➥ CASE SUMMARY OF:
EGYPT AIRLINE v. ADAMOU BALLA ABDOULAYE (2017) – CA
by PipAr Chima
Court of Appeal – CA/K/540/2014
➥ JUDGEMENT DELIVERED ON:
Wednesday, the 14th day of June, 2017
➥ AREA(S) OF LAW
Willful misconduct in aviation;
Pleading foreign law.
➥ NOTABLE DICTA
⦿ STATUTES ARE NOT TO BE PLEADED IN PLEADINGS
The position of the Appellant’s learned Counsel that the Appellant did not need to plead the provisions of p.4 of the Chinese Regulation concerning the transport of hazardous goods stems from the stated position that pleadings need no longer be technical and that it is no longer necessary to plead statutes and sections of statutes but that it is sufficient if the material facts only are pleaded. – O. Daniel-Kalio, JCA.
⦿ ALL FACTS ON WHICH EVIDENCE WILL BE GIVEN MUST BE PLEADED
A legal battle does not permit of surprises. A legal battle is very much like a boxing match or a tennis match where the opponent is known and the instruments of battle i.e., boxing gloves or tennis racquets and ball, as the case may be, are in plain view for all to see. No surprises are intended. In a Military battle however, surprise is fair game. The: enemy is not to know his opponents weapons or battle strategy. The enemy can surreptitiously plant bombs, land mines, etc. An ambush is a legitimate battle strategy. What the Appellant did by relying on the Chinese regulation without first pleading it, is a veritable ambush and a Court cannot rely on such evidence. – O. Daniel-Kalio, JCA.
⦿ GENERAL DAMAGES ARE INCAPABLE OF EXACT CALCULATION
General damages are presumed by law to be the direct and probable consequence of the act complained of. General damages are generally incapable of substantially exact calculation. There is therefore no scientific, or empirical formula to be followed in arriving at an award of general damages. That is why as far back as 1870 it was held that general damages are such as the jury may give, when the judge cannot point out any measure by which they are to be assessed except the opinion and judgment of reasonable men. See PREHN V. THE ROYAL BANK OF LIVERPOOL (1870) LR 5 EXCHIBIT 92. Therefore as long as the award of general damages aligns with what can be perceived or considered as one that can, in the opinion of reasonable men be capable of being awarded, there will be no reason to disturb the award. – O. Daniel-Kalio, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Obietonbara O. Daniel-kalio, J.C.A.
⦿ FOR THE APPELLANT
Mohammed Idris Esq.
⦿ FOR THE RESPONDENT
Rilwanu Umar Esq.
➥ CASE HISTORY
The Respondent Adamou Balla Abdoulaye a businessman resident in Hausawa Quarters, Kano bought a return ticket to Guangzhou, China from the Appellant, Egypt Air. The Respondent travelled on 9/1/13 from Kano to China via Cairo and returned to Kano on 20/1/13. On his return, two bags that he checked in in China did not arrive. He complained about their non-arrival personally, by e-mail and through his Solicitor. On 9/2/13 the Appellant replied to the complaints and in doing so requested the Respondent’s permission to remove some dangerous items from the bags. Surprised at the request, the Respondent nevertheless gave his permission. Eventually, only one of the two missing bags was returned to the Respondent.
After hearing the parties, the lower Court found in favour of the Respondent and ordered the Appellant, to deliver the Respondents bag to him forthwith. Additionally, the court awarded the Respondent the sum of N800,000.00 as general damages and N50,000.00 as costs. Dissatisfied, with the judgment, the Appellant has appealed.
➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED, IN PART]
I. Whether the honourable trial Court was right in ordering the Appellant to deliver the remaining bag to the Respondent?
RULING: IN APPELLANT’S FAVOUR.
A. Going by the evidence of the Appellant’s witness at the lower Court, it is my view that an inference that the luggage is lost cannot be ruled out. In the circumstances, the lower Court was wrong to have ordered the Appellant to return the Respondent’s remaining bag forthwith. Its order in the circumstances, is one that is probably incapable of being carried out.
II. Whether or not the lower Court ought to have considered and relied on the provisions of p.4 of the Chinese Regulation concerning the transport of hazardous goods and Article 18(3)(d) of the Warsaw Convention as amended by Article IV of the Montreal Protocol?
RULING: IN RESPONDENT’S FAVOUR.
A. Now p.4 of the Chinese Regulations are not part of the laws to be judicially noticed under Section 122 of the Evidence Act 2011. Such a law is a foreign law and as such is treated as a fact, that must be pleaded.
III. Whether in the light of Exhibits H, D1, F and the evidence of DW1 the trial Court was wrong to have concluded that the Appellant’s action amounts to willful misconduct?
RULING: IN RESPONDENT’S FAVOUR.
A. The evidence before the lower Court shows that while the Respondent was very alive to his responsibility to seeing to the return of his bag, the Appellant was reticent and anything but proactive about the matter. The Appellant came across as being indifferent. The evidence before the lower Court shows that the Respondent sent e-mail after e-mail to the Appellant and the Appellant’s response to the e-mails were rather lukewarm and phlegmatic. An attitude of indeference is one that the law can consider as one that amounts to willful misconduct.
B. To be reckless means not to show proper concern about the possible bad result of one’s actions. Going by the evidence before the lower Court and analyzing the e-mail, it will not be wrong to say that the palpable indifference of the Appellant with regard to the Respondent’s bag is one that can be characterized as reckless indifference and therefore one that amounts to willful misconduct.
IV. Whether the general damages awarded by the trial Court was excessive and arbitrary?
RULING: IN RESPONDENT’S FAVOUR.
A. It has been held that an Appellate Court will not disturb general damages awarded unless the findings proceeded from wrong principles or are not supported by credible evidence. See CALABAR EAST COOPERATIVE THRIFT SOCIETY LTD & ORS. V. IKOT (1999) 14 NWLR PART 638 p. 225. In this case, I cannot see that any wrong principle has been applied before the award of general damages.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 122 Evidence Act 2011
➥ REFERENCED (CASE)
⦿ FOREIGN LAW IS A QUESTION OF FACT TO BE PLEADED
In the case of PEENOK INVESTMENTS LTD. v. HOTEL PRESIDENTIAL (1982) 12 SC (REPRINT) the Supreme Court per A.G. IRIKEFE JSC stated that as a general proposition of law, foreign law is a question of fact which should be pleaded and proved in a trial Court.
⦿ WHAT CONSTITUTES WILLFUL MISCONDUCT
In the case of HARKA AIR SERVICE (NIG) LTD V. EMEKA KEAZOR Esq (2011) 13 NWLR Part 1264 p. 320 at p. 364, the Supreme Court, per Rhodes-Vivour JSC gave the following view on what constitutes willful misconduct: “Willful misconduct is a deliberate wrongful act by a pilot, airline staff or its agent, which gives rise to a claim for damages by passengers. When a staff of an airline acts with reckless indifference, such unacceptable behavior especially by a professional person amounts to willful misconduct.”
➥ REFERENCED (OTHERS)