South Africa Airways V. Monday Ubani: Appeal Court Upholds Judgement Of Trial Court Against Airways, But Sets Aside 21% Pre-Judgment Interest On The Total Judgement Sum In Favour Of Respondents

IN THE COURT OF APPAEL HOLDEN AT LAGOS ON FRIDAY THE 26^TH DAY OF OCTOBER, 2018 BEFORE THEIR LORDSHIP: TOM SHAIBU YAKUBU ………………… JUSTICE, COURT OF APPEAL UGOCHUKWU ANTHONY OGAKWU … JUSTICE, COURT OF APPEAL GABRIEL OMONIYI KOLAWOLE………   JUSTICE, COURT OF APPEAL CA/L/670/2016 BETWEEN: SOUTH AFRICA AIRWAYS …………………………. APPELLANT AND

1. BARRISTER MONDAY O. UBANI ……………RESPONDENTS
2. FAUSTINA O. UBANI

JUDGMENT (DELIVERED BY TOM SHAIBU YAKUBU) The respondents, at the Federal High Court, Holden at Lagos, had obtained judgment against the appellants, on 27 March, 2015. The 1^st respondent is a Legal Practitioner and Notary Public whilst the 2^nd respondent, who is a business woman, is the wife of the 1^st Respondent. Both of them purchased tickets from the Appellant’s accredited agents for a holiday trip to South Africa and on their return leg of journey, boarded the Appellant’s flight No. 060 from Johannesburg, South Africa to Lagos, Nigeria. The said flight was an international carriage of passengers and goods. Prior to boarding the aircraft, the official of the appellant, weighed, accepted and checked in four big bags of luggage of the Respondents at Johannesburg Airport, having found that they were within the authorized weight limits, and consequently tagged the bags. Upon arrival in Lagos, Nigeria, the Respondent could only retrieve three (3) out of the four (4) bags that were checked in by the Appellant at Johannesburg and no explanation could be offered for the fourth bag. The Respondent immediately lodged a complaint with the officials of the Appellant in Lagos whereupon the Respondents were given for completion, the Appellant Form AW 59B, known as Property Irregularity Report (PIR). The Respondents were requested to check back the following day. The Respondents did check back the following day and many other days with phone calls both locally and internationally to South Africa, but the Appellant was unable to produce the said missing bag. The Respondents were subsequently given the Appellant’s Passenger Property Claim Form which the Respondents completed. On 14^th October 2005, the Respondents’ Lawyers wrote to the appellant demanding for the sum of R4, 888 being the cost of the items contained in the undelivered bag and for damages. The 1^st Respondent also reported the matter at the Ikeja Police Station on the same day 14^th October 2005. There was an attempt by the parties to settle the matter amicably out of court. It did not work out. The Respondents, therefore approached the court below and claimed the following reliefs as contained in the amended statement of claim thus:

• 1,131 Special Drawing Rights (SDRs) per each Plaintiff as valued at the time of judgment.
• The sum of (South Africa Rand) R4,888.00 being the cost of the items contained in their bags carried by the Defendants in its aircraft on flight SA 060 on 25^th September, 2005 but which bag was either stolen, misplaced or lost and which bag was not delivered to the Plaintiffs inspite of repeated demands to the effect.
• The sum of N75, 000.00 (Seventy Five Thousand Naira only) being the amount incurred by the Plaintiffs in their futile search for the stolen, misplaced or lost bag.
• The sum N1,000,000.00 (One Million Naira) as general damages for the embarrassment, harassment, mental agony, and emotional stress suffered by the Plaintiffs as a result of the Defendant’s negligence in failing to deliver the Plaintiffs’ baggage.
• The interest on the above sums at the rate of 21% per annum from 26^th September, 2005 until judgment and thereafter at the rate of 6% per annum until the final liquidation of the debt.
• Cost of this action assessed at N500, 000.00 (Five Hundred Thousand Naira) only.

The appellant denied the claim and filed an amended statement of defence. At the trial of the action, the 1^st respondent testified and through him, some documentary exhibits were admitted into evidence. The appellant did not proffer evidence, but nevertheless rested its case on the respondents’ case. Thereafter, learned counsel to the parties filed and exchanged their written addresses which were later adopted by them. The learned trial judge, in his judgment, found for the respondents and granted them some of the reliefs that they had claimed. The appellant irked by the decision against him appealed to this court, anchored on three grounds. The appellant in order to activate the prosecution of the appeal, was armed with the appellant’s brief of argument which was filed on 12 January, 2017 but deemed filed at the hearing of the appeal on 24^th September, 2018. The learned appellant’s counsel – F. Ajibola Dalley, Esq., who settled the appellant’s brief, nominated three issues for the determination of the appeal namely:

1. Whether the contract in this case is governed exclusively by the provisions of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw 1929) as amended by the Hague Protocol of 1958 adopted by and applied to Nigeria, prior to 14^th November 2006, by the Carriage by Air (Colonies Protectorates and Trust Territories) Order in Council 1953 ( hereinafter called the Convention) and if so bearing in mind the provisions of Article 22 (2) whether the Respondents are entitled to “1,131 special Drawing Rights (SDRs) per Respondent as valued at the time of judgment” (Distilled from Ground 2)
2. Whether the Trial Judge erred in law and occasioned a miscarriage of Justice when his Lordship held that the Respondents are entitled to interest at the rate of 21% per annum from 26^th September 2005 until the date of Judgment. (Distilled from Ground 2)
3. Whether the Trial Judge rightly awarded the respondent’s the sum of =N=650,000.00 (Six Hundred and Fifty Thousand Naira) as General Damages. ( Distilled from Ground 3)

The respondents’ brief of argument settled by M.O. Ubani, Esq; dated 17^th February, 2007 but filed on 20^th February, 2017 was deemed filed on 24^th September, 2018. In it, two issues were identified for the resolution of the appeal, to wit:

1. Whether the learned trial Judge erred in law by determining the Respondent’s suit based on the Warsaw Convention 1929 as amended at Hague, 1955, and by protocol No. 4 of Montreal 1975; and computing the Appellant’s liability based on 23KG for one lost baggage.
2. Whether the learned trial Judge erred in law when he awarded the sum of N650, 000 (Six Hundred and Fifty Thousand Naira) as damages for breach of contract of bailment, as well as interest on the total sums awarded against the appellant.

Upon my perusal of the judgment of the learned trial Judge vis-à-vis the grounds of appeal against it and the issues suggested by each counsel herein, I feel impelled to adopt the two issues nominated by the respondents in my consideration and determination of this appeal. Appellant’s Arguments: The main thrust of the counsel to the appellant’s contentions is that in applying the provisions of the Warsaw Convention where there are allegations  of actual loss of baggage in the course of international travel by air, the National Courts must firstly, be satisfied that actual loss has been proven, and once such loss is proven, award sums in accordance with the limitation as set out in Article 22 (2) of the Convention, unless the passenger or consignor has specially, at the time of handing over the goods to the carrier, declared the value of same and paid a supplementary sum if required. It is therefore clear that it is only when a passenger can prove that at the time of handing over the goods to the carrier, in this case the Appellant that he declared the value of same and paid a supplementary sum under the proviso of Article 22 (2) of the Convention that he or she can cast off the shackle of the limits of Article 22 (2) and seek the highest compensation otherwise available under the laws of the Court seised of his or her case. He submitted that the Trial Judge had held thus that indeed: “The Respondents did not make special declaration of items at the point of checking in as PW1 on 22^nd October, 2014 under cross examination. This is however a condition precedent to removing the limitation to the carriers liability under the convention. Since the Respondents neither declared the content of the missing baggage nor paid a supplementary sum in respect of same, they are not entitled to award of sums in excesses of what is prescribed by the convention” He therefore further submit with respect to the exclusivity of the Convention, unless the Respondents herein satisfy the condition precedent to claiming at large being the declaration of the value of the baggage and payment of the mandatory supplementary sum upon declaration, the Respondents cannot invoke the jurisdiction of the Court to award sums in excess of limited sums prescribed by the Convention and is therefore unable to ground the claims sought. He further insisted at paragraphs 445-452 of the appellant’s brief to the effect that in order to ground a claim at large; beyond the limited sums stipulated in the Convention for lost baggage, the Respondents is saddled with the onus of satisfying the three conjunction tests set out above. In applying the three pronged test, the Respondents made no special declaration and evinced same before the Court, particularly in view of the fact that oral declarations are not recognized by the Courts (See Cameroon Airlines v. Abdul Kareem (2003) II NWLR Part 830 CA I at Page 23-24 Paragraph B). Similarly, there is no evidence of payment of a supplementary sum. Indeed, PWI had in the course of Cross Examination admitted that he neither declared the contents of the alleged missing baggage nor paid a supplementary sum in respect of same. He therefore submitted that bearing the above in mind the learned trial Judge was, mandated to invoke the provisions of Article 22 (2) and accordingly impose the limitation. And that upon invoking the limitation clause under Article 22 (2) the Courts are permitted to award the limited sum upon the strict condition of proof of actual loss of baggage, at the rate of 250 fancs per Kilogram of baggage. Furthermore, he submitted that in the light of the fact that the Claim must, be decided under the Warsaw Convention, being the applicable law and bearing in mind the inability of the Respondents to establish loss of baggage under Article 22 (2) of the Warsaw convention His Lordship ought to have held that the Respondents failed to establish their claims for the sum of 1,131 Special Drawing Rights (SDRs) or indeed any sum whatsoever. Arguing his issues 2 and 3 which are the same with the respondents’ issue 2, he submitted that the learned trial Judge, after granting some of the respondents’ reliefs under the Warsaw Convention, also awarded general damages in the sum of Six Hundred and Fifty Thousand Naira (N650, 000.00), which is tantamount to double compensation and not cognizable under the Convention. Furthermore, he submitted that the award of pre- judgment interest at the rate of 21% per annum 26th September, 2005, until the date of judgment by the learned trial Judge was in error because the parties never agreed expressly on payment of such interest nor was there any provision by statute or custom governing the transaction. He referred to several decisions of this court which relied mainly on Ekwunife v. Wayne W/A Ltd. (1989) 5 NWLR (Pt. 122) 422, to the effect that pre- judgment interest must be pleaded and proved by the claimant which the respondents did not do in the instant matter. Respondents’ Arguments:   The respondents’ learned counsel, arguing his issue 1, submitted that since the evidence proffered by the respondents’ witness was not controverted to the effect that out of the four bags which were checked in for carriage by air by the appellant from Johannesburg South Africa to Lagos for the respondents, one of those bags was lost due to the negligence of the appellant was duly established and that this is more so as the appellant, did not proffer any evidence in support of its pleadings in the amended statement of defence. Hence according to him the onus on the respondents’ to prove their claim was discharged on minimal proof. He referred to Broadline Enterprise Ltd v. Monterey Maritime Corporation (1995) 10 SCNJ 1. With respect to the liability of the appellant, in the circumstances of this case which ordinarily should have been limited to sum of 250 francs (17 Special Drawing Rights SDRs) per kilogram, the fact that the respondents did not know the total weight of the lost bag, cannot deny them of their rights under the Convention. He insisted that in the circumstances of the instant matter, the learned trial judge was right when he held that the liability of the appellant for the respondents’ lost bag be computed based on the maximum limit of 23 kg since the respondents flew in the economy class on the flight in question. Arguing his issue 2, respondents learned counsel submitted to the effect that since the respondents had suffered some embarrassment, harassment, mental agony and emotional stress on account of the loss of their luggage because of the appellant’s negligence, they were entitled to damages. He relied on Harka Air Service Ltd v. Keazor (2006) 1 NWLR (Pt. 960) 160. He also placed reliance on Cameroon Airlines v. Abdul Kareem (2003) 11 NWLR (Pt. 830) 1 @ pp. 18-20 and submitted that the said authority did not decide to the effect that the trial judge in that case was wrong to have relied on rules of common law, in awarding general damages in that case. He insisted that whereas the award of 23 kg as the appellant’s liability for the loss of respondents’ one bag which was in special damages; the award of the sum of N650, 000.00, was for general damages and the two awards did not amount to double compensation. With respect to award of pre- judgment interest in favour of the respondents, he submitted that the fact that the appellant denied the respondents, of the use of the monetary value of the contents of the lost bag worth R4, 888 since 2005, the learned trial judge rightly awarded 21% interest per annum from 26^th September, 2005 until the date of judgment. Resolution of issues: The dispute between the parties, to my mind, is not as complex as it has been portrayed by learned counsel herein. The question with respect to the application of the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air, 1929, as amended by the Hague Protocol of 1955, to the action of the respondents was resolved by the learned trial judge at 388-390 of record of appeal, thus: “As to whether the plaintiff are entitled to the reliefs sought, this Court has already held that the loss of the Plaintiffs’ bag while in the defendant’s possession is prima facie evidence of negligence against the Defendant, who is  thus liable for the Plaintiffs’ baggage it received. What is left to be resolved however is whether the Plaintiffs based on the facts and circumstances of this case are entitled to all the reliefs they have sought and which Convention should govern award of damages to the Plaintiffs for the loss of one bag. It is now settled that in general, the law governing international carriage by air is the Warsaw Convention. See IBIDAPO vs LUFTHANSA AIRLINE (1997) 4 NWLR (PT. 498 SC 124; CAMEROON AIRLINES VS. ABDUL KAREEM (2003) 11 NWLR (PT.830) C.A. 1; CAMEROON AIRLINES VS. OTITUIZU (2011) 4 NWLR (PT. 1238) 512. Therefore, for liability to be at large in respect of carriage of goods by air, it must be shown that the damage was caused by willful misconduct as provided for under Article 25 of the Convention. There is however a qualification that it is not sufficient for the act or omission that it is to be relied on to have been done recklessly. See CAMEROON AIRLINES VS. ABDUL KAREEM (SUPRA, AT PP 22- 23, D-A). It is obvious from this statement of the law that a negligent act such as in the present case of loss of the Plaintiffs’ bag cannot by that fact constitute willful misconduct. See CAMEROON AIRLINES VS ABDUL KAREEM (Supra, at pp. 22-23, Paras G-A) This in effect means that it is the Warsaw Convention that is properly applicable to the Plaintiffs’ claim. Another constraining fact against the Defendant’s liability in this present case being at large is that the Plaintiffs did not make special declaration of items at the point of checking in, as stated by PW1 on 22^nd October, 2014 under cross examination. This is however a condition precedent to removing the limitation to the carrier’s liability under the Convention. Since the Plaintiffs neither declared the contents of the missing baggage nor paid a supplementary sum in respect of same, they are not entitled to award of sums in excess of what is prescribed by the Convention. In this respect, it is trite law that damages for actions under carriage by air are computed based on the weight of the passenger’s luggages. In the instant case, the specific weights of the Plaintiff’s checked-in luggages and more particularly, the missing bag has not been furnished. However, given the peculiar circumstances of this case, the Court shall accord the plaintiffs the benefit of placing the weight of their missing baggage at 23kg, which is stated to be maximum weight limit allowance for economy class passengers. Therefore, the Defendant’s liability will be computed based on 23kg for one lost baggage. That settles claim 1) of the plaintiffs”. The appellant’s grouse with the finding of the learned trial judge seems to be that the said finding does not demonstrate convincingly a holistic application of the rules of the Convention, in determining the liability of the appellant for the loss of the respondents’ one bag. The appellant’s contention is that in determining the liability of the appellant in this matter, the learned trial judge did not bear in mind, the rule or provision in Article 22 (2) of the Convention, when he awarded 1, 131 Special Drawing Rights (SDRs) in favour of the respondents. This according to him, is so because the respondents did not establish by their pleading and evidence, the weight of their missing bag. Arguing per contra, the respondents insisted that although the weight of the lost bag, was not proved by them, they were entitled to be compensated for the loss by the appellant. Both counsel relied on our decision in Cameroon Airline Ltd v. Abdul Kareem, Supra, which was referred to by the Supreme Court more recently in Cameroon Airlines v. Otituizu (2011) 4 NWLR (Pt. 1238) 512 at 539; (2011) LPELR- 827 (SC) at pages 28-29 thereof, to the effect that the liability of an Airline which caused a willful misconduct to the detriment of a passenger, is not excluded under Article 22 (1) & (2) of the Convention by virtue of Article 25 of the Convention. Further see Oshivere v. British Caledonia Airways Ltd (1990) 7 NWLR (PT. 163) 507. In the instant case, the learned trial judge, found that the appellant was negligent, but that did not mean that it was a willful misconduct to make the appellant lose the exclusion from liability under Article 22 (2) of the Convention. His Lordship had so rightly found, earlier in his judgment. I think that the justice of the case was served when His Lordship held that the appellant’s liability was to be computed based on 23kg as the maximum weight limit allowable for the lost bag of the respondents who were economy class passengers of the appellant on the flight from Johannesburg to Lagos. I agree with that reasoning, because I am satisfied that it is fair and square. The other complaint of the appellant, is with respect to the award of general damages in the sum of N650, 000.0 (Six Hundred and Fifty Thousand Naira) to the respondents. The learned trial judge had restated the correct position of law at pages 391-392 of the record of appeal, inter alia: “This claim is founded on breach of contract of bailment. The law is settled that where one party has broken a contract, the damages which the other party ought to received for such breach is such as may fairly and reasonably be considered either as flowing naturally, that is, according to the usual course of things from the breach of contract itself, or as may reasonably be supposed to have been in the contemplation of both parties at the time they entered into the contract as the probable result of the breach of it. It has been also held that the purpose of award of damages for breach of contract is to put the party whose right have been adversely affected in the same position so far as money can do, as if his right had been observed. See NBCI VS INTEGRATED GAS (NIG) LTD. (1999) 8 NWLR (PT. 613)119 AT P.130 PARA F-H.T Taking all necessary factors into consideration in this instant case, the Plaintiffs are awarded N650, 000.00 (Six Hundred and Fifty Thousand Naira) as general damages against the Defendant”. The law is no longer recondite, as it has been well settled to the effect that award of general damages is permissible in all matters which border on breach of contract on the principle of restitutuo in interregnum, that is, in so far as the damages are not remote, the Plaintiff shall be restored as for as the damages are not 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. Okongwu v. Nigerian National Petroleum Corporation (1989) 4 NWLR (PT. 115) 296; Oshin Ltd v. Livestock Feed Ltd (1992) 2 NWLR (Pt. 486) 162; Udeagu v. Benue Cement Co Plc (2006) 2 NWLR (Pt. 965) 600. In the instant case, it cannot be reasonably said that the respondents, did not suffer any emotional trauma, anxiety and embarrassment when upon their return from a holiday trip where they had purchased some dresses and some other valuable items for their children, friends and themselves which they kept in a particular bag and could not find it on their return to their home country. The respondents in such circumstances, having established the appellant’s default or negligence were clearly entitled to be compensated by the award of general damages. I do not agree with the appellant’s contention that the award of the aforementioned general damages to the respondents in addition to the award of the first head of their claim was tantamount to double compensation. I do not agree too with the contention that general damages are not awarded in deserving situations in claims that border on the applicability of the Warsaw Convention. Cameroon Airlines v. Otituizu, Supra. With respect to the appellant’s contention relating to the award of pre-judgment interest, the law is well settled and crystallized in several decided authorities to the effect that the facts upon which such claims are anchored must be pleaded and hard evidence must also be led on them successfully by the claimant before he is entitled to such an award. In other words, pre-judgment interest is not granted as a matter of course. For it to be awarded, it must be shown that it was in the contemplation of the parties or it was for by statute or under a mercantile custom and under the principle of equity such as a breach of any fiduciary relationship between the parties. Ekwunife v. Wayne W/A (1989)5 NWLR (Pt. 122) 422 @ 445; Berliet Nig. Ltd v. Kachalla (1999) 9 NWLR (Pt. 420) 478; Idakula v. Richards (2001) 1 NWLR (pt. 693) 111 122. The award of 21% pre- judgment interest on the total judgment sum in favour of the respondents, in the instant matter, has no basis in this case. It is accordingly, set aside. In sum, with the exception of the award of 21% pre-judgment made in favour of the respondents, the appeal is hereby dismissed. Each side to bear own costs of the appeal. TOM SHAIBU YAKUBU JUSTICE, COURT OFAPPEAL COUNSEL REPRESENTATION: F.AJIBOLA DALLEY, ESQ., WITH MISS W.A. ESAN FOR APPELLANT. J.O.IGWE ESQ., WITH S.O. ABIODUN ESQ., FOR RESPONDENTS. CA/L/670/2016 (UGOCHUKWU ANTHONY OGAKWU, JCA) I have had the privilege of reading in draft the leading judgment just delivered by my learned brother, Tom Shaibu Yakubu, JCA and I agree that there is no substance in this appeal and that the same should be dismissed. For the same reasons set out in the said judgment, I too, dismiss this appeal in the terms set out in the leading judgment. I abide by the consequential orders including those as to costs therein contained. Appeal dismissed. UGOCHUKWU ANTHONY OGAKWU JUSTICE, COURT OF APPEAL CA/L/670/2016 GABRIEL OMONIYI KOLAWOLE I have had the privilege of reading in draft, the lead judgment delivered by my learned brother, TOM SHAIBU YAKUBU, JCA. I am in total agreement with the analysis of the facts of this appeal and the application of extant protocols and legislation. The reasoning and conclusions reached, are in my view, in accordance with the extant judicial decisions with regard to claims arising from international carriage of goods and passengers by air. The Respondents having been awarded general damages, ought not to retain the award of interest on the judgment sum as that will be contrary to the provisions and tenor of the Montreal Convention for claims attributable to loss of baggage in contract of international carriage of goods and passengers by air. I agree that the appeal lacks merit and ought to be dismissed. GABRIEL OMONIYI KOLAWOLE JUSTICE, COURT OF APPEAL]]>