Harka Air Services (Nigeria) Ltd. V. Emeka Keazor Esq. (2005)
LawGlobal-Hub Lead Judgment Report
OGUNBIYI, J.C.A.
In a writ of summon dated 9th November, 1995 and statement of claim dated 1st February, 1996 the plaintiff now respondent claimed against the defendant now appellant the sum of $5,000,000 (five million United States Dollars) being compensation and damages arising from lost luggages and personal effects and injuries sustained by the plaintiff on board the defendant’s aircraft which crash landed in Lagos on the 24th day of June, 1995. In addition to this the plaintiff further claimed interest at the rate of 21% from the said 24th day of June, 1995, until judgment and thereafter at the rate of 10% per annum until final payment.
Upon an order of the lower court for pleadings on the 29th January, 1996, the plaintiff filed a 14 paragraphs statement of claim dated 1st February, 1996, and which same was duly served on the defendant on the 2nd day of February, 1996. The defendant on its part did not see it necessary to file any statement of defence.
Due to a number of interlocutory applications the trial in the matter could not have been earlier but eventually commenced on the 8th day of July, 1997.
The facts of this case succinctly put are largely not in dispute. However and on an account of brevity, on or about the 24th June, 1995, the plaintiff, a legal practitioner was a passenger transported on board the defendant’s aircraft a TU 134 Russian built aircraft which was on a domestic flight from Kaduna to Lagos. On the said date and while the plaintiff was being so transported, the defendant’s airplane was involved in a crash wherefore it violently hit the tarmac and caught fire at the airport Ikeja, Lagos. As a result of this accident, the plaintiff claimed he sustained injuries and lost some of his personal effects.
To prove his claim and the averments contained in the statement of claim the plaintiff called two witnesses, himself inclusive, while the 2nd witness was one of the air accident investigators who were officially charged with the responsibility of investigating the cause of the air crash.
At the conclusion of the trial, the learned trial Judge entered judgment in favour of the plaintiff/respondent against the defendant/appellant for a cumulative sum of N1,257,840.00 (One million, two hundred and fifty-seven thousand, eight hundred and forty naira) being special and general damages as well as costs of the action. The judgment of the Federal High Court, Lagos per A.A.B. Gumel Judge is contained at pages 163 to 183 of the record of proceedings.
Being dissatisfied with the aforesaid decision, the defendant/appellant now known as appellant subsequently appealed against same vide notice of appeal dated 17th of August, 1998 and contained at pages 189 to 191 of the record of proceedings. With the leave of this court sought and obtained, the notice of appeal was amended on the 4th and filed on the 5th November, 2002. Ten grounds of appeal with nine predicated on error in Law and one on misdirection were filed and from which the appellant distilled eight issues for determination which are as follows:-
1) Whether the learned trial Judge was entitled to enter judgment in favour of the plaintiff against the defendant for special and general damages in naira (Nigerian currency) when the plaintiffs claim for damages was in United States dollars?
2) Whether the learned trial Judge was entitled to award general damages in favour of plaintiff against the defendant when the plaintiff’s claim was predicated on a breach of contract of carriage by air?
3) Whether the learned trial Judge was right in awarding a sum of N80,000.00 (Eighty thousand naira) in favour of the plaintiff for pain and suffering?
4) Whether the learned trial Judge was right in awarding a sum of N15,000.00 (Fifteen thousand naira) for the loss of the plaintiff’s hand, luggage and a sum of N157,840.00 (One hundred and fifty seven thousand, eight hundred and forty naira) for medical bills incurred by the plaintiff as special damages?
5) Whether the learned trial Judge was right in admitting exhibits B, C, D, D1, D2 and D3 in evidence?
6) Whether the learned trial Judge was right in holding that the defendant was guilty of willful misconduct as provided in article 25 of the Warsaw convention of 1929 and consequently holding that the plaintiff is entitled to claim damages outside the limit of 125,000 francs as set out in article 22 of the Warsaw convention of 1929?
7) Whether the learned trial Judge was entitled to rely on the contents of interim report of investigators produced by PW2 in court on the basis of a subpoena, even though same was not tendered as an exhibit?
8) Whether the learned trial judge was right in view of the evidence before the court, in holding that there was proof that the plaintiff was confined to a hospital bed for at least 21 days?
From the said ten grounds of appeal, the respondent on his perception formulated two issues for determination as follows:-
1) Whether the lower court was correct in its assessment of special and general damages in respect of the claims of the plaintiff/respondent which was predicated on a contract of carriage by air?
2) Whether the learned trial judge was right in holding that the defendant was guilty of willful misconduct as provided in Article 25 of the Warsaw convention of 1929?
Deducing from the issues as formulated by both parties, it is apparent that the cumulative analysis of same are two fold as per the reduction by the respondent. In other words, there are too many proliferation of issues by the appellant which same can conveniently be condensed into two and the reason which I do adopt the formulation by the respondent as acceptable. It follows therefore that while the appellant’s issues 1, 2, 3, 4, 5, 7 and 8 relating to proof can conveniently be accommodated under respondents issue 1, the issue no. 6 is synonymous to no. 2 as formulated by the respondent. It is on this predication therefore that this appeal would be considered.
The determinant factor on the 1st issue is the propriety or not of the assessment of special and general damages of the respondent’s claim which was predicated on a contract of carriage by air. The appellant to substantiate its 1st issue heavily relied upon the respondents’ statement of claim wherein the claim was in the United States Dollars and the nature of the relief the counsel argued should not be in any other currency. A number of authorities cited in support are:
Aghadiuno v. Onubogu (1998) 5 NWLR (Pt. 548) P g. 16 at 41; Fekpenyong & Ors. v. Nyong & Ors (1975) 2 SC pg 71 at 80 – 81 Military Governor of Ondo State v. Ajayi (1998) 3 NWLR p 27 at 55. That the learned trial judge in the circumstance had no jurisdiction to award the respondent damages in Naira (Nigerian Currency).
The appellant’s argument in respect of his second issue was an extensive in dwelt on the respondent’s writ of summons, Statement of Claim and also the judgment of the trial court where the lower court in particular found as a fact that the respondent’s claim was an action based on a contract of carriage between the appellant which the respondent’s counsel argued that same was regulated by the provisions of the Carriage by Air (non-international) (colonies, protectorates and trust territories) Order of 1953. That 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 contemplation of both parties at the time they made the contract as the probable result of the breach of it. Learned counsel in support of his submission cited the authorities in the cases of PZ & Co. v. Ogedengbe (1972) 1 All NLR (Pt. 1) p. 202 at 205, and Kyaure Construction Ltd. v. Agbana (1998) 2 NWLR (Pt. 539) p.581 at 589 – 590. Counsel submitted that the award of general damages by the learned trial Judge was erroneous as it did not take into consideration the guiding principles on measure of damages for breach of contract. That the general damages awarded in the suit herein did not arise naturally from the breach of the 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.
In citing the authority of M. D. C. N. v. System Informatix Ltd. (1998) 12 NWLR (Pt. 577) p. 258 at 268 the learned counsel stressed the trite law nature where the categorization of damages into general and special compartments does not apply in an action for breach of contract as a measure of damages in such a situation which would not give room for classification of damages into special or general.
That it is also trite law that in an action founded on contract, where the court has awarded damages for actual loss under various specific heads, no further sum can be awarded as general damages as same would amount to double compensation. A further authority cited was the case of Edun v. Provost LACOED (1998) 13 NWLR (Pt. 580) pg. 52 at 69. That award of general damages was improper where the quantum of loss was certain and once a party had been fully compensated for the loss or harm suffered by him, it should not be open to the court to proceed to award him any other kind of additional damages that may look like a bonus. The authorities in support are: Soetan & Anr v. Ogunwo (1975) NSCC vol. 9 p.360 and Adodo v. Ismaila (1998) 11 NWLR (Pt. 573) p. 214 at 225. That with the quantum of the respondent’s loss being certain, the award of general damages was improper in the circumstance as same amounted to double compensation.
On the 3rd issue, the learned counsel submitted the trite law that a court should not grant a relief not claimed. The authority in support was the case of Ekpenyong & Ors. v. Nyong & Ors. (1975) 2 SC. p. 71 at 80 – 81. That in the absence of the respondent’s failure to claim damages for pain and suffering, the learned trial Judge was not entitled to award same in his favour. In order words that the award of damages for pain and suffering in favour of the respondent was not justifiable.
On the 4th issue for determination the learned counsel referred to the respondent’s statement of claim and submitted that the claim for special damages awarded was not specifically pleaded. That with reference to the award of damage in naira for the loss of the respondent’s hand luggage for example, same, learned counsel argued was arbitrary in the absence of any evidence adduced by the respondent with regards to the value or cost of the lost hand luggage.
Similarly, that there was no specific pleading of the medical bills or expenses incurred by the respondent on the account of the treatment of injuries sustained as a result of the plane crash. That the proof of such special damage has not been strictly done and consequent to which the learned trial Judge ought to have dismissed the respondent’s claim for special damages in its entirety in the absence of any evidence to prove same. In support, the learned counsel cited the authority in the case of Sommer v. FHA (1992) 1 NWLR (Pt.219) p. 548 at 561.
On the fifth issue for determination, the appellant again referred to the respondent’s statement of claim and exhibits B, C, D, D1, D2 and D3 and on the totality submitted that exhibits D, D1, D2 and D3 were clearly at variance with the facts pleaded in the statement of claim and therefore go to no issue. The learned counsel in support cited the authority in the case of National Investment and Properties Company Ltd. v. Thompson Organisation Lid. & Ors. (1969) 1 NMLR p. 99. That with the exhibits being hospital bills for medical expenses in Naira, they were clearly at variance with the respondent’s claim for damages in United States dollars and which are consequently inadmissible. The learned counsel also relied on the provision of section 91(1) of the Evidence Act Cap. 112 Laws of the Federation of Nigeria, and submitted that the respondent ought to have either called the makers of the said exhibits to testify as witnesses or in the alternative ought to have laid proper foundation to have brought the documents within the proviso contained in section 91(1) of the Evidence Act before same could have been admissible as evidence.
That in the absence of the required condition, the documents were inadmissible and ought not to have been admitted by the lower court.
The learned counsel also cited a number of authorities to distinguish between admissibility of evidence including documents and the weight to be attached to such evidence. That it is only after evidence was admitted that the court could proceed to ascribe probative value to same. A number of authorities in support are:- Abidoye v. Alawode (1994) 6 NWLR (Pt. 349) P.242 at 254; A.-G., Oyo State v. Fairlakes Hotels Ltd. (No.2) (1989) 5 NWLR (Pt. 121) 255; and Motanya v. Elinwa (1994) 7 NWLR (Pt. 356) p. 252 at 260. A further authority on probative value was the provision of section 92(1) of the Evidence Act. That by admitting exhibit on the basis of its probative value,
the learned trial Judge put the cart before the horse. In other words, in the absence of proper foundation laid for the admissibility of exhibit C, same ought to have been expunged from the court’s record as it was inadmissible.
On the 7th issue for determination the learned appellant’s counsel submitted that even though the preliminary or interim report of the accident was produced by PW2 in court, same was never tendered as an exhibit. That if a document was not admitted in evidence as an exhibit it could not form part of the evidence properly so before the court and therefore cannot use the document as evidence. The authority in support is the case of Hausa v. State (1994) 6 NWLR (Pt. 350) p. 281. That since the said document was not tendered in evidence, the learned trial Judge was clearly in error to have placed reliance on same in his judgment.
On the eighth issue for determination, heavy reliance was placed on exhibits B & C being the Eko Hospitals Plc. Medical bill and the report respectively. That while exhibit C stated the respondent’s hospitalization for three weeks (21 days), exhibit B clearly showed that he was on hospital admission from the 24th of June, 1995 to the 5th July, 1995, a period of 11 days. The learned counsel on the premise, concluded that there was no credible or admissible evidence before the learned trial Judge to justify the award of special and general damages in favour of the respondent against the appellant, and consequent to which this court was urged to allow this, appeal.
In combining all the appellants 1st, 2nd, 3rd, 4th, 5th, 7th and 8th issues in the respondent’s 1st issue, his learned counsel tenaciously argued and submitted that in 1953 when Nigeria was still a colony of the British Government it ratified the Warsaw convention through an Act of the British Government, which was subsequently incorporated into our laws via the Carriage by Air (Non-international) (Colonies Protection and Trust Territories) order 1953.
That the purpose of the Warsaw convention was to provide for uniformity and certainty in the application of the law on aviation to the rights and obligations of the users and providers of international air transportation. That the lower court, having concluded that this action was based on the Warsaw convention of 1929 became bound by the provisions of the convention with particular relevance to Article 4 first schedule section 1(5) relating to the currency as mentioned in article 22 of the second schedule. Specific reference was also made to article 22 (5) of the convention, and the reason which counsel argued the competence of the lower court giving its judgment in naira instead of dollars or any other international currency. That the claim of the respondent was based on an international currency the dollar, even though the respondent bought his ticket in naira for a local flight, for the simple reason that the dollar is recognized by the United Nations as a convention currency, or a convertible currency; and the sum total of any award which should be in line with the provisions of the convention. That exhibit A (the airline ticket) imports the “Warsaw convention” and it is within this parameter that the court determined the liability of the appellant and which counsel argued rendered inapplicable the authorities of PZ & Co. v. Ogedengbe and Kyaure Construction Ltd. v. Agbana supra which were cited by the appellant’s counsel. Reference to substantiate the argument was made to article 17 of the 1953 order which makes the carrier liable in the absence of his proving exoneration under articles 20 and 20 (1) of the 1953 order. That in the absence of the appellant’s failure to file a defence or lead any evidence, the only option left to the court was for assessment of damages.
On the appellant’s submission that the award of general and special damages would amount to double compensation, the learned respondent’s counsel cited the authority in the case of Obasuyi v. Business Ventures Ltd. (2000) 4 SC (Pt.1) at page 180, (2000) 5 NWLR (Pt.658) 668. Emphasis was laid on the case of Ifere v. Trufoods (2000) 8 WRN 36 wherein, the counsel argued, the lower court duly followed the principles as laid down therein the authority.
In substantiating and justifying the general damages arrived at, the respondent referred to his statement of claim at pages 13, 46 and 47 of the record. Further reference was also made to the cases of Okhai v. C & C. Construction Co Ltd. (1998) 3 NWLR CPt.543) 584 and Ebe v. Nnamani (1997) 7 NWLR (Pt. 513) 479, as well as the case of British Transport Commission v. Gourley (1956) A. C. 185. That he lower court in the prevailing circumstance did proceed on proper and time tested principles of law in arriving at the awards.
Furthermore and on the issue of special damages, counsel stressed that all the awards on this head were not only pleaded but proved with credible evidence with particular reference to exhibit B. That under article 22 (3) the liability of a carrier for loss, damage or destruction of a hand held luggage is limited to 5000 francs per passenger. It follows that the award of N15,000 is a very conservative assessment.
On the probative value of exhibits B, C, D, D1, D2 and D3 learned counsel garnered that the facts which supported the evidence were duly pleaded and the documents properly admitted. Reference was made to paragraph 8 of the respondent’s statement of claim, and the decision of their Lordships of the Supreme Court in Agbahomovo v. Eduyegbe (1999) 2 SC 86, (1999) 3 NWLR (Pt.594) 170; also Torti v. Ukpabi (1984) 1 SCNLR 214. Further related authorities are the cases of Fawehinmi v. IGP (2000) 7 NWLR (Pt.665) 481 at 524 – 525 and UBN Plc v. Sparkling Brew Ltd. (2000) 15 NWLR (Pt.689) 200 at 211 – 212. That the objection of the appellant can only go to the weight to be attached to the exhibits and not to its admissibility. On the issue of weight, argued learned counsel, the lower court did not take into consideration exhibits D, D1, D2 and D3 in computing special damages but relied solely on exhibit B (Medical bill from Eko hospital) which was admitted without objection from the appellant. No consideration was also taken of exhibit C in awarding special damages to the respondent.
On the interim report produced by PW2, counsel further submitted that no reliance was made on same by the lower court in arriving at its conclusion on the ultimate liability of the appellant.
That the court adopted the procedure in accordance with the decision (1999) 3 NWLR (Pt.594) 170, where the issue was the right of the court to look at a document not tendered as an exhibit. The learned counsel in the result submitted that the lower court did the right thing by referring to the interim report, which was before it, but same he argued did not form the basis of its judgment.
It is not in controversy that the action or claim before the lower court was based or predicated on the contract of carriage between the plaintiff and the defendant airline company. Needless to reemphasize therefore that domestic air travels in this country are governed by the Carriage by Air (Non-international Colonies Protectorates, and Trust Territories) order 1953, Vol. XI, Laws of the Federation, 1958, which gives the force of law to the Warsaw Convention 1929; the historical reasoning which dated back to 1953 when Nigeria was still a colony of the British government which therefore ratified the Warsaw convention through an Act of the said government and which same was therefore subsequently incorporated into our laws via the order 1953. The re-iteration and supportive power house can be derived from the authority in the case of Oshevire v. British Caledonian Airways (1990) 7 NWLR (Pt.163) p.507 wherein the Court of Appeal placed an overriding premium on an international agreement embodied in a convention or treaty which force is above domestic legislation. Ogundare J.C.A. (as he then was) in the said authority, for instance, had the following to say:-
“for the purpose of this case, Great Britain ratified the Warsaw Convention in 1929 and pursuant to Sections 1 and 2 of the Carriage by Air Act, 1932 made it applicable to Nigeria by the carriage by Air (Colonies Protectorates and Trust Territories) Order-in-Council 1953. At independence in 1960, Nigeria declared itself bound by such treaties and it was deemed as if Nigeria had acceded to them”.
The purpose and underlying significance of the Warsaw Convention was to provide for uniformity and certainty in the application of the law on aviation to the rights and obligations of the users and providers of international air transportation. On the issue of liability article 17 of the 1953 order is relevant and the regulating legislation which same reproduced states:-
“The carrier is liable for damages sustained in the event of death or wounding of a passenger or any bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the cause of any such operations of embarking or disembarking.”
For purpose of determining liabilities articles 4 and 22 of the convention are relevant. For instance, under Article 4, First Schedule section1(5), it provides that the currency of the convention i.e. “The Francs” mentioned in article 22 of the second schedule can be converted into the local currency by the courts of the contracting parties. Furthermore and by Article 22(5) of the said convention, it is apparent that the sum of 125,000 francs is the limitation of liability of the carrier in respect of injury which same can also be converted into “any national currency in round figures”.
At page 183 of the record of proceedings the learned trial Judge in its Judgment held thus among other things:
” … I hereby award the sum of one million naira as general damages. Under this head also, I award the sum of N80,000 for pain and suffering. I also award the sum of N15,000 for the loss of hand luggage with respect to special damages. I am fully satisfied that the medical bill is exhibit B and it is in the sum of N157,840.00. I hereby uphold same and award the sum of NI57,840.00 as special damages …”
Having regard to the submission by the respondent’s counsel especially the aspect relating to the jurisdiction of the lower court to give judgment in Naira in respect of the claim, same is not in issue as rightly conceded to by the appellant’s counsel on his reply brief.
The question raised by the appellant however relates to whether the learned trial court was entitled to give judgment in Naira having regard to the respondent’s claim being in Dollars and also with the respondent having no corresponding Naira equivalent claim in dollars.
It is obvious from the respondent’s claim that same was in dollars. It is obvious from the respondent’s claim that same in dollars. For the purpose of reconciling the court’s findings vis-a-vis the claim before it, it would be needful to reproduce the statement of claim in particular paragraphs 8, 12, 13 and 14:-
“8. Plaintiff was therefore required to seek medicine and medical attention and to be hospitalized for a very long period of time; immediately after the crash, plaintiff was hospitalized at Eko Hospital, Lagos. The plaintiff has continued to attend the aforementioned hospital as an out patient. That plaintiff has suffered extreme pain and mental anguish and will in the future continue to suffer pain and mental anguish all to his damage to the tune of $5,000,000.
- In view of the foregoing, the plaintiff reserves the right to add to his claim any other findings that could become public as a result of the investigation being carried out as to the cause and circumstance of the air crash.
Particulars of special damages
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
$38,000
The plaintiff shall at the trial rely on all correspondences, recording transcripts, letters, manuals in proof of the averments.
WHEREOF the plaintiff claims judgment against the defendant in the sum of $5,000.000 (U.S. dollars), it is significant to state that while the respondent’s claim was in dollars, there was no indication of the claim in Naira equivalent.
It is also not borne out on the record of the conversion of any currency, whether from Francs to Naira or from dollars to Naira. The respondent’s counsel on his brief of argument at paragraph 3.02 however submitted on the conversion rate of Naira to dollar equivalent. The learned appellant’s counsel also did submit and limited the defendant/appellant’s liability to $8,300.00 in line with article 22 wherein liabilities are limited at all events to 125,000 francs.
The question for determination is, what is the legal effect of the submission of both counsel in respect of the currency rate conversion?
It is trite and elementary to restate that address of counsel is not evidence and that which cannot be relied upon by a court for purpose of proof in a claim before it. In other words, no address of counsel can serve as substitute for evidence as rightly submitted by the learned appellant’s counsel. Needless to restate also that the issue of the exchange rate of the Naira to the Dollar is a matter of fact which must be proved by evidence.
It is further an accepted principle that a court of law must not grant a party a relief he has not claimed or asked for; and also trite hat where a party has proved his case to be entitled to the reliefs claimed, it is incumbent on the trial court to grant the reliefs in the same manner in which they were sought in the pleadings. The relevant supporting authorities are: Aghadiuno v. Onubogu; Ekpenyong & Ors v. Nyong & Ors. and Military Governor of Ondo State v. Ajayi all under reference supra. Needless to further restate that an appellate court is under a duty to confine itself to the exact content of the record of proceedings at the trial court. The authority in the case of Orugbo v. Una (2002) 9-10 SC p. 61 at 79, (2002) 16 NWLR (Pt.792) 175 on this proposition is relevant.
The claim at the trial court as stated earlier was in Dollars, all the exhibits tendered and admitted and even the witnesses’ testimonies in court also gave the value in Naira. None of the two witnesses to wit the plaintiff/respondent himself and his witness PW2 did give evidence on the conversion rate of the naira into any foreign currency. The law is trite that a plaintiff must succeed on the strength of his case and not rely on the weakness of the defence. The authority in point is the case of Union Bank of Nigeria Plc v. SCPOK Nigeria Ltd (1998) 12 NWLR (Pt. 578) p. 439 at 465. Further related authorities are section 9 Federal High Court Act Cap. 134 laws of the Federation of Nigeria vol. viii 1990 and order 19 rule 4 High Court of Lagos (Civil Procedure) Rules Cap. 61 laws of Lagos State volume 3, 1994. Contrary to the submission by the learned respondent’s counsel therefore, in my humble opinion, by the very nature of the claim before the trial court, the absence of a statement of defence or evidence led by the appellant per se would not have exonerated the responsibility of the respondent in proving his claim.
In other words, the respondent’s success is not automatic with the damages having deemed to be in issue.
It is significant to restate that the principles of law as stated by the respondent relating to the claim are apt and rightly applicable.
What is however at cross roads and rightly questioned by the appellant as stated earlier is the propriety or not of the currency differentials between the claim and the eventual relief awarded which are at variance in the absence of an evidential harmonizing factor.
This deficiency is obviously very detrimental to the respondent’s case. The safeguarding precaution certainly would have with minimal diligence saved the situation. Having regard to same and in the prevailing circumstance, it was not open to the lower court to have awarded reliefs in Naira where the claim was in United States Dollars, a different currency. This is more so especially in view of the facts that the respondent’s claim as pleaded, particularly the particulars of special damages, at paragraphs 12 of the statement of claim supra, presupposes that the damages suffered by the respondent was in United State dollars and not in Naira as awarded by the trial court.
As rightly submitted in my humble view by the learned appellant’s counsel, the learned trial Judge was only entitled to award damages in favour of the respondent in United States Dollars.
In the absence of any jurisdiction to the contrary, it also follows that the other arms of the arguments predicated on the claims relating to the assessment of damages which are all consolidated as stated earlier, under the respondent’s issue no. 1 ought to be determined in favour of the appellant. Consequently, and from the cumulative and deductive effect of the said issue as raised, I hold the humble view that the appellant succeeds on the consolidated issue no. 1. Same therefore as well as all the grounds of appeal predicated thereon succeed and are allowed.
The respondent’s 2nd issue which tallies with the appellant’s 6th issue is whether the learned trial Judge was right in holding that the defendant was guilty of willful misconduct as provided in article 25 of the Warsaw convention of 1929.
In his submission, the learned appellant’s counsel relied on Articles 22(1) and 25 of the Warsaw Convention and submitted that by virtue of the said legislations, the appellant was entitled to rely on the limitation of its liability except if 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. That the carrier would not be liable perse that the act had been done recklessly, it must also be shown to have been done with knowledge that damages would probably result. The authority in support was the case of Oshevire v. British Caledonain Air Ltd. (1990) 7 NWLR (Pt.163) p. 507 at 524. The learned counsel re-iterated the definition of willful misconduct in the case of Horabin v. BOAC (1952) 2 All ER 1016. That the respondent did not in his statement of claim plead willful misconduct in consonance with the said definition. That the attempt made in paragraph 10 of the pleading however did not suffice. The learned counsel to substantiate his argument cited the case of Pinson v. Lloyds and National Provincial Foreign Bank (1941) 2 K.B. pg 72 at 75; Also the case of Ndukwe v. Acha (supra) where evidence which is at variance with pleadings goes to no issue and is inadmissible. That no evidence was led to support the findings of willful misconduct. That in the absence of conclusive investigation into the air crash per the evidence of PW2, there was therefore no justification for the learned trial Judge to have held that the appellant was guilty of willful misconduct thereby depriving the appellant of the opportunity to limit its liability.
In his submission on behalf of the respondent, his learned counsel also relied on the provisions of article 25 of the Warsaw convention as well as the authority in the Court of Appeal decision in the case of Goldman v. Thai Airways International Ltd (1983) 3 C All ER 693. The learned counsel submitted extensively on the evidence of the respondent’s witnesses at the lower court. He therefore concluded that from the evidence together with other findings, the Judge correctly and justifiably came to the conclusion that the appellant was guilty of willful misconduct as provided in article 25 and urged that the issue be, resolved in favour of the respondent as the appellant did not lead any evidence to rebut the findings of fact by the trial Judge.
For the determination of the 2nd issue raised, the relevant applicable legislations are Articles 22 and 25 of the Warsaw convention which same reproduced provide thus:-
Article 22.
“(1) In the transportation of passengers the liability of the carrier for each passenger shall be limited to the sum of 125,000 francs. Wherein accordance with the law of the court to which the case is submitted, 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.
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 willful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, 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 under the same circumstances by any agent of the carrier acting within the scope of his employment.”
The Scheme of the Warsaw convention is plain and straight forward on its face value wherein chapter III is applicable for our purpose. While article 17 for instance, is of a very significant relevance wherein it imposes an absolute liability upon the carrier for all personal injuries regardless of the fault if the accident which caused the damage so sustained took place on board the aircraft; the said liability however is excused by article 20 (1) if the carrier proves that it has taken all necessary measures to avoid the damage or that it was impossible for it to take them. It follows therefore that the burden of proof is placed upon the carrier to discharge.
It is against this back ground therefore that article 25 steps in and ousted the advantage of the carrier. The said article for instance provides that the carrier shall not be entitled to avail itself of the provisions of the convention which exclude or limit its liability if the damage is caused by its willful conduct. The exclusion refers to article 20 (1) and the limitation also to article 22 (1), which provides and therefore limited the liability of the carrier.
In my humble view and having regard to the salient interpretation of the legislation it serves a significant general purpose of protecting international air carriers from the burden of excessive claims connected with the loss of aircraft under circumstances which make it impossible or virtually so to determine the mechanical or human short comings which caused the disaster because of the death of all on board and the destruction of the plane. Also, to be read and implanted in the terms of the convention is a deductive intention to relieve the carrier of this burden of proof whilst at the same time giving the injured parties the opportunity to prove the willful misconduct if they could.
On the one hand and from the cumulative deduction, by the provision of article 22 (1) same has limited the liability of the carrier to 125,000 Francs except of course under a special contractual proviso between the carrier and passenger of a higher limit of liability. On the other hand, article 25 seeks to exclude article 22(1) in situations where the damage is either as a result of willful misconduct or default on the part of the carrier.
The concept of “Wilful misconduct was defined in the English case of Horabin v. BOAC reference supra, as follows:-
“Willful misconduct is misconduct to which the will is a party and it is wholly different in kind 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 considered in the light of that definition.”
From the foregoing definition, the act that constitutes willful misconduct is clear cut. It relates to proof of a conscious intent to do or omit the doing of an act from which harm results to another. It is an intentional omission of a manifest duty to which there must be a realization of the probability of injury from the conduct and a disregard of the probable consequence of such conduct. At pages 178, 179 and 180 of the record the learned trial judge in its findings had this to say at great length:-
“There is unchallenged, uncontradicted and credible evidence in this matter 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 subpoenaed 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 this 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 to result from the way he handled this ill-fated aircraft. I hereby so hold.”
While the appellant denied the foregoing deductions, the respondent sanctioned same. It is also significant to have recourse to the respondent’s statement of claim at pages 13 – 14 of the record.
Specifically paragraph 10 (a) – (r) have graphically spelt out the particulars of willful misconduct, gross negligence and also reckless misconduct. In my humble opinion and having regard to the said averments, one seems at loss with the argument by the appellant’s counsel on the absence of pleading and the proof thereof. In other words, it is my humble deduction that the contention by the said learned counsel is hollow and that which does not hold water. Consequently, the authority of Pinson v. Lloyds and National Provincial Foreign Bank (1941) 2 K B p. 72 at 75 cited by the counsel is therefore inapplicable. At page 178 -180 of the record reproduced supra, the learned trial Judge found as a fact that the evidence adduced in proof of the averments in the said paragraph 10 was unchallenged, uncontradicted and credible per PWI and PW2 on the record. There are plethora of authorities on an unchallenged evidence:- Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417; F.C.D.A. v. Naibi (1990) 3 NWLR (Pt. 138) 270 and Obmiami Brick & Stone (Nig.) Ltd. v. A.C.B. Ltd (1992) 2 NWLR (Pt. 229) 260 all relevant in point.
Deducing from the effectual interpretation of Article 25 therefore, the deductive proof of willful misconduct leaves wide open door to assessment of damage, per the Court of Appeal decision in the case of Goldman v. Thai Airways International Ltd. (supra) Eveteigh CJ for instance at p. 695 in attempting to define willful misconduct had this to say:- “for damages 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 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 omissions, the court is not entitled to attribute to him knowledge which another pilot might have possessed or which he himself should have possessed.”
The court went further to expound on the phrase “with knowledge that damages would probably result,” and held that:-
“The probability of the result must be read 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.”
From the said foregoing authority, the phrase “knowledge that damage would probably result” is very significant. As rightly submitted by the learned respondent’s counsel therefore, knowledge would be imputed where the nature of the damage would ordinarily flow from 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 was guilty of willful misconduct as provided in Article 25 of the Warsaw convention of 1929.
Consequently, I therefore hold that the appellant fails on the said issue and which same with the grounds of appeal predicated thereon are all dismissed.
In the circumstance of the appeal before us, while the appellant succeeds on the 1st leg of his appeal on assessment of special damages and all the grounds of appeal predicated thereon, 2nd leg of the appeal relating to willful misconduct and the grounds of appeal in that respect all fail and are dismissed.
With the conclusion arrived at and attributing willful misconduct to the appellant, the consequence is an injury caused to the respondent; the conceptual effect is the common knowledge that where there is an injury, there must be a remedy. The Black’s Law Dictionary Fifth edition at page 353 had defined General damages as:-
“Such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct, and proximate result, or such as necessarily result from the injury or such as did in fact result from the wrong, directly and proximately, and without reference to the special character, of the plaintiff.”
From the interpretation of the definition supra, the issue of general damages is that perceived as a direct and immediate result from the deductive circumstance of the nature of the injury and the extent which could be deduced there from. The respondent had certainly suffered great injury arising from the willful misconduct of the appellant. It is fair, just and equitable that he should and ought to be compensated. The nature and extent of such injury could be deduced from the receipts tendered at the lower court in proof of the respondent’s hospitalization as well as the suffering he went through. The failure to prove special damages as a result of the claim in foreign currency would not operate to preclude the right to general damages by this court in the circumstance. The relevant authority in support is the case of Saeby Jernstoberi M.F.A/S v. Olaogun Ent. Ltd. (1999) 14 NWLR (pt.637) p.128 at 145 -146 wherein their Lordships of the apex court enunciated and laid down affirmatively the jurisdiction of Nigerian courts to award judgment in foreign currency.
His Lordship Ayoola, J.S.C. in delivering the lead judgment for instance had this to say:-
“If there was any doubt that judgment can now be entered in foreign currency as the Court of Appeal had done, the opinion of Ogundare, J.S.C. in Koya v. United Bank for Africa Ltd. (1997) 1 NWLR (Pt.481) 251, 269 – 289 should in my opinion, lay such doubt to rest. After a review of several local and English authorities, he said at p.289:-
‘It is my respectful view that courts in this country can claim jurisdiction to entertain and determine cases where sums in foreign currencies are claimed. The old rule in England as well as in Nigeria is Judge-made and in the light of present day circumstances of extensive international commercial relationships, that rule should give way to a new rule as now in England more so that the difficulties hitherto experienced in enforcing such judgments no longer apply’.
The present practice is that where an award is made in foreign currency, the judgment will be for the payment of the amount in foreign currency or its Naira equivalent converted for the purpose of the enforcement of the judgment at the time of the payment.”
Having regard to the case of Saeby Jernstoberi M.F.A/S v. Olaogun Ent. Ltd supra as well as the provision of section 15 of the Court of Appeal Act Cap. C36, 2004, this court has the “full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance …” Consequently therefore, it is my humble view that the issue of general damages lies within the jurisdiction of this court to award. With due consideration therefore to the whole circumstance of the pains and suffering experienced by the respondent on the evidence adduced before the lower court, I would assess the sum of eleven thousand U.S dollars ($11,000) as an appropriate compensation for general damages.
The appeal on the totality therefore succeeds in part and consequent to which the judgment of the lower court relating to the claim of special damages fail and are set aside. In respect of the general damages however, the respondent succeeds and I enter a sum of Eleven thousand U.S. Dollars in his favour. There shall also be costs of N10,000 to the respondent.
Other Citations: (2005)LCN/1709(CA)
