Legalpedia Citation: (2023-07) Legalpedia 80926 (CA)

In the Court of Appeal

Holden at Lagos

Fri Jul 14, 2023

Suit Number: CA/L/1058/2013

CORAM

JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL

FREDRICK OZIAKPONO OHO JUSTICE, COURT OF APPEAL

ABUBAKAR SADIQ UMAR JUSTICE, COURT OF APPEAL

PARTIES

AERO CONTRACTORS COMPANY OF NIG. LTD

 

APPELLANTS

1. OYENIYI DARAMOLA

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, AVIATION, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE, TORT

SUMMARY OF FACTS

The Respondent as complainant at the trial court instituted the action against the Appellant for negligence and breach of contract. The Respondent claimed that his bag was damaged and this occasioned the loss/damage of his laptop and consequently the loss of important data research data. He prayed the trial court to award the sum of N2,000,000.00 being damages for inconvenience and psychological and emotional trauma occasioned by the said loss and the sum of N4,000,000.00 being specific damages of the research information and data lost, loss of use and the expenses the plaintiff has put to sourcing for information/research data. The learned trial Judge found in favor of the Respondent that damage to the bag took place during the period within which the checked baggage (including personal items) was in the custody of the Appellant and damages resulted as a result of the negligence of the Appellants servants and proceeded to award damages against the Appellant. Aggrieved by the decision, the Appellant filed the instant appeal.

HELD

Appeal allowed in part

ISSUES

Whether the lower court properly evaluated the evidence presented by the parties before arriving at the decision?

RATIONES DECIDENDI

TORT – MEANING OF TORT

A tort is the breach of duty to take care imposed by common law or statute law, resulting in damages to the complainant. – Per A. S. Umar, JCA

TORT OF NEGLIGENCE – MEANING OF TORT OF NEGLIGENCE

The tort of negligence is traditionally described as damage which is not remote, caused by a breach of duty of care owed by the Appellant to the Respondent see: IITA vs. AMRANI (1994) 3 NWLR (PT 332) 296 AT 311. – Per A. S. Umar, JCA

NEGLIGENCE – WHEN THE TORT OF NEGLIGENCE ARISES – CONDITIONS TO SUCCEED IN AN ACTION FOR NEGLIGENCE

It is pertinent at this juncture to reiterate that the general principle of law regarding the tort of negligence is that it arises when a legal duty of care owed by the defendant to the plaintiff is breached. To succeed in action for negligence, the plaintiff must prove by preponderance of evidence or the balance of probabilities that-

1. The defendant owed him a duty of care

1. The duty of care was breached

iii.  The defendant suffered damages arising from the breach.   – Per A. S. Umar, JCA

EXCLUSION CLAUSE – MEANING OF EXCLUSION CLAUSE

An exclusion clause in a statute is that which prohibits or nullifies the operation of a particular provision of the statute. An exclusion clause therefore must be clear and specific as to what it excludes, prohibits or nullifies. Where a section of a statute or contract is in conflict with another, neither section operates as an exclusion clause to the other- PETERS vs. DAVID (1995) NWLR (PT 603) 486 at 497 (CA). – Per A. S. Umar, JCA

EVIDENCE – THE RELATIONSHIP BETWEEN PLEADINGS AND EVIDENCE

I do not need to over labor or stretched long this elementary law, because it is clear that pleadings do not constitute evidence in law. Both pleadings and evidence are like Siemens twins that though separate but conjoined and one cannot do without the other because they are somewhat complimentary. They must at times work together. In other words, an averment in pleadings is not an evidence and can never be so construed. Pleadings are written allegations of parties which comprehensively presents the material facts and highlights the issues between the parties to an action which is cemented by evidence.  – Per A. S. Umar, JCA

DOCUMENTARY EVIDENCE – INADMISSIBLE DOCUMENTARY EVIDENCE AND WHEN IT MAY BECOME ADMISSIBLE

The importance of documentary evidence in a legal proceeding cannot be over-emphasized. They serve as the best form of evidence in proof of a party’s claim before the Court. A document will be admissible in evidence only if it is admissible in law and it is relevant to the facts in issue.  The general position of the law is that a document that fails the test of admissibility becomes inadmissible in evidence and will not be reckoned with in determining any issue for consideration before the Court.

 

However, the exception to this rule is that documents rendered inadmissible in a particular suit do not become utterly useless and same may be admissible in prove of a separate purpose in the proceedings. This is an exception to the absoluteness of this general principle. – Per A. S. Umar, JCA

PLEADING – WHEN A PLEADING IS NOT CONSUMMATED BY

A pleading not consummated by evidence is worthless. It is like dumping a process on the court without action. The same applies to rejected evidence in deserving circumstances. The learned trial judge was therefore wrong to have relied on rejected Exhibits in assessment of specific damages.  – Per A. S. Umar, JCA

DAMAGES – CONDUCT OF COURT IN AWARDING COMPENSATORY DAMAGES AND GENERAL DAMAGES

In tort law, compensatory damage, also known as Actual damages, are damages awarded by a court equivalent to the loss a party suffered and it is based on proven harm, loss, or injury suffered by the plaintiff. To receive compensatory damages, the plaintiff has to prove that a loss occurred and that it was attributed to the defendant. As for general damages, it needs not be pleaded and proved because it is based on the discretion of the court, which is based on what is considered adequate loss or inconvenience by a reasonable person which flows naturally, as generally presumed by the law from acts of the defendant. It does not depend on calculations made or figures arrived at from the specific items. See YALAJU-AMAYE vs. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD (1990) LPERL (3511) I AT 47; ROCKONOH PROPERTY CO LTD vs. NITEL PLC (2001) LPELR (2951) 1 AT 12  – Per A. S. Umar, JCA

GENERAL DAMAGES – CONDUCT OF COURTS IN ASSESSMENT OF QUANTUM OF GENERAL DAMAGES

Assessment of quantum of general damages is at the discretion of the court. The attitude of this court is to refrain from interfering with the exercise of that discretion in absence of proof that it was wrongly exercised except:

1. Where the court acted under wrong principles of the law

1. Where the court acted in disregard of applicable principles of law.

1. Where the court acted in the misapprehension of the facts

1. Where the court took into consideration irrelevant maters and disregard relevant matters while considering its award.

1. Where injustice will result if the Appellant Court does not act

1. Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of damages. – Per A. S. Umar, JCA

CASES CITED

STATUTES REFERRED TO

1. IATA General Conditions of Carriage (passenger) 1970
2. Civil Aviation Act
3. Montreal Convention of 1999

CLICK HERE TO READ FULL JUDGMENT