Court Orders Emirates Airline To Pay A Lagos Based Lawyer Compensation For Delayed Delivery And Damage To His Luggage

th day of March, 2019. BACKGROUND FACTS The facts as presented by the Plaintiff is that the Plaintiff sometimes on the 16^th day of April, 2016 boarded a flight of the Defendant from New York to Lagos wherein the Plaintiff checked in 2 luggages with the Defendant. On arrival at airport in Lagos, the Plaintiff could only see one luggage while the second was said to have been left at JFK Airport in New York. The Plaintiff filed a report with the agents of the Defendant here in Lagos and was assured of his luggage the next day. It was not until the 28^th day of April, 2016 that the Plaintiff had access to his luggage even though same had been tampered with and certain items alleged to have been missing. Hence the correspondence between the Plaintiff and the Defendant’s company via various letters and mails wherein the Plaintiff seeks compensation. Upon refusal by the Defendant, the Plaintiff sued for redress seeking damages and compensation. On the side of the Defendant airline, they pleaded to have offered the Plaintiff settlement at the limit of liability and subject to proof of loss under the applicable legal regime of the Montreal Convention as well as offered USD $150, 00. They relied on other laws and denied most of the averments of the Plaintiff contained in his statement of claim and put him to the strictest proof thereof in their defence. In proof of his case, the Plaintiff testified as PW1 and adopted his Statement on Oath in Court and was cross-examined by the defence counsel. On the side of the Defendant, they also called one witness, a Senior Airport Service Agent who narrated nearly exact testimony of the PW1 but added that they sent letter of apology to him with no compensation. ISSUES FOR DETERMINATION The issues submitted for determination upon the close of their respective cases are as follows:

1. Whether the Plaintiff has proved his case and therefore entitled to the reliefs set forth in the writ of summons and statement of claim
2. Whether the Plaintiff’s claim beyond the limits of liability to the action arising from a contract of international carriage by air can succeed?

ARGUMENTS OF COUNSEL Counsel cited and relied on section 137(1) of the Evidence Act and the case of Miller V Minister of Pensions (1942) ALL ER 372 on burden of proof in civil actions. Counsel in their address also relied on Article 8.7.3 of carriage which reads thus: “Checked in luggage will normally be carried on the same aircraft as you, but it may be necessary sometimes for it to be carried in another aircraft (for example safety, health, security, operational reasons, or due to the size or weight of the checked luggage, or compliance with relevant parts of these conditions of carriage…” To counsel, the above contested condition is within the contemplation of the parties to the contract and are ipso facto bound by it. The defence counsel also cited and relied upon EXHIBIT “G” Nigeria Civil Aviation Regulations wherein it is stated that – “a passenger shall have a right to his/her luggage carried on the same flight that such passenger takes, subject to the consideration of safety, security, or any other legal and valid cause” Regulation 19.17.1 also states: “In case a checked-in luggage has been off-loaded for operational, safety or security reasons, the air carrier shall inform the passenger at the soonest practicable time and in such manner that the passenger will readily know of the offloading” Regulation 19.17.2 also states further that: “The air carrier shall carry the off-loaded luggage in the next flight with available space and deliver same to the passenger. The air carrier shall immediately tender in amount to the passenger, as compensation for the inconvenience the latter experience as follows –

• For domestic flights Five Thousand Naira (N5, 000)
• For international flights one hundred and fifty USD ($150)”

To the defence counsel, the above is what happened in the current case between the parties. Further, that the Plaintiff having not made any special declaration, his compensation if any is limited to 1,000 SDRs or equivalent of USD $1,405.00. On charges made on foreign currency, the defence counsel cited Section 4(4.1.1) (VII) of 2016/2017 Monetary policy Circular No 41 issued by the CBN to the effect that: “Payment for goods and services provided in Nigeria by resident companies and individuals shall not be made in foreign currency.” Counsel to the Plaintiff on the other hand argued that the Defendant owed the Plaintiff a duty of care to deliver the luggage promptly and in good condition. He submits that the Plaintiff received his bag 10 days later in bad condition. On the whole, the case or grievance of the Plaintiff was basically on the late delivery and the damage to his second bag only. DECISION OF THE COURT On the payment of compensation on foreign currency which the Defendant vehemently objected to, the Court relied on the case of Harka Air Services (Nig) Ltd V E. Keazor, Esq (20110 LPELR – 1353 (SC) and held that damages could be paid in foreign currency. On the issue of the late delivery of the Plaintiff’s second bag, the Court rejected the argument of the Defendant that the delay was due to some “operational reasons” because no evidence either oral or documentary was led to explain and prove same. All the Defendant did in the case is to admit liability but at the same time object to compensation, On the issue of damage to the bag, the Court found in favour of the Plaintiff because the Defendant never denied the fact that the bag got damaged neither did the Defendant cross examine the Plaintiff (PW1) in Court on the allegations of damage to his second luggage. All the defence counsel did was to cross examine the PW1 on the alleged lost items and their receipts. Now the Court looking at the claim of the Plaintiff came to the conclusion that the Plaintiff had proved his case on the late delivery of his luggage without any justification in line with the law and damage to the bag in contention and in the whole, in accordance with the Montreal Convention the Court held that the Plaintiff’s action succeeded and the following orders were made:

1. The sum of 1,131 SDRs or its dollar equivalent as compensation for the damage of the Plaintiff’s second bag.
2. The sum of 1,131 SDRs or its dollar equivalent as compensation for the delay in delivering the Plaintiff’s second bag.
3. General damages in the sum of $1,000 (One Thousand Dollars) for the breach of contract and negligence by the Defendant airline.
4. ₦25,000 (Twenty-Five Thousand Naira Only) for the car hire service engaged by the Plaintiff on the 28^th day of April, 2016 to retrieve the bag from the airport.
5. Cost of action in the sum of ₦1, 500, 000 (One Million Five Hundred Thousand Naira, Only).
6. Interest in the above stated sum at the rate of 21% per annum, from 18^th April 2016 till judgement and thereafter at the rate of 10% per annum till liquidation.

APPEARANCES   Kelvin A. Olu for the Plaintiff. Samuel Okunneye for the Defendant]]>