➥ CASE SUMMARY OF:
Emirate Airline v. Tochukwu Aforka & Tobest Inv. Co. (2014) – CA
by PipAr Chima
Court of Appeal – CA/L/285/2011
➥ JUDGEMENT DELIVERED ON:
Friday, the 11th day of April, 2014
➥ AREA(S) OF LAW
Lost of freight goods;
Res ipsa loquitur;
➥ NOTABLE DICTA
⦿ LIABILITY BEGINS ONCE THE CARRIER TAKES CONTROL OF THE CARGO
The fact that the cargo has not been air lifted is consequently of no moment. Once the carrier has taken control of the cargo and issued the airway bill, any loss from then on is covered by the Convention and the limitation of liability clause subject to the stated exceptions as provided in the Convention. – Iyizoba, JCA
⦿ WILLFUL MISCONDUCT DOES NOT APPLY IN CASE OF LOSS OF CARGO
The concept of negligence or willful misconduct obviously cannot work in the case of loss of cargo. It is difficult to prove willful misconduct as the Plaintiff is not in a position to know how the loss came about and no help is likely to come from the carrier in that regard. That must be why carriage of cargo was excluded in the provisions. – Iyizoba, JCA.
⦿ WITHOUT CROSS-APPEAL OR RESPONDENT NOTICE, RESPONDENT CANNOT CHALLENGE TRIAL COURT’S JUDGMENT
It appears then that what the Respondent is asking for is a variation of the judgment of the lower court with regard to damages and the award by this court of “appropriate and commensurate damages.” The law is that the Respondents cannot challenge the judgment of the lower court given in their favour without first filing a cross-appeal or a Respondents Notice. See Oguma v. I.B.W.A. (1988) NWLR (Pt. 73) 658. – Iyizoba, JCA
⦿ TWO WAYS RES IPSA LOQUITUR MAY BE PLEADED
As regards the doctrine of res ipsa loquitor, it can be pleaded in one of two ways – either specifically by reciting the Latin maxim or in the alternative by making it known that the Plaintiff intends to rely on the very loss of the cargo as evidence of negligence. – Iyizoba, JCA
➥ LEAD JUDGEMENT DELIVERED BY:
Chinwe Eugenia Iyizoba, J.C.A.
⦿ FOR THE APPELLANT
Ike Nwachukwu Esq.
⦿ FOR THE RESPONDENT
Michael Aboh Esq.
➥ CASE HISTORY
This is an appeal against the judgment of Archibong J. of the Federal High Court, Lagos in SUIT No: FHC/L/CS/127/2008 delivered on the 29th day of November, 2010. The Respondents sometime in August 2007 purchased some ink cartridges through their agent in Dubai. The agent approached the Appellant and contracted the airline to airfreight the goods to Murtala Mohammed Airport, Lagos. The goods were packed in 18 bags with a total weight of 880kg. The goods were to arrive within a month from the date the freight was paid for. The goods never got to Lagos. The Respondents as Plaintiffs instituted an action against the Appellant as Defendant for breach of contract
In their statement of Defence at page 185 of the Record, the Defendant admitted failure to deliver the goods but contended that the conditions governing the contract of carriage of the Plaintiff’s cargo and the liability of the Defendant are as contained in Emirates General Conditions for Carriage of Cargo 2006 and the Montreal Convention 1999; in line with which the Defendant had offered the Plaintiff compensation for the lost goods. The offer was turned down and the plaintiff chose to institute this action.
The trial Court in its judgment held that the non delivery of the Plaintiff’s cargo amounts to a breach of its contract of carriage with the Plaintiffs and that no limitation of liability applies to the contract and therefore awarded to the Plaintiff (i) The sum of 29,319 Dirham for complete failure and/breach of contract by the Defendant; (ii) N5 Million in general damages, and further held that because the goods did not leave Dubai, the terms of the contract of carriage did not apply.
The Defendant now appeals.
➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED, IN PART]
I. Whether the limitation of liability as contained in the Montreal Convention and the Conditions of Carriage of Cargo of the Defendant is applicable in the circumstances of this case?
RULING: IN APPELLANT’S FAVOUR.
A. Article 30 Montreal Convention provides: “Save in respect of the carriage of cargo, the provisions of paragraph 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage recklessly and with knowledge that damage would probably result.” By these provisions negligence or willful misconduct seem to play no role in the case of carriage of cargo under the Montreal Convention. The learned trial Judge was consequently wrong in holding that there was no limitation of liability because the appellant was unable to rebut the presumption of negligence or the doctrine of res ipsa loquitor.
B. There it was held that to be able to award damages at large, it is not enough to show that the damage was done intentionally or recklessly, it must also be shown that the carrier had knowledge that damage would probably result. This obviously is a tall order. The case is in my humble opinion authority for the view that the claimant cannot hide under the doctrine of res ipsa loquitor. He must plead and prove the act that amounted to negligence or willful misconduct and must go further to plead and prove knowledge that damage would result. The burden is squarely on the Claimant to prove negligence and not on the carrier to rebut negligence.
C. It is my view that the special declaration envisaged in Article 22(3) means more than just presentation of the sales invoice and the packing list. The declaration of value ought to be in writing on the airway bill. DW1 in Re-examination had stated categorically that they rely on the Airway Bill and that no value was declared on it. In the case of Rembrandt Jewellery v. Air Canada (1985) O.J. No. 1382, it was held that a verbal statement of value made on the telephone is not a special declaration of value within the meaning of the convention. There is consequently no convincing evidence that the Respondent made a special declaration of the value of the goods. The limitation of liability as contained in the Montreal Convention and the Conditions of Carriage of Cargo of the Defendant is applicable in the circumstances of this case.
II. Whether a Court can award General damages and also Special damages at the same time?
RULING: IN APPELLANT’S FAVOUR.
A. From the pleadings and evidence led in this case there is no justification or basis for the award of 29,319 UAE Dirham by the learned trial Judge. But the figure cannot be varied as prayed for by the Respondent because the Respondents are not entitled to the sum of 351,100 UAE Dirham being the value of the eighteen (18) missing ink Cartridges since the limitation of liability under the Montreal Convention is applicable. Their entitlement would be in accordance with what is laid down in Section 22(3) of the Montreal Convention since there was no special declaration of the value of the cargo. They are also entitled to be paid back the freight charges of 11,675.00 UAE Dirham which was properly pleaded and relevant receipts tendered.
III. Whether a court can base its judgment on facts that were neither pleaded nor on which no evidence was adduced in the course of trial?
RULING: IN APPELLANT’S FAVOUR.
A. But for Article 22 (5) to apply to remove the limitation of liability it is not sufficient for the act or omission that is relied on to have been done negligently or recklessly; it must also be shown to have been done with knowledge that damage would probably result. It is quite impossible to show through the doctrine of res ipsa loquitor that the Defendant did the act that gave rise to the loss with knowledge that the loss would occur.
B. These matters have already been fully considered under issue one. The fact is that the particulars of negligence as pleaded are not adequate. But the issue is of no consequence in view of my conclusion that Article 22 (5) does not apply to carriage of cargo. To that extent, the learned trial Judge erred in the conclusions arrived at with respect to negligence and res ipsa loquitor. There were no sufficient pleading to justify his views and conclusions.
➥ MISCELLANEOUS POINTS
In its place, the Respondent is awarded the sum limited by the Montreal Convention, that is 880 kilograms, the weight of the lost cargo multiplied by the dollar value of 17 Special Drawing Rights; as well as the sum of 11,675.00 UAE Dirham paid for freight and duly receipted. Both sums are to be paid with interest at the rate of 7-1/2% per annum until the entire sum is fully liquidated. I make no order as to costs.
➥ REFERENCED (STATUTE)
Article 29 of Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May, 1999);
Article 22 Warsaw Convention;
Section 22(3), 29, 30, Montreal Convention;
Section 48(1) Civil Aviation Act;
➥ REFERENCED (CASE)
⦿ FILE RESPONDENT’S NOTICE WHEN JUDGMENT TO BE AFFIRMED ON OTHER GROUNDS
Ejura v. Idris (2006) 4 NWLR (Pt. 971) 538 @ 564-565 F-A the Court of appeal per Rhodes-Vivour, J.C.A. (as he then was) observed: When a respondent agrees with the judgment appealed against but at the same time wants the judgment varied or affirmed on other grounds, he is duty bound to file a respondent’s notice … On the other hand, an appeal filed by a respondent is a cross appeal, and it is filed to correct an error, which if left to remain would be of a disadvantage to the respondent in the main appeal. It is also filed in situations where the Respondent seeks a reversal of the decision of the trial court. (Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt. 271) 517; Eliochin (Nig.) Ltd v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; New Nigeria Bank Plc. v. Egun (2001) 7 NWLR (Pt. 711) 1.
⦿ COURT CANNOT PARTY THAT WHICH HE DID NOT CLAIM
Badmus v. Abegunde (1999) 11 NWLR (Pt. 627) 493, Onu, J.S.C. observed: “It is trite law that the court is without power to award to a claimant that which he did not claim. This principle of law has time and again, been stated and re-stated by this court that it seems to me that there is no longer any need to cite authorities in support of it. We take the view that the proposition of the law is not only good law but good sense. A court of law may award less, and not more than what the parties have claimed. A fortiori, the court should never award that which was not claimed or pleaded by either party. It should always be borne in mind that a Court of Law is not a charitable institution, its duty in civil cases is to render unto every one according to his proven claim.”
➥ REFERENCED (OTHERS)