definition combined the act or omission to act as well as the mental element. Such definition is not pleaded in the Respondents Statement of Claim at pages 12-15 of the record of appeal. Willful misconduct was only incorporated by way of particulars and the learned justices of the Court of Appeal were wrong in holding that willful misconduct was pleaded. The appellant concluded that the evidence led by the respondent and PW2 was clearly at variance with the facts pleaded in paragraph 10 of the Statement of claim and relates to facts not pleaded and such evidence goes to no issue. No evidence was led at the trial to prove the particulars of the averments in paragraph 10 of the Statement of Claim. Paragraph 10 of the statement of claim is deemed abandoned. The learned justices have no evidence to support their finding of willful misconduct. Paragraph 11 of the statement of claim and evidence of PW2 at pages 132 and 138 of the record before the trial court show that investigation into the air crash have not been completed. The evidence of the two witnesses for the respondent does not prove willful misconduct it at best proves negligence or carelessness on the part of the appellant. The two lower courts have no justification to hold that the appellant was guilty of willful misconduct. The court is urged to resolve this issue in favour of the appellant.

The respondent replied that the lower court in its judgment considered the provision of Article 25 of the Warsaw Convention. Once the court can make a finding of willful misconduct, damages are at large. The lower court adopted the definition of willful misconduct in the case of Goldman v. Thai Airways International Limited (1983) 3 All ER pg.693. The lower court therefore expatiated on when knowledge would be imputed. The lower court made concurrent findings of fact with the trial court that the appellant was guilty of willful misconduct. The respondent explained that what is before this court is the concurrent findings of fact by the trial court and the Court of Appeal, which should not be disturbed by this court unless there are cogent and compelling reasons shown to justify interfering with these findings of fact. The respondent cited the cases of

Ogbu v. Wokoma (2005) 7 SC (pt.11) pg.123.

Oleke v. Agbodiye (1999) 12 SC (pt.11) pg.101.

Ibenye v. Agwu (1998) 9-10 SC pg.18.

Alakija v. Abdulai (1998) 5 SC 1.

The appellant has also not shown that the findings of fact of the two lower courts are perverse, patently erroneous or not the result of a proper exercise of judicial discretion. He cited the cases of

Abidoye . Alawode (2001) 3 SC pg.1 at pg.9.

Lokoyi  v. Olojo (1983) 8 SC pg.61 at pg.68.

Ojomu v. Ajao (1983) 9 SC pg.22 at pg.53.

The respondent defined a perverse decision as stated in decided cases of this honourable court like

Uka v. Irolo (2002) 7 SC (pt.11) pg.97 at pg.108.

State v. Ajie (2000) 7 SC (pt.1) pg.24.

Misr v. Ibrahim (197S) 5SC pg.55.

Incar Ltd. v. Adegboye (1985) 2 NWLR (pt.8) pg.453.

Ramonu Atolugbe v. Shorun (1985) 1 NWLR (pt.2) I NWLR (pt.2) pg.360;

(1985) 4 SC (pt.lI) 250 at pg.282.

As this court has no reason to interfere with the findings of fact of the two lower courts. The respondent urged the court to resolve this issue against the appellant.

I have given due consideration to the submission of both parties on this issue. The substance of the submission of the appellant is that the evidence of the respondent and his witness did not prove willful misconduct; all it can at best establish is negligence or carelessness in the absence of conclusive investigation into the air crash according to the evidence of PW2. In the cases of Oshevire v. British Caledonian Air Ltd. (1990) 7 NWLR (pt.163)  pg.507 and Horebin v. BOAC (1952) 2 All ER pg. 1006, the definition of willful misconduct comprise of the act as well as the mental element. The averments in the statement of claim of the respondent at pages 12-15 of the record of appeal do not reflect the definition. Willful misconduct came into the pleadings by way of the particulars. The respondent justified the lower courts finding of willful misconduct based on the case of Goldman v. Thai Airways International Limited (1983) 3 All ER pg.693. Since there was finding of willful misconduct, issue of damages is left at large. The two lower courts believed the averments in the pleadings and the oral evidence led by the two witnesses of the respondent as to the accident and the resultant effect on the respondent. It is however apt to examine the position of the law and the definition of willful misconduct relied upon by the two lower courts in their respective findings of fact. The salient facts not disputed are that the respondent boarded the appellants plane from Kaduna which crash landed in Lagos and the facts revealed by PW2, a member of the investigation panel into the accident in the Interim Report. The learned trial judge aptly described this at pages 178-180 of the record that  ‘There is unchallenged, uncontradicted and credible evidence in this matter uncontradicted that the defendant operated its flight on the 24th day of June 1995 from Kaduna to Lagos when other Airlines refused to do so and cancelled their flights. It is also on record that it rained on the morning of the 24th day of June 1995. The ill-fated aircraft was not given any clearance to land at all by the Air Traffic Controller when it reached the threshold the aircraft involved herein was a 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. The interim report of the investigation was sub-poened and it is part of the record in this suit. It has also been shown by credible evidence that at the time this aircraft came in contact with the runway, it had already passed more than 60% of the total runway distance. According to the evidence of PW2, it was impossible to make a safe landing with the type of approach made by the ill-fated aircraft. I am therefore absolutely satisfied that the defendant herein is guilty of willful misconduct as provided in Art. 25. I am fully satisfied that the pilot being a servant of the defendant had knowledge that damage, death or injury were probable result from the way he handled this ill-fated aircraft. I therefore so hold.’

The lower court held that the respondents statement of claim particularly paragraphs 10 (a) -(r) have graphically spelt out the particulars of willful misconduct which evidence the trial court described as unchallenged, uncontradicted and credible. The lower court supported the foregoing with cases-

Adejumo v. Ayantegbe (1989) 3 NWLR (PT.110) PG. 417.

F.C.D.A. v. Noibi (1990) 3 NWLR (pt.138) pg.270.

Obimiami Block & Stone (Nig.) Ltd. v. A.C.B. Ltd. (1992) 2 NWLR (pt. 229)

Under the Aviation Law, an aircraft accident is an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked in which (a) a person suffers a fatal or serious injury as a result of being in the aircraft, Annex 13 to the Chicago Convention, dealing with Aircraft Accident and Incident Investigation. The Civil Aviation (Investigation of Accidents) Regulation 2 (1) (d). Regulation (2) (1) Civil Aviation (Investigation of Air accidents and Incidents) regulations U.K. Statutory Instrument No.2798, 1996.

There are laws regulating the liability of the carrier to its passengers. An airlines 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 operations.

Section 48 of the Civil Aviation Act 2006.

Warsaw Convention 1929

Montreal Convention 1999

The Warsaw Convention 1929 which is applicable and relevant to the instant appeal was domesticated as a Nigerian law by the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 Vol. XI Laws of the Federation 1958, as amended by the Hague Protocol. It is still part of the existing law in Nigeria pursuant to Section 315 of the 1999 Constitution as it has not been repealed by any law or rendered invalid or incompetent by any court of competent jurisdiction. In the case of Ibidapo v. Lufthansa (1997) 4 NWLR (pt.498) pg.149 at paragraph H, the Supreme Court per Wali JSC (as he then was) said:

‘An important International convention like the Warsaw Convention cannot be said to be impliedly repealed when the country is still taking advantage of its provision and has not promulgated similar enactment to replace it. The convention is so important to this country both domestically and internationally to be avoided. A vacuum of such magnitude cannot be tolerated in our legal system. It is a notorious fact that all air travelling tickets, whether domestic or international contain notices alluding to the provision of the Warsaw Convention being referred to in this case as the 1953 Order. The 1953 Order can certainly be taken judicial notice of under Section 74 (1) (a) of the Evidence Act (Cap 112) Laws of the federation of Nigeria.

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.

Cameroon Airlines v. Abdulkareem (2003) 11 NWLR (pt.830) pg.1

EI AI Israel Airlines Ltd. v. Tseng 919 F. Supp 155 S.D. N.Y. 1996

Sidhu v. British Airways (1997) 1 All ER pg.193

Air France v. Saks 105 S.Ct. 1338 470 U.S., 392 84 L.Ed 2d 289 (1985).

I shall now refer to and consider the relevant and appropriate provisions of the Warsaw Convention as amended by the Hague Protocol.

By virtue of Article 17 of the Warsaw Convention, the Carrier is liable for the damages sustained in the event of the death or wounding of a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. To establish liability, the claimant must prove that

(a) the passenger must have been wounded or  suffered bodily  injury

(b) the injury must have arisen from the accident

(c) the accident must have occurred on board the aircraft or during the course of embarking or disembarking.

Article 22 makes provision for the limitation of the liability of the carrier for each passenger and for registered baggage and cargo. It  reads:

(1) In the carriage of passengers, the liability of the carrier for each passenger is limited to the sum of 125,000 franc.

Where in accordance with the law of the courts seised of the case, damages may be awarded in the form of periodical payments shall not exceed 125,000 francs.

Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.

(2) In the carriage of registered luggage and of goods, the liability of the     carrier to the sum of 250 francs per kilogram unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case, the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that the sum is greater than the actual value to the consignor at delivery.

(3) As regards objects of which the passenger takes charge himself, the liability of the carrier is limited to 5000 francs per passenger.

(4) The sums mentioned above shall be deemed to refer to the French franc consisting of 65 ½milligrams gold of millesimal fineness 900. The sums may be converted into any national currency in round figures.

Article 25 stipulates that:

(1) The carrier shall not be entitled to avail himself of the provisions of this convention, which exclude or limit his liability, if the damage is caused by his willful misconduct or by such default on his part as in accordance with the law of the court seised of the case, is considered to be equivalent to willful misconduct.

(2) Similarly, the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment.

By virtue of Article 25 (1), 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 liability of the carrier are not applicable. For the definition of willful misconduct, the two lower courts relied on the definition in the case of Horabin v. BOAC (1952) 2 All ER (1006) as follows:

‘Misconduct is misconduct which the will is a party and it is wholly different from mere negligence or carelessness, however gross that negligence or carelessness may be to be guilty of willful misconduct, the person concerned must appreciate that he is acting wrongfully, or is wrongfully omitting to act, and yet  persists in so acting or omitting to act regardless of the, consequences, or acts or omits to act with reckless indifference as to what the result may be, all the problems must be evidence in the light of that definition.”

The lower court cited and relied upon the case of Goldman v. Thai Airways International Limited (1983) 3 All ER 693 where willful misconduct was amplified as follows:

‘For damage awarded against the carrier to be at large in accordance with the provision of Article 25 of the Convention …… it is not sufficient for the act or omission that is relied on to have been done recklessly, it must be shown to have been done with knowledge that damage would probably result. Thus where a pilot did not know that damage would probably result from his omissions, the court is not entitled to attribute to him knowledge which another pilot might have possessed or which he himself should have possessed.’

Oshevire v. British Caledonian Airways Ltd (1990) 7 NWLR (pt 163) pg.507

The trial court referred to the unchallenged, uncontradicted and credible evidence establishing the willful misconduct on the fateful day as follows –

(1) The airline operated its flight when other airlines cancelled their flight due to bad weather.

(2) The defendants air craft was not given clearance to land when it reached the threshold, as it was at a height above normal and regular.

(3) The pilot did not respond to the Air Traffic Controller whether he was landing or carrying out a missed approach.

The Interim Report of Investigation tendered by PW2 under subpoena show that:

(1) As at the time the aircraft hit the runaway, it had passed more than 60% of the entire runway -which made it impossible for it to make a safe landing.

The trial judge concluded that the pilot as a servant of the appellant had knowledge that damage, death or injury were probable to result from the way he handled the ill-fated aircraft.

The lower court held that:

‘The probability of the result must be as qualifying the nature of the act and if the nature of the act is to make the damage probable, provided the concurrent circumstances for impact or damage are there, then the probability of damages is fulfilled.”

Knowledge would be imputed where the nature of the damage would ordinarily flow the reckless conduct of the pilot. In other words, from the foregoing prevailing circumstances and especially the pleadings of the respondent having been culminated by the evidence thereon, it is glaring without  more that the learned trial judge was right in holding that the defendant / appellant was guilty of misconduct as provided in Section 25 of the Warsaw Convention 1929.

In the surrounding circumstances of this case -I agree with the concurrent findings of the two lower courts and I find their conclusion in this matter, that the appellant is guilty of willful misconduct impeccable. Concurrent findings of fact of both the trial court and the Court of Appeal would not be disturbed by the Supreme Court  except there are cogent and compelling reasons shown to justify disturbing the fin9ings of fact, such as, where the findings cannot be supported by evidence or are perverse, patently erroneous where there is a miscarriage of justice or not the result of a proper exercise of judicial discretion.

Ogbu v. Wokoma (2005) 7SC (pt.11) pg.123.

Alakija v. Abdulai (1998) 5 SC 1.

Uka v. lralo (2002) 7 SC (pt.11) pg.97.

Okonkwo v. Okonkwo (1998) 10 NWLR (pt.571) pg.554

Atolagbe v. Shorun (1985) 1 NWLR (pt.2) pg.360

ncar v. Adegboye (1985) 2 NWLR (pt.8) pg.453

Abidoye v. Alawode (2001) 3 SC 1 pg.9

Ojomu v. Ajao (1983) 9 SC pg.22

I resolve Issue One in favour of the respondent.

Issue Two

Whether the learned justices of the Court of Appeal were entitled to award a sum of $11 ,000 (Eleven Thousand Dollars) as general damages in favour of the respondent.

The appellant submitted that the lower court in allowing the appellants appeal in part set aside the award of special and general damages in Naira made by the trial court in favour of the respondent. The award of $11 ,000 awarded by the court of appeal in favour of the respondent as general damages tantamount to a variation of the judgment of the trial court in the absence of a cross-appeal or respondents notice tantamount to a court granting a relief not sought by the plaintiff/respondent. The appellant submitted further that while it is not in dispute that a court can award judgment in foreign currency, the bone of contention in this appeal is whether it can award judgment in foreign currency when the contract, the subject-matter of the suit is in Naira (the Nigerian Local Currency) and the evidence in support of the claim. The lower court invoked Section 15 of the Court of Appeal Act CapC36 Laws of the Federation of Nigeria 2004 which only empowers the Court of Appeal to make an order which the trial court could not have made in resolving the controversy between the parties in a particular case. The Warsaw Convention 1929 has no provision for the award of damages in dollars. The award of $11,000 Dollars is not only arbitrary but also unsupported by the evidence adduced at the trial court. The case of Saeby Jernstoberi M.F.A. A/S v. Olaogun Enterprises Ltd. (1999) 14 NWLR (pt.637) pg.128 relied upon by the lower court is not only distinguishable from this suit but also inapplicable. This court is urged to set aside the award of $11,000 as general damages in favour of the respondent.

The respondent by way of Reply submitted that the Court of Appeal is empowered to give appropriate relief on the hearing of an appeal without being restricted by the relief specifically sought in the notice of appeal provided that they are necessary for the final determination of the appeal before it. By the combined effect of Order 3 Rule 23 Court of Appeal Rules 2002 applicable at the time of the hearing of the appeal and Section 16, now 15 of the Court of Appeal Act, the court is empowered to substitute the orders of the lower court with its own orders, if such an order was one that it considers the lower court would have rightly made and if it is one that the justice of the case requires. The Court of Appeal does not require filing of a cross-appeal or a respondents Notice. The respondent referred to cases

Mogaji v. Military Administrator of Ekiti State (1988) 2 NWLR (pt.538) pg.425.

Bunyan v. Akingboye (1999) 5 SC (pt.11) pg.91 at 99.

A-G Bendel State v. Aideyan (1989) 4 NWLR (pt.118) pg.646.

ACB v. Apugo (2001) 2 SC pg.215.

C.G.G. (Nigeria) Ltd. v. Ogu (2005) 2 SC (pt.11) pg.50.

Onuaguluchi v. Ndu (2001) 3 SC 48.

The court is urged to resolve this issue in favour of the respondent and dismiss the appeal.

I have to commence my reasoning in this issue by laying emphasis on the notorious fact that the award of damages is essentially the duty of a trial court and will not be interfered with except unless certain circumstances exist:-

  1. Where the trial court acted under a misapprehension of facts or law
  2. Where it failed to take into account relevant matter
  3. Where the amount awarded is too low or too high
  4. Where failure to interfere would amount to injustice.

Ogunkoya v. Peters (1954) 14 WACA 504

Agaba v. Otubusin (1961) 2 SCNLR 13

Bala v. Bankole (1986) 3 NWLR (pt. 27) pg. 141

 

COUNSELS

Rotimi Seriki Esq for the Appellant

John Duru Esq. for the Respondent.

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