British Airways V. Mr. P. O. Atoyebi (2014)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal Lagos Division delivered on 22/6/2010 affirming the judgment of the Federal High Court, Lagos delivered on 2/4/2008.

The brief facts that gave rise to this appeal are as follows: The respondent, a Senior Advocate of Nigeria, was a first class passenger on the appellant’s flight from London Heathrow Airport on Sunday 7th May 2000, arriving in Lagos in the early hours of Monday 8th May 2000. At the boarding gate in London, on 7th May 2000, the respondent was informed by a staff member of the appellant that one of the pieces of hand baggage he intended to take onto the flight was too bulky and in excess of the weight allowed for hand luggage. He relinquished the bag to the appellant’s staff to be checked into the aircraft’s hold. It was duly tagged and the respondent was given the appropriate baggage tag. Upon his arrival in Lagos in the morning of 8th May, his bag did not arrive with the flight. He returned to the airport twice a day between 8th and 10th May but his bag did not arrive, even though he had been informed that the bag had been traced at the airport in London and would be sent to Lagos without delay. Notwithstanding the fact that he gave written authority to his personal assistant in London to collect the bag, the appellant refused to release the bag to him and insisted that it would be brought to Lagos. It failed to do so. Having declined to state the contents of the bag because it contained valuables and cash, when it failed to arrive, he was advised to travel back to London to collect it personally. On 10th May, 2000 the respondent travelled back to London with a business class ticket to collect his bag. He was met on arrival by a member of staff of the plaintiff who took him to a large room containing many unshipped bags belonging to Nigerians. He found his bag intact.

As a result of the actions of the appellant, the respondent wrote a letter to it dated 11/5/2000, seeking compensation for the manner in which he was treated and the resultant losses incurred by him. The appellant eventually responded by a letter dated 25/8/2000 wherein it offered the respondent the sum of E508.48. Being utterly dissatisfied with the offer, he instituted an action against the appellant before the Federal High Court Lagos (the trial court) by a writ of summons filed on 6/5/2002. By paragraph 22 of his Further Amended Statement of Claim dated 13/7/2005 at page 127 of the record, he claimed as follows:

“By reason of the Defendant’s incompetence, deliberate act and/or act of negligence the plaintiff has been put to a lot of financial losses, travel stresses, loss of professional time, etc.

PARTICULARS OF LOSSES

a. Cost of One Way First Class Ticket to Lagos 7 May 2000 US$ 1,500

b. 2 return club class ticket to London of 10 May 2000 US$ 3,950

c. One night stay in London hotel, etc 225

d. Taxi costs (Airport, London, etc) for Plaintiff/Assistants E115

e. Phones, Faxes to & fro U.K. – Lagos, etc E73

f. Loss of professional time for travelling to the U.K. @ E150/hr E6,600

g. Damages for stress and inconvenience of travelling E100,000

Total: (a) = US$ 5,450

(b) = E107,013

Whereof the plaintiff claims these sums together with interests at the rate of 25% per annum from 8 May, 2000 until judgment and costs”.

At the trial the respondent testified on his own behalf and did not call any other witness. The appellant called one witness. It denied liability and contended that the respondent’s claims are not cognizable under the provisions of the Warsaw Convention.

At the conclusion of trial judgment was entered in favour of the respondent. An appeal to the Court of Appeal, Lagos Division (the lower court) was unsuccessful. Still dissatisfied the appellant has appealed to this court vide its Amended Notice of Appeal filed on 31/12/2010 pursuant to an order of this court granted the same day. The Amended Notice of Appeal contains 2 grounds of appeal. The two grounds shorn of their particulars are:

A. The learned Justices of the Court of Appeal erred in law when they agreed with and thus upheld the decision of the trial court on assessment of damages and thereby dismissed the appeal of the appellant.

B. The Learned Justices of the Court of Appeal erred in law when they failed to pronounce on the exclusivity of the Warsaw Convention 1929 when they upheld the judgment of the trial court appealed against.

The parties duly filed and exchanged their respective briefs of argument. At the hearing of the appeal on 17/3/2014, S.A. AKOREDE LAWAL ESQ. adopted and relied on the appellant’s brief settled by OTUNBA YOMI OSHIKOYA, dated and filed on 24/5/2012. He also adopted and relied on the appellant’s reply brief filed on 9/11/2012. In adumbration of the arguments canvassed in his brief, he submitted that the appellant’s main contention is that the respondent’s case was brought under the common law instead of under the Warsaw Convention of 1929, which has been domesticated in Nigeria under The Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953 (hereinafter referred to as the CAO). He submitted that under the CAO there are three possible causes of action available to a passenger. He submitted that the relevant article for this case is Article 19, while the remedy is provided for in Article 22 (2). He also referred to Articles 24 and 25 of the Order in support of the submission that no matter how the action is framed, it must comply with the provisions of the Warsaw Convention. He urged the court to allow the appeal.

FEMI ATOYEBI, SAN, the respondent in this appeal, appeared in person. He adopted and relied on his respondent’s brief filed on 4/7/2012. In further expatiation of his brief he pointed out that contrary to the appellant’s contention that the action was founded on common law, both lower courts found that the action was based on the Warsaw Convention. He submitted that there was abundant evidence of wilful misconduct by the appellant, which defeats their right to a defence under Article 19 of the CAO. He urged the court to uphold the concurrent judgments of the two lower courts and dismiss the appeal. He informed the court that he was prepared to waive the claim for interest on the judgment debt.

In reply on points of law, Mr. Akorede-Lawal submitted that the appellant’s contention is that the concurrent findings of the two lower courts amount to a nullity, as there is no cause of action. He submitted that where there is no cause of action, the issue of wilful misconduct could not arise.

The appellant distilled a single issue for the determination of the appeal, which was adopted by the respondent. It reads:

Whether or not the learned Justices of the Court of Appeal were right in affirming the judgment of the lower court in respect of assessment of damages and exclusivity of the Warsaw Convention 1929.

In support of the sole issue for determination, learned counsel for the appellant submitted that the relationship between the parties is that of carrier and passenger. He submitted that the contract between the parties is a special contract of international carriage by air of passenger, baggage and/or goods. He submitted that the applicable law is the Warsaw Convention 1929 which has been domesticated in Nigeria vide Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 (CAO) contained in Vol. II 1958 Laws of the Federation. He submitted that this position has been confirmed by the Supreme Court in Ibidapo V. Lufthansa Airlines (1997) 4 NWLR (Pt.498) 124.

Learned counsel contended that the Warsaw Convention 1929 and the CAO provide the passenger’s exclusive cause of action and sole remedy against an air carrier in respect of injury, loss, damage or delay in the carriage of passengers or delivery of baggage and goods in the course of or arising out of international carriage. He referred to: Sidhu V. British Airways (1997) 1 All ER 193 or 1 AC 430. He also referred to Article 1 of the Order. He submitted that Articles 17, 18 and 19 of the CAO provide causes of action in respect of (i) injuries to passenger or death; (ii) damage to checked baggage or goods and (iii) damage occasioned by delay in the transportation by air of passengers, baggage or goods respectively. He submitted that the respondent’s claim as endorsed on his further amended statement of claim is a claim that could only be considered at common law not having been formulated with the provisions of the CAO in mind. He did however concede that the claim could be considered within the purview of Article 19.

He submitted that the gravamen of the respondent’s claim is that his baggage, which ought to have been delivered to him in Lagos when he arrived on 8th May 2000, was delivered to him on 10th May 2000. He contended that the delivery was within the number of days allowed airlines to deliver passengers’ baggage. He further contended that as at the date when the respondent decided to collect his bag in London the appellant was not in breach of the General Conditions of Carriage. He argued that since the respondent travelled of his own volition to collect his bag, even though he had been informed that it would be delivered on the 10th of May, the appellant was not liable for the delay.

Alternatively, he submitted that if the respondent’s claim is merely for the delay in delivering his checked baggage, the remedy available to him is as provided for in Article 19 of the CAO. He submitted that Article 19 must be read in conjunction with Article 24, which provides:

“In cases covered by Articles 18 and 19 any action for damages however founded can only be brought subject to the conditions and limits set out in this convention”.

He reiterated his contention that the respondent’s case was founded on breach of contract under the common law and not as required under the Convention. He submitted that notwithstanding the way the respondent’s claim is couched, if the head of claim does not fall within the contemplation of the Convention, the action is bound to be dismissed. He relied on the authority of: Oparaji V. Virgin Atlantic Airlines Ltd. (2006) WL 2708034 (E.D.N.Y.) September 19, 2005 wherein the plaintiff’s claims were based on delay. He noted that although the claims were within the scope of Article 19, they were dismissed because of his decision to secure substitute travel and not because of any action on the part of the carrier in delaying him. He submitted that the claim for damages as asserted by the respondent is wrong and misleading as there is no legal authority that moral damages should apply to any baggage claim. He submitted that mental anguish is only recoverable where there is bodily injury. He referred to: Morris V. KLM Royal Dutch Airlines: King V. Bristow Helicopters Ltd. (2002) ALL ER (D) 394 (Feb.) (2002) UKHL 7. He maintained that the claim for E100,000.00 and the entire heads of claim are founded on inconvenience and are therefore not sustainable or recoverable in law.

He submitted further that the respondent could only establish a cause of action under Article 19 and that the damages recoverable are strictly as provided in Article 22 (2). He submitted that although the lower court rightly identified the applicable law, it came to a wrong conclusion by affirming the remedies granted to the respondent under the common law governing breach of contract and tort of negligence. He referred to Sidhu V. British Airways (supra) @ 454.

He submitted that all the claims asserted in paragraph 22 of the further amended statement of claim under particulars of losses do not contain any claim in respect of delay but rather that it contains heads of claim which the courts, in applying Article 19 of the Convention, have universally held not to be recoverable in a claim based squarely on delay.

He submitted that this court in the case of: Harka Air Services Nig. Ltd. V. Emeka Keazor (2011) 12 NWLR (Pt.1264) 320, upheld the exclusivity of the Warsaw Convention to matters between an airline and its passengers.

He submitted that the application of common law to this case by the lower court led to a wrong assessment of the damages recoverable by the respondent and thus the court erroneously affirmed the decision of the trial court. He submitted that the finding of the lower court that the award of general damages in the sum of N3 million was neither too high nor too low is at variance with the provisions of Article 22 (2). Relying on the decision of this court in Harka Air Services Nig. Ltd. V. Emeka Keazor (supra) and the case of: Horabin V. British Overseas Airways Corporation (1952) 2 ALL ER 1016 @ 1020 B – D per Barry, J., he submitted that a party alleging wilful misconduct must prove it with probative facts and evidence. He maintained that the respondent failed to plead or prove wilful misconduct on the part of the appellant or any of its agents, which would entitle him to make a claim for a higher amount than that provided for under Article 22 (2). He submitted that it is only if and when a passenger or consignor, at the time of handing over his baggage to the carrier, has made a special declaration of the value or it is proved that the carrier is guilty of wilful misconduct that the carrier will not be able to take advantage of the limited liability provided for under the Convention. He referred to Articles 22 (2) and 25.

In reference to the finding of the lower court to the effect that the award of general damages is within the discretion of the court, learned counsel submitted that the finding cannot be supported having regard to the provisions of Articles 19, 22 (2), 23, 24 and 25 of the Convention. He maintained that the award of damages in matters governed by the CAO is not subject to the discretion of the trial judge, unless the respondent is able to break the ceiling of the limit of liability of the appellant by pleading and proving by probative evidence that the appellant is guilty of wilful misconduct.

In reply to the above submissions, the respondent, P.O. ATOYEBI, SAN agreed that the claim is governed by the CAO. He submitted that both lower courts considered and applied the provisions of the Order to determine the rights and liabilities of the parties. He submitted that what the lower court decided was that having regard to the provisions of Article 25, the appellant could not avail itself of the provisions of the Order to limit its liability because it is not entitled to any defence thereunder. He referred to relevant portions of the judgments of the two lower courts in support of this submission.

He contended that the evidence showed that the appellant was clearly negligent and/or guilty of wilful misconduct towards the respondent in the performance of its duties to him under the contract of carriage. For what constitutes negligence he relied on: Odinaka V. Moghalu (1992) 4 NWLR (Pt.233) 1 15 E; Makwe V. Nwukor (2001) FWLR (Pt.62) 1 @ 16 C – G. He submitted that all efforts by the respondent to retrieve his bag and the resultant cost and inconvenience are the direct consequences of the appellant’s negligence. He referred to paragraphs 21 & 22 of the further amended statement of claim where negligence was specifically pleaded. He argued that the refusal of the appellant to put the respondent’s bag on the next available flight despite having located it in London was a deliberate act by the appellant and/or its staff, which borders on reckless indifference towards the respondent. He referred to: Harka Air Services (Nig.) Ltd V. Emeka Keazor (supra) @ 364 C per Rhodes-Vivour, JSC for what constitutes wilful misconduct. He submitted that not only did the respondent plead wilful/intentional or deliberate misconduct; there was ample evidence on record in support thereof. He urged the court to discountenance the submissions of learned counsel for the appellant in this regard. He submitted that the foreign authorities of: Horabin V. British Overseas Airways Corp. (supra) and Rusten Platinum Mines Ltd. Vs South African Airways (1977) Lloyd’s Rep. 564 @ 569 relied upon by the appellant in fact support the respondent’s case. He contended further that in any event, by virtue of Article 25, what would amount to wilful misconduct is to be determined in accordance with the law of the court seised of the matter, which in the instant case is Nigerian law.

Learned Senior Counsel submitted that from all the actions of the appellant and/or its agents in London, the only conclusion a reasonable man could draw is that the appellant is guilty of gross wilful misconduct in the handling of the respondent’s hand baggage. He submitted that the appellant’s right to exclude or limit its liability is taken away if the damage is caused by its wilful misconduct or by such default on its part as, in. accordance with the law of the court seised of the case, is considered to be the equivalent of wilful misconduct. He submitted that where, as in this case, both the trial court and the lower court made findings of wilful misconduct against the appellant, damages are left at large. He referred to: Harka Air Services (Nig.) Ltd. V. Emeka Keazor Esq. (supra) at 350 G – H. He referred to Article 25 and submitted that appellant’s case is for damage occasioned by delay in the carriage of his luggage by air and therefore cognisable under Article 19. He submitted that all the cases cited by the appellant are distinguishable from the facts of this case and therefore irrelevant, as they relate to either injury to passengers carried by air or loss of their luggage.

He contended that having sufficiently demonstrated that the appellant was not entitled to exclude or limit its liability under the Order, the lower court was at liberty and was right to award such special and general damages as the common law recognises, in favour of the respondent. He referred to items (a) – (f) under paragraph 22 of the further amended statement of claim, for special damages totalling US$5,450 and E7,013 and submitted that the claims were specifically pleaded and proved by the respondent. He submitted that the claim for E100,000.00 is a claim in damages for stress and inconvenience. He contended that the respondent had testified at the trial that a similar award was made by the appellant in favour of one Victoria Beckham, a white, British lady and wife of the famous football star, David Beckham who, as a first class passenger lost her luggage while flying from the United States to London. He noted that she was paid compensation of E100,000.00 and given a number of complimentary first class tickets to any destination of her choice worldwide. He noted further that certified true copies of British newspaper reports of this fact were tendered and admitted as Exhibits 14 and 15 without objection from the appellant.

On the factors to be considered by the court in the award of general damages, learned Senior Counsel referred to the case of: U.A.C. (Nig.) V. Irole (2001) 5 NWLR (pt.707) 583 @ 599 B – E; Odiba v. Azege (1998) 9 NWLR (Pt.566) 370 @ 382 D – E & 388 C – E. He maintained that the award of general damages in addition to the special damages is justified in the circumstances of this case. He submitted that general damages are, by their nature, what the law would presume to be the direct, natural and probable consequence of the act complained of. He submitted that unlike special damages, general damages need not be strictly proved. He referred to: Unipetrol V. Adireje (W.A.) Ltd. (2005) 14 NWLR (Pt.946) 563 @ 632 – 633; Watts V. Morrow (1991) 1 WLR 1421. He submitted that having regard to the evidence of the alleged compensation to Mrs. Victoria Beckham in the sum of E100,000.00 in addition to a number of first class complimentary tickets, which evidence was neither challenged nor controverted, it was reasonable to presume that the respondent, a respected citizen of Nigeria and a learned Senior Advocate of Nigeria, should receive the same treatment. He urged the court to follow the standard adopted by the appellant itself in dealing with its British first class passenger and uphold the award of general damages.

In his reply brief, learned counsel for the appellant submitted that the respondent made out a case of negligence and not wilful misconduct in his pleadings. He submitted that the respondent is bound by his pleading and reliance on any evidence led in respect of wilful misconduct would be wrong in law and should be expunged from the record. He cited the case of: Ehang & Ors. V. Adu & Ors. (1981) N.S.C.C. 453 @ 459 per Nnamani, JSC. He contended that the arguments in respondent’s brief deal mainly with negligence. He submitted further that the respondent had a duty to plead particulars of the wilful misconduct, which he failed to do. He relied on: Oyedele V. I.U.T.H. (1990) 6 NWLR (Pt. 155) 194 @ 199; George & Ors. V. Dominion Flour Mills Ltd. (1963) 1 ANCR 70 @ 76.

In conclusion, learned counsel submitted that the concurrent findings of the two lower courts are based on wrong principles of law and cannot stand. He urged this court to interfere and correct the anomaly. He referred to Harka Air Services (Nig.) Ltd. V. Emeka Keazor Esq. (supra) at 350 G – H, and urged the court to allow the appeal.

It is the contention of the appellant herein that the two lower courts failed to pronounce on the exclusivity of the provisions of the Warsaw Convention to the relationship between the parties and that both courts erroneously considered the case from the perspective of common law principles. It was settled as far back as 1997 in the case of Ibidapo V. Lufthansa Airlines (1997) 4 NWLR (Pt.498) 124 that the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 (the CAO), which domesticated the Warsaw Convention of 1929 in Nigeria, not having been repealed or declared invalid, is an existing law within the meaning of Section 274 (1) of the 1979 Constitution (now Section 315 (1) of the 1999 Constitution as amended). On the duty of Nigerian courts to continue to apply rules of international law, Wali, JSC at page 150 A-B (supra) stated thus;

“Nigeria, like any other Commonwealth country inherited the English common law rules governing the municipal application of international law. The practice of our courts on the subject matter is still in the process of being developed and the courts will continue to apply the rules of international law provided they are found to be not over-ridden by clear rules of our domestic law. Nigeria, as part of the international community, for the sake of political and economic stability, cannot afford to live in isolation. It shall continue to adhere to, respect and enforce both the multilateral and bilateral agreements where their provisions are not in conflict with our fundamental law”

Article 1 (1) of the CAO provides:

“Article 1:

(1) This Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.”

There is no doubt therefore that the relationship between the parties being that of international carrier and passenger is governed by the CAO.

It is also correct, as submitted by learned counsel for the appellant that Articles 17, 18 (1) and 19 of the Order provide exclusive causes of action for a passenger to the exclusion of any other law. The Articles provide as follows:

“Article 17:

The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place during the carriage by air.

Article 18 (1):

The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, any registered luggage or any goods, if the occurrence which caused the damage so sustained took place during the carriage by air.

Article 19:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods.”

Learned counsel for the appellant has argued that the respondent’s action before the trial court was not brought in contemplation of the provisions of the CAO but under common law principles. He however concedes that the suit could be considered under Article 19. In paragraph 22 of his further amended statement of claim, the respondent sought special and general damages on the following ground:

“By reason of the defendant’s incompetence, deliberate act and/or act of negligence, the plaintiff has been put to a lot of financial losses, travel stresses, loss of professional time, etc.”

(Emphasis mine)

The claim is clearly premised on loss and inconvenience suffered by him occasioned by the delay in the carriage of his luggage by the appellant. The claim is therefore cognisable under Article 19 as conceded by the appellant. The issue in contention is: what is the respondent’s remedy in the circumstances Articles 22, 24 and 25 of the CAO are instructive in this regard. For ease of reference, the relevant provisions are reproduced hereunder:

“Article 22

(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 is limited to a 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)…

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

Article 24:

(1) In cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.

(2) ….

Article 25:

(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 wilful 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 wilful 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.”

(Underlining mine for emphasis)

While it is the contention of the appellant that the respondent is only entitled to the remedy provided in Article 22 (2) and that Article 24 circumscribes the respondent’s right to make any claim for damages outside the limitations set by the CAO, it is the respondent’s contention that by virtue of Article 25, the appellant is not entitled to avail itself of the provisions of Article 22 (2) because the default complained of was caused its wilful misconduct.

I must observe at this stage that it would not be correct to say, as contended on behalf of the appellant that the two lower courts failed to pronounce on the exclusivity of the CAO to the contract between the parties. At page 341 lines 37 & 38 – page 342 lines 1 – 3 of the record, the learned trial Judge in the course of his judgment held thus:

“Since both parties agree that the Warsaw Convention is the applicable law, this court will only rely inter alia on the Warsaw Convention to the extent of determining what right if any the parties have vis-a-vis this action. I therefore hold that the applicable law governing this action is the Warsaw Convention.”

The court continued at page 344 lines 25 – 33 of the record held:

“I have read the provisions of the Warsaw Convention and fully appreciated them.

I had earlier said that there is a presumption of negligence on the part of the defendant. I had also said that the defendants were reckless in carrying out their contractual responsibilities towards the plaintiff and therefore Defendant cannot avail themselves of the provisions of the Convention. They are not entitled to any defence. Moreso Art. 19 of the CAO has provided that the carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods” and I so hold.”

The Court of Appeal at page 522 lines 7 – 11 of the record

“In the instant case, it’s rather indisputable that the 1953 Order (supra) domesticating the Warsaw Convention, 1929, as part of the existing law of Nigeria subsists, especially in view of the fact that it has neither been repealed (by any law) nor declared invalid by any court of competent jurisdiction. And I so hold. See Ibidapo V. Lufthansa (supra) at 149 paras. A – B per Wali, JSC.”

The applicability and exclusivity of the CAO is therefore not in doubt. The issue in contention is whether, having regard to the circumstances of this case, the appellant was entitled to limit its liability to the amount provided for in Article 22 (2) thereof. The appellant argues very forcefully that the respondent did not plead or prove wilful misconduct but rather made out a case of negligence.

The respondent on the other hand argues that the appellant’s refusal to put his bag on the next available flight despite having located it was a deliberate act by the appellant and/or its staff and therefore amounts to wilful misconduct.

In the case of: Horabin V. British Airways Corpn. (1952) 2 ALL ER 1016 @ 1020 B – D, the term ‘wilful misconduct’ was explained thus:

“In order to establish wilful misconduct, the plaintiff must satisfy you that the person who did the act knew at the time that he was doing something wrong, and yet did it, notwithstanding, or alternatively, that he did it quite recklessly, not caring whether he was doing the right thing or the wrong thing, quite regardless of the effects of what he was doing on the safety of the aircraft and of the passengers for which and for whom he was responsible… The element of wilfulness is essential in the present case if the plaintiff is to recover more than the E3,000 odd to which he is admittedly entitled.”

(Emphasis supplied)

It is evident from the above that wilful misconduct comprises the act itself and the mental element. Although the claim was in respect of personal injuries and damage to goods sustained by the plaintiff as a result of a plane crash, the principle enunciated in Horabin’s case (supra) with regard to how to determine wilful misconduct is applicable to any claim for damages arising under the provisions of the CAO. The case was cited with approval by this court in the recent case of: Harka Air Services (Nig) Ltd. V. Keazor (2011) 13 NWLR (Pt.1264) 320 @ 342 A: 360 H. His Lordship, Rhodes-Vivour, JSC stated at page 364 C – D:

“Wilful 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 behaviour especially by a professional person amounts to wilful misconduct.”

(Emphasis mine)

I had noted earlier in this judgment that the appellant conceded that the respondent’s case was cognisable under Article 19 of the CAO. I have carefully examined the respondent’s further amended statement of claim at pages 127 – 130 of the record and find paragraphs 10, 11, 12, 13 and 21 particularly relevant to the issue at hand. They are reproduced hereunder for ease of reference:

“10. On the 8th May 2000 when the Defendant confirmed having located the baggage, the Plaintiff sent two of his assistants in London to the Defendant’s offices at Heathrow Airport with authority to collect the baggage, and although they again admitted having found the same, they refused to hand it over to them, insisting that they would ship it on their next flight to Lagos.

11. When on Wednesday, 10 May 2000 the baggage did not arrive, and in view of the importance of its contents which for safety/security reasons he could not disclose at the material time, the Plaintiff purchased another business class return ticket to London from the defendant just to go and pick the said baggage, after he had told the defendant’s manager aforesaid the previous day that that would be his next line of action if the baggage did not arrive by the Wednesday morning flight. The plaintiff will rely on the copy of his said ticket at the trial of this action.
12. Obviously the said had reported the matter to the cabin crew on that flight and the plaintiff was approached by the senior cabin attendant, who in clear acknowledgment of their negligence and deliberate act of incompetence and/or nonchalance voluntarily upgraded the plaintiff to the First Class cabin and got the pilot to radio the ground staff at London Heathrow to meet the plaintiff on arrival later that evening.
13. An official of the defendant duly met the plaintiff at London Heathrow airport and confirmed that the baggage was awaiting his collection. The official later took the plaintiff to their Lost Baggage Room at the airport where he was handed his baggage. Curiously, the baggage was intact and the plaintiff surrendered the original baggage tag in exchange for the baggage. The said official profusely apologised to the plaintiff stating that they had wronged him and advised the plaintiff to put in his claim, which he promised would be dealt with speedily.
14. The plaintiff shall contend at the trial that the defendant’s act of not transporting his baggage to Lagos after the same was located was a deliberate act and/or an act of negligence and/or incompetence of the defendants (sic), its staff and/or agents.

Particulars of negligence:

(a) Fact of collection of the Plaintiffs baggage at the boarding gate;

(b) Fact of non-arrival of the baggage with the flight or at all;

(c) Refusal at the defendant to hand over the baggage to plaintiff’s agents in London in spite of plaintiff’s authorisation;

(d) Refusal to talk to the plaintiff on phone with a view to finding an amicable solution to the matter; and

(e) Fact that the plaintiff had to travel back to the U.K. to pick the baggage when the same was not lost but merely kept by the plaintiff in their Lost Baggage store.”

(Emphasis supplied)

I am of the view that the averments in the paragraphs reproduced above clearly disclose an allegation of wilful misconduct on the part of the appellant. Though described as particulars of negligence, the facts set out in sub-paragraphs (a) to (e) of paragraph 21 are facts tending to illustrate the acts of wilful misconduct allegedly committed by the appellant. The respondent gave copious oral and documentary evidence in support of the above pleadings. The two lower courts, relying on these facts rightly concluded in my view, that having regard to the circumstances of the case, the appellant was not entitled to avail itself of the provisions of the CAO to limit or exclude its liability towards the respondent. I agree with the findings of the two lower courts that the acts of the appellant in this case were reckless and deliberate. It not only failed to deliver the respondent’s checked baggage upon his arrival in Lagos, after several fruitless trips by him to the airport in Lagos over a period of three days on the appellant’s promise that the baggage would arrive, it deliberately refused to deliver the said baggage to his duly authorised agents in London when it was located at their office at Heathrow Airport, and continued to withhold it until the respondent had to travel back to the U.K. to retrieve it at great personal expense. It was clear from the evidence led at the trial that the appellant had no intention of delivering the respondent’s baggage to him in Lagos, having abandoned it at its Lost Baggage store in London. It was on this basis that both courts considered the respondent’s claim for damages. I agree with both courts that in view of the appellant’s acts of wilful misconduct, it was not entitled to restrict or limit its liability to the amount provided for in Article 22 (2) of the CAO. By virtue of Article 25, once wilful misconduct was established, the respondent was entitled to damages.

In the instant case the respondent claimed both special and general damages. The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm, See: Eliochin (Nig.) Ltd. V. Mbadiwe (1986) 1 NWLR (Pt.14) 47 @ 65 per Obaseki, JSC; Odiba V. Azege (1998) 9 NWLR (Pt.566) 370 @ 382 D – E. The rationale behind the compensatory theory for the award of damages is found in the maxim restitutio in integrum. In other words, to restore the injured party to the position he or she was in prior to the injury. See: Shell Petroleum Dev. Co. (Nig.) Ltd. V. High Chief Tiebo VII & Ors, (1996) 4 NWLR (Pt.445) 657 @ 680 D – E: Okongwu V. N.N.P.C. (1989) 4 NWLR (Pt.115) 296; Cameroon Airlines V. Otutuizu (2011) 4 NWLR (Pt.1238) 512.

It is the law that general damages such as the law will presume to be the natural or probable consequence of the defendant’s act need not be specifically pleaded. It arises by inference of law and need not therefore be proved by evidence and may be averred generally. On the, other hand, special damage is such loss as the law will not presume to be the consequence of the defendant’s act but which depends in part, on the special circumstances of the case. Special damages must be specifically pleaded and strictly proved. See: Incar (Nig.) Ltd. V. Benson Transport Ltd. (1975) 3 SC (Reprint) 81; F.B.N. Plc. V. Associated Motors Co. Ltd. (1998) 10 NWLR (Pt.570) 441 @ 465-466 G-C.

The claims listed in paragraph 22 (a) – (f) of the respondent’s further amended statement of claim are as follows:

a. Cost of One Way First Class Ticket to Lagos 7 May 2000 US$ 1,500

b. 2 return club class ticket to London of 10 May 2000 US$ 3,950

c. One night stay in London hotel, etc E225

d. Taxi costs (Airport, London, etc) for Plaintiff/Assistants E115

e. Phones, Faxes to & fro U.K. – Lagos, etc E73

f. Loss of professional time for travelling to the U.K. @ E150/hr E6,600

These claims are in the nature of special damages. It was held in F.B.N. V. Associated Motors Co. Ltd. (supra) at page 466 A – B, that the obligation to particularise a claim for special damages arises, not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible. It seems to me that the claims in subparagraphs (a) – (f) constitute the losses directly incurred by the respondent and flowing from the appellant’s wilful misconduct. In this regard the lower court held at pages 533 – 534 of the record:

“Regarding the special damages, it’s rather evident that the respondent had not only clearly and unequivocally pleaded, but also proved vide credible viva voce evidence the special damages in question. Items A – F for the reliefs for special damages were not only clearly pleaded, but also proved by the respondent at the trial with credible viva voce evidence. The amounts so claimed in reliefs A – F in question were neither challenged nor controverted by the appellant. Thus, it behoves upon this court to deem the said reliefs A – F for special damages as having been admitted by the appellant, and accordingly proved by the respondent.”

This finding to my mind is fully supported by the record. It is unassailable and ought not to be disturbed by this court.

This brings me to the award of E100,000.00 being damages for stress and inconvenience of travelling. This is an award of general damages made in addition to the award of special damages. The Learned Senior Counsel (respondent) reiterated the legal position that general damages are by their nature what the law would presume to be the direct, natural and probable consequence of the act complained of and need not be strictly proved. An award of damages is within the discretionary powers of the court. An appellate court would not usually interfere with a previous award unless satisfied

(a) that that the trial court acted under a mistake of law; or

(b) where the trial court acted in disregard of some principle of law; or

(c) where it acted under a misapprehension of facts; or

(d) where it has taken into account irrelevant matters or failed to take into account relevant matters; or

(e) where injustice would result if the appellate court does not interfere; or

(f) where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damage.

See: Shell Petroleum Devt. Co. Nig. V. Tiebo VII (supra); Shodipo Co. Ltd. V. Daily Times of Nig. Ltd. (1972) 1 ALL NLR (Pt.2) 406; Acme Builders Ltd. V. Kaduna State Water Board (1999) 2 NWLR (Pt.590) 288; Mutual Aids Society V. Akerele (1965) 4 N.S.C.C. 268 @ 272.

The basis upon which the respondent claimed E100,000.00 was that in a case similar to his, the appellant paid the sum of E100,000.00 in addition to a number of complimentary First Class tickets to one Mrs. Victoria Beckam, a white First Class passenger of the airline and wife of a famous international football star, for loss of her baggage on a journey from the United States of America to London. British newspaper reports of the award were tendered and admitted in evidence. It is also the respondent’s contention that as a Senior Advocate of Nigeria and a respected citizen of this country he is entitled to receive nothing less.

In reviewing this aspect of the respondent’s claim, the lower court at page 534 of the record held:

“Unhesitatingly, I agree in toto with the contention of the respondent (sic) (appellant), to the effect that there is no basis at all for comparing Mrs. Beckham with the respondent. Indisputably, no evidence was adduced regarding the status of Mrs. Beckham, save the reference thereto as a wife of a popular international football star.

Contrariwise, however, the Respondent is not only a member of the foremost honourable profession on the planet Earth, the legal profession, but also a senior silk, a Senior Advocate of Nigeria (SAN) which is pari passu with a Queen’s Counsel (Q.C.) of the United Kingdom.”

I agree entirely with the lower court that there was no evidence adduced regarding the status of Mrs. Beckham. There was also no evidence of the peculiar circumstances of her claim to make it at par with the respondent’s case. The evidence tendered by the respondent showed that her baggage was lost entirely while the respondent’s baggage was eventually recovered intact. Furthermore the court could not speculate on whether the said Mrs. Beckham had made any prior declaration of the value of her baggage at the time of delivering it to the appellant as provided for in Article 22 (2). While it is the law that general damages need not be proved but are presumed to be the natural consequence of the act complained of, I am however unable to agree with the view that in the circumstances of this case the respondent was entitled to an award of E100,000,00 general damages in addition to the award of special damages. It is conceded that the learned Senior Counsel is a respected citizen of this country and a Senior Advocate of Nigeria. With due respect to the Learned Silk, I am of the humble view that he has been fully compensated under subparagraphs (a) – (f) for the wilful misconduct of the appellant. The law is that a person who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another head. See: Tsokwa Motors (Nig.) Ltd. v. U.B.A. Plc (2008) 2 NWLR (pt. 1071) 347; Artra Industries (Nig.) Ltd. v. N.B.C.I. (1998) 4 NWLR (pt. 546) 357; Arisons Trading & Eng. Co. Ltd. v. Military Governor, Ogun State & Ors. (2009) 15 NWLR (pt. 1163) 26. The award of an additional E100,000.00 for stress and inconvenience in travelling, is, in my respectful view, not only manifestly too high but clearly amounts to double compensation. In the circumstances I hold that sufficient reasons have been shown to warrant interference with the concurrent findings of the two lower courts in respect of this head of claim in order to prevent an injustice.

In conclusion the appeal succeeds in part. The judgment of the lower court affirming the judgment of the trial court in terms of paragraph 22 (a) – (f) of the further amended statement of claim in the sum of US$5,450 and E7,013 pounds sterling respectively is hereby affirmed. The award of E100,000.00 as general damages is hereby set aside. It is hereby reiterated that at the hearing of the appeal on 17/3/2014 the respondent agreed to waive the claim for interest on the judgment sum. Costs follow the event. As the appeal succeeds in part, the parties shall bear their respective costs.

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SC.332/2010