➥ CASE SUMMARY OF:
Cameroon Airlines v. Mr. Mike E. Otutuizu (2011) – SC
by PipAr Chima
Supreme Court – SC.217/2004
➥ JUDGEMENT DELIVERED ON:
Friday, the 4th day of February, 2011
➥ AREA(S) OF LAW
Air carrier liability;
General & special damages;
➥ NOTABLE DICTA
⦿ LACK OF RESPONDENT BRIEF DOES NOT PUT THE APPELLANT AT AN ADVANTAGE
Not filing respondents brief in no way puts the appellant at an advantage, since the judgment of the Court of Appeal is a favour of the respondent. The appellant still has to show that the Judgment of the court of Appeal was wrong. – Rhodes-Vivour, JSC.
⦿ NATURE OF CONCURRENT FINDINGS
There are thus concurrent findings of fact that the appellant was in breach of contract to fly the respondent from Lagos to Manzini and back to Lagos. It is very well settled that concurrent findings by the trial court and the court of Appeal would not be disturbed by the Supreme Court except there has been exceptional circumstances to disturb those findings such as: 1. The findings cannot be supported by evidence, or are perverse. 2. There is miscarriage of justice or violation of law or procedure. – Rhodes-Vivour, JSC.
⦿ ORAL EVIDENCE IS TESTED BY DOCUMENTARY EVIDENCE
Documentary evidence always serves as a hanger from which to assess oral testimony. – Rhodes-Vivour, JSC.
⦿ THE CONCURRENT FINDINGS ON WILLFUL MISCONDUCT
There was no evidence before the learned trial judge that there was any reason to deviate from the agreed stopping places. Flying to Johannesburg, South Africa amounts to willful misconduct that the appellant has been unable to explain. The appellant was in breach of contract and created the situation which led to the loss of the respondent’s brief case, and his deportation to Nigeria after spending eight nights in jail. In the absence of justification for flying to Johannesburg, South Africa, there is a clear breach of contract since the respondent was never flown to Manzini, Swaziland. The appellant is responsible for all that happened to the respondent in South Africa, and so concurrent findings by the two courts below that the appellant was in breach of contract is affirmed. – Rhodes-Vivour, JSC.
⦿ FEDERAL HIGH COURT HAS JURISDICTION OVER AVIATION MATTERS
The Federal High Court has exclusive jurisdiction over Aviation related causes of action. See Section 251 (1) K of the Constitution; and a plaintiff, claimant would have a valid claim if his suit is commenced within two years from the date of arrival at his destination or from the date on which the aircraft ought to have arrived or from the date the flight ended. See Article 29 of both Legislations. – Rhodes-Vivour, JSC.
⦿ WARSAW CONVENTION LIMIT DOES NOT APPLY WHERE WILLFUL MISCONDUCT
Indeed in all other cases spelt out in the Convention the limits on liability must be followed but where there is breach of contract of such a magnitude that it amounts to a willful act, a willful misconduct the limits are no longer applicable. – Rhodes-Vivour, JSC.
⦿ GENERAL DAMAGES ARE LOSSES THAT FLOW NATURALLY
Once breach of contract is established, damages follow. General damages are thus losses that flow naturally from the adversary and it is generally presumed by law, as it need not be pleaded or proved. See UBN Ltd. v. Odusote Bookstores Ltd. 1995 9 NWLR pt. 421 p558 General damages is awarded by the trial court to assuage a loss caused by an act of the adversary. An appeal Court is always loath to interfere with such award, but will be compelled to do so: (a) Where the trial judge acted under a misapprehension of facts, or law; (b) Where he failed to take into account relevant matters; (c) Where the amount awarded is too low or too high; (d) Where failing to interfere would amount to injustice. Damages are awarded to restore the plaintiff as far as money can to the position he would have been if there had been no breach. That is to say to compensate the plaintiff for the loss. – Rhodes-Vivour, JSC.
⦿ DAMAGES FOR BREACH OF CONTRACT IS BASED ON RESTITUTIO IN INTEGRUM
In awarding damages in an action founded on breach of contract, the rule to be applied is restitutio in integrum that is, in so far as the damages are not too remote, the plaintiff shall be restored as far as money can do it, to the position in which he would have been if the breach had not occurred. – ADEKEYE, J.S.C.
➥ LEAD JUDGEMENT DELIVERED BY:
Bode Rhodes-vivour, J.S.C.
⦿ FOR THE APPELLANT
Mr. A. A. Agbabiaka, SAN.
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
The respondent is a business man. He had a business appointment in Manzini Swaziland, and so he went to the appellant’s office at Oko Awo Close, Victoria Island. Lagos. There he was told that the appellant flies to Manzini, Swaziland. Two tickets Exhibits, A and B were sold to the respondent by agents of the appellant. The tickets were routed as follows: Exhibit A. Lagos to Doula. Cameroon to Harare, Zimbabwe, returns on the same route to Lagos Exhibit B. Harare, Zimbabwe to Manzini Swaziland, and back to Harare. The respondent purchased both tickets for the sum of 921 (United States Dollars). According to Exhibits A and B the night was scheduled to depart Lagos on 27/2/96 to Manzini. Swaziland by way of Cameroon. Zimbabwe. On arrival in Zimbabwe, the appellant was kept in the transit Hall and the next morning flown to Johannesburg South Africa, instead to Manzini, Swaziland. On arrival in Johannesburg, the respondent was arrested and his personal effects and briefcase containing $20,000.00 removed from him and never returned to him. He was deported to Zimbabwe where he spent seven days in jail before he was flown to Nigeria.
The Respondent as Plaintiff sued the Appellant as Defendant in the Federal High Court, Lagos Division. Judgment was given in Respondent’s favour with damages awarded. The learned trial judge then concluded that since the respondent was never flown to Swaziland, the final destination of the respondent on the outward journey on Exhibit B, the appellant was in breach of contract: The Court of Appeal agreed with the learned trial judge. There are thus concurrent findings of fact that the appellant was in breach of contract to fly the respondent from Lagos to Manzini and back to Lagos.
Appellant appealed to the Court of Appeal & Respondent cross-appealed too. Appellant appeal was dismissed. Respondent cross-appeal was upheld.
This is a further appeal by the Appellant.
➥ ISSUE(S) & RESOLUTION
I. Whether the award of N500,000 as general damages upheld by the Learned Justices of the Court of Appeal is sustainable having regard to the provisions of the Warsaw Convention (as amended at the Hague 1955), the findings of the trial judge and the evidence adduced at the trial?
RULING: IN RESPONDENT’S FAVOUR.
A. Evidence before the trial judge justifies an award of general damages. The respondent was never flown to Manzini, Swaziland and so he was unable to keep his business appointment. Instead he was flown to South Africa where his brief case and valuables were taken from him and never returned. He was put in jail twice, for a night in South Africa and seven nights in Zimbabwe where he was deported to Lagos, Nigeria. The above paints a harrowing and traumatic experience for the respondent. I find the award of N500, 000 adequate in the circumstances and it is sustainable in view of Article 25 of the convention which removes the limit of the carriers liability.
II. Whether the award of $20,000 as special damages by the Learned Justices of the Court of Appeal is supportable in Law, having regard to the evidence adduced at the trial and the findings of the trial judge?
RULING: IN RESPONDENT’S FAVOUR.
A. By the provision of Article 25 of the convention a carrier (the appellant) loses its entitlement to rely on the limit set on its liability by Article 22 (1) where a briefcase containing $20,000 and valuables of the respondent is taken away (and never returned) by South African Immigration officials as a result of the willful act by the appellant, in flying the respondent to South Africa, when it knew that the respondent did not have a South African transit visa. When the carrier commits willful misconduct, the respondent is entitled to more damages than the limit set in Article 22 of the Convention.
B. The submission of learned counsel for the appellant that where a common Law relief is enshrined in a statute, resort must be had only to the statute is correct. Article 22 of the Convention makes provision for limitation of the carrier (appellant) in damages to 125,000 francs. Article 25 of the same Convention is clear that the carrier would not be entitled to avail itself of Article 22 if the claim arose from willful misconduct of the carrier. In view of the fact that the appellant did not comply with the provision of Article 3 (i) (c) of the Convention, earlier alluded to and explained, the award of $20,000 as Special damages was correct.
C. Finally, the reasoning of the learned trial Judge that the award of $20,000 cannot be made because the South African Immigration Officials were not made parties is strange in view of the fact that non-joinder of a party cannot defeat a claim. It is well settled that it is the duty of the plaintiff to sue all relevant or interested parties, but if the plaintiff fails to do so it does not mean that his action would fail.
III. Whether the learned Justices of the Court of Appeal were right in discountenancing the Appellant’s reply brief for allegedly containing further arguments in respect of the Appellant’s main appeal.
RULING: IN RESPONDENT’S FAVOUR.
A. Pages 168 to 172 contain arguments that are for the sole purpose of extending the scope of the appellant’s brief. It is only arguments on pages 173 -178 that answer the cross-appellant and the Court of Appeal considered arguments on the issue of $20,000 special damages and the non joinder of South African Authorities before making a finding. The appellant used his appellant’s/Cross Respondent’s reply brief to extend the scope of his appellant’s brief, a situation of having two bites at the appeal.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Warsaw Convention [Articles 17, 18, 19, 20, 21, 22, 23, 25];
➥ REFERENCED (CASE)
⦿ REPLY BRIEF IS FOR ANSWERING NEW POINTS RAISED
In Longe v. First Bank of Nig. PLC. 2010 2-3 SC p.61, It was held inter alia that: “…A Reply Brief is necessary and usually filed when an issue of Law or argument raised in the Respondents Brief calls for a Reply. Where a Reply Brief is necessary, it should be limited to answering new points arising from the Respondent’s Brief. Although, an Appellant’s Reply Brief is not mandatory, where a Respondent’s Brief raises issues or points of law not covered in the Appellant’s Brief, an Appellant ought to file a Reply Brief. It is not proper to use a Reply Brief to extend the scope of the Appellant’s Brief or raise issues not dealt with in the Respondent’s Brief.”
➥ REFERENCED (OTHERS)