➥ CASE SUMMARY OF:
Harka Air Services (Nig.) Limited v. Keazor Esq. (2011) – SC
by PipAr Chima
Supreme Court – SC.262/2005
➥ JUDGEMENT DELIVERED ON:
Friday, the 17th day of June, 2011
➥ AREA(S) OF LAW
Award of damages in foreign currency;
➥ NOTABLE DICTA
⦿ REPLY BRIEF IS FOR ADDRESSING NEW ISSUES RAISED
A reply brief is filed when an issue of law or argument raised in the respondent’s brief usually by way of a preliminary objection calls for a reply. Where a reply brief is necessary, it should be limited to answering any new points arising from the respondent’s brief. Although the filing of a reply brief by an appellant is not mandatory, where a respondent’s brief raises issues or points of law not covered in the appellant’s brief, an appellant ought to file a reply as failure to file one without an oral reply to the points raised in the respondent’s brief may amount to a concession of the points of law or issues raised in the respondent’s brief. It is not proper to use a reply brief to extend the scope of the appellant’s brief or raise issues not dealt with in the respondent’s brief. A reply brief is not meant to have a second bite of the cherry, which is exactly the purpose of the appellant’s reply brief in this appeal. Since the appellant used the reply brief to extend the scope of his argument and submission in the two issues raised for determination, it is utterly irrelevant to this appeal. – Adekeye JSC.
⦿ WHERE COMMON LAW HAS BEEN ENACTED INTO A STATUTE, STATUTE OVERRIDES
The law is that where domestic/common law right has been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right and not the domestic/common law. Hence, an air passenger is not at liberty to choose as between the provisions of the convention and the domestic/common law for claims for damages against the carrier. Such claims have to be asserted only in accordance with and subject to the terms and conditions of the convention and cannot be pursued under any other law. – Adekeye JSC.
⦿ AWARD OF DAMAGES IS DUTY OF TRIAL COURT – WHERE SUCH WILL BE INTERFERED IN
I have to commence my reasoning in this issue by laying emphasis on the notorious fact that the award of damages is essentially the duty of a trial court and will not be interfered with except unless certain circumstances exist:- a. Where the trial court acted under a misapprehension of facts or law b. where it failed to take into account relevant matter c. Where the amount awarded is too low or too high d. where failure to interfere would amount to injustice. – Adekeye JSC.
⦿ SECTION 16 OF THE COURT OF APPEAL ACT GIVES THE CA WIDE POWERS
Section 16 gives the court of appeal power to deal with any case before it on appeal, which power includes the jurisdiction of a court of first instance. The section confers on the lower court wide power to enable it make order which the High Court would have made in a matter of jurisdiction of the High Court i.e. a precondition for the invocation of the provision of Section 16 by the Court of Appeal. The section stipulates that the court of Appeal may from time to time; make any order necessary for determining the real question in controversy in the appeal. – Adekeye JSC.
⦿ NATURE OF WILLFUL MISCONDUCT IS AVIATION
Willful misconduct is a deliberate wrongly acts 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 willful misconduct. A Pilot that lands his plane without clearance from the control tower to my mind is guilty of willful misconduct, and both courts below were correct to so find. The position of the law is that concurrent findings of fact by the courts below would not be upset by this court except they are perverse or cannot be supported from the evidence before the court or there is/was miscarriage of justice, or violation of some principle of law or procedure. – Rhodes-Vivour JSC
➥ LEAD JUDGEMENT DELIVERED BY:
Olufunlola Oyelola Adekeye, J.S.C
⦿ FOR THE APPELLANT
– Mr. Rotimi Seriki.
⦿ FOR THE RESPONDENT
– Mr. John Duru.
➥ CASE HISTORY
Facts of this case are that on the 24th of January 1995, the plaintiff now respondent in the instant appeal boarded Harka Air Services Limited on its flight No.TU134 from Kaduna to Lagos. There was bad weather at the point of embarkation as a result of which all other commercial Airlines cancelled their flight and there was none operating two hours before the defendant’s flight took off. The flight to Lagos was turbulent. The descent in Lagos was irregular, as the air craft finally crash-landed. This was followed by a smoke and fire out break in the cabin which caused panic and confusion as passengers scampered for safety.
The plaintiff/respondent had a traumatic experience, coupled with sustaining injuries and body pain. He lost his hand luggage and personal effects. The serious nature of the injuries required medical attention. He suffered loss professionally and financially as the injuries curtailed his day today activities. As the plaintiff/respondent was convinced that the crash was due to the negligence, careless and recklessness of the defendant/appellant, its servants, agents and employees in maintaining, controlling and operating the said aircraft on the fateful day, he wrote to the defendant/appellant for compensation. As his claim was unheeded, he filed an action at the Federal High Court, Lagos.
In the writ of summons issued at the Federal High Court Lagos, Emeka Keazor as plaintiff, claimed against the defendant, Harka Air Services Nigeria Limited as follows, inter alia: 1) The sum of $5,000,000.00 (Five Million United States Dollars) being compensation and damages arising from the lost luggages and personal effects and injuries sustained by the plaintiff on board the defendant’s aircraft which crash landed in Lagos on the 24th day of June, 1995.
Being aggrieved by the decision of the trial court, the defendant/appellant appealed to the court of Appeal, Lagos. In the judgment delivered on the 17th of March, 2005, the court of Appeal allowed the appeal in part having found that there was sufficient evidence of willful misconduct on the part of the appellant, it found that the trial court was in error to have awarded damages in naira when it was specifically pleaded in US Dollars.
The lower court awarded $11.000 US Dollars as an appropriate compensation for general damages; the claim for special damages failed and was set aside. The appellant made a further appeal to this court based on the Notice of Appeal dated the 21st of March, 2005.
➥ ISSUE(S) & RESOLUTION
I. Whether the learned justices of the Court of Appeal were right in affirming the decision of the trial court by holding that the appellant was guilty of willful misconduct as provided in Article 25 of the Warsaw Convention of 1929?
RULING: IN RESPONDENT’S FAVOUR.
A. I agree with the concurrent findings of the two lower courts and I find their conclusion in this matter, that the appellant is guilty of willful misconduct impeccable. Concurrent findings of fact of both the trial court and the Court of Appeal would not be disturbed by the Supreme Court except there are cogent and compelling reasons shown to justify disturbing the findings of fact, such as, where the findings cannot be supported by evidence or are perverse, patently erroneous where there is a miscarriage of justice or not the result of a proper exercise of judicial discretion.
B. It is extant in the record of appeal and rightly found by the learned trial Judge that the appellant operated its flight on 24th June, 1995 from Kaduna to Lagos when other safety conscious airlines refused to do so and cancelled their flights as it rained early that day. The pilot was not given any clearance to land by the Air Traffic Controller when he reached the threshold. The aircraft was at 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. At the time the aircraft came in contract with the runway, it had already passed more than 60% of the total runway distance.
II. Whether the learned justices of the Court of Appeal, were entitled to award a sum of $1 1,000 (Eleven Thousand Dollars) as general damages in favour of the respondent?
RULING: IN RESPONDENT’S FAVOUR.
A. The trial and lower courts having identified that there is proof of a breach of a legal duty resulting in proved injury, the law automatically presumes damages to flow. The lower court was therefore in order to have invoked the right process of law to award the damages in foreign currency in line with the statement of claim of the respondent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
✓ Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 Vol. XI Laws of the Federation 1958;
✓ Article 25 of the Warsaw Convention 1929;
➥ REFERENCED (CASE)
⦿ DEFINITION OF WILLFUL MISCONDUCT
Horabin v. BOAC (1952) 2 All ER (1006) as follows – “Misconduct is misconduct which the will is a party and it is wholly different from mere negligence or carelessness, however gross that negligence or carelessness may be… To be guilty of willful misconduct, the person concerned must appreciate that he is acting wrongfully, or is wrongfully omitting to act, and yet persists in so acting or omitting to act regardless of the consequences, or acts or omits to act with reckless indifference as to what the result may be, all the problems must be evidence in the light of that definition.”
➥ REFERENCED (OTHERS)