OGUNLEYE TOBI V THE STATE
April 8, 2025YAZIDU A. ALIYU & ANOR V ALH. MOHAMMED SANI ABDUL
April 9, 2025Legalpedia Citation: (2019) Legalpedia (SC) 85115
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Thu Jan 31, 2019
Suit Number: SC .488/2014
CORAM
PARTIES
MISS PROMISE MEKWUNYE APPELLANTS
EMIRATES AIRLINES RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant bought the Respondent’s airline return ticket for $2,067 USD to enable her travel from Dallas-Houston-Dubai -Lagos and back, through one Mr. Clement Dolor, an officer/employee of the Respondent at the Respondent’s office in Victoria Island, Lagos, seven months before her travel date. The said ticket was confirmed more than three (3) times before the Appellant’s travel date on the 17th December, 2007. The Appellant was however denied boarding when she presented the flight ticket for issuance of boarding pass, no reason was given to her; notwithstanding that same was earlier confirmed on three occasions. The Respondent cancelled the ticket without making an alternative plan for her. The Appellant purchased another ticket from American Airlines on 18th December, 2007 to enable her travel through a longer route. Consequently, an action was filed at the Federal High Court for breach of contract when all efforts to make a refund to the Appellant failed. The court in its judgment found that the Respondent’s refusal to carry the Appellant amounted to a breach of contract of carriage and that “No limitation to liability applies here”. The court ordered that the ticket refund to the Appellant should be in full without any deduction or charge 2.5 million being general damages and 250,000.00 as legal cost. Dissatisfied with the trial court’s judgment, the Respondent appealed as of right to the Court of Appeal contending that the learned trial judge erred in law when he awarded 250, 000.00 in legal fees when the Plaintiff claimed 1, 000,000.00 but led no evidence. The lower court upheld the appeal by the Respondent, upturned and set aside the award of 2, 500,000.00 (Two Million, Five Hundred Thousand Naira) general damages and ?250, 000.00(Two Hundred and Fifty Thousand Naira) cost of the action awarded by the trial court. The Appellant has appealed to this Court against the lower court’s decision.
HELD
Appeal Allowed
ISSUES
1. Whether the award of N2.5 Million as general damages for breach of contract by the trial court against the respondent qualifies and or amounts to a non-compensatory damages contrary to the provisions of the Montreal Convention and the terms of contract between the parties.
2. Whether the Court of Appeal was right to have held that the limitations as to damages claimable under a contract for the carriage of passengers, baggage and cargos provided in the Montreal Convention was applicable to this case Whether the award of N2.5 Million as general damages in addition to the refund of the tickets amounts to double compensation?
3. Whether the sum of N250,000.00 awarded by the lower trial Court as costs for the suit amounts to special damages and thus requires that there must strict proof of same? Whether the Court of Appeal has jurisdiction to have considered the issue raised by the Respondent herein to writ -appealing on ground of costs filed without leave of Court?
RATIONES DECIDENDI
GROUND OF APPEAL -STATUS OF A GROUND OF APPEAL RAISED AGAINST A NON-EXISTENT DECISION
“My learned brother, K. M. O. Kekere-Ekun, JCA (as she then was) cited with approval this trite principle, that a ground of appeal raised against a phantom or a non-existent decision is incompetent, in Hon. Olemija Stephen Friday & Ors. V. The Governor Of Ondo State & Anor. (2012) LPELR – 7886 (CA). I need only add that an appeal against a phantom or non-existent decision is an abuse of the Court’s process: R-Benkay Ltd. V. Cadbury Nig. Ltd (2012) LPELR – 7820 (SC)”.
APPEAL AS OF RIGHT – WHETHER AN APPEAL LIE AS OF RIGHT AGAINST AN AWARD OF COST BY A COURT OF LAW
“Attractive or seductive as this argument may appear to be it does not distinguish the facts of this case from the decision of this Court in Adewunmi v. Oketade (2010) 8 NWLR (Pt. 119563 (SC), citing with approval the previous decisions in Unifam Industries Ltd. v. Oceanic Bank International (Nig.) Ltd (2005) 3 NWLR (Pt. 911) 83 at 92 and Asim (Nig.) Ltd. v. Lower Benue River Basin Development Authority (2002) 8 NWLR (Pt. 769) 349, that it is trite that appeal does not lie as of right against an award of costs by a Court”.
LEAVE OF COURT – REQUIREMENT OF OBTAINING THE LEAVE OF COURT IN AN APPEAL AGAINST THE FAILURE OF A TRIAL COURT TO AWARD COST
“I completely endorse the statement of law on this by Ejiwunmi, JCA (as he then was) in A.C.B. v. Okonkwo (supra), to wit –
A party cannot appeal on failure of the High Court to award costs without first obtaining the leave of either the Court of Appeal or of the High Court. This is the requirement of Section 220(2)(C) of the 1979 Constitution. In this case, since the 1st Respondent did not obtain leave, the ground of appeal in the cross-appeal complaining against costs ought to be struck out and the issue formulated from it becomes a non-issue.
GENERAL DAMAGES – WHETHER GENERAL DAMAGES NEEDS TO BE SPECIFICALLY PLEADED AND STRICTLY PROVED
“For the Appellant it is further submitted, and I agree, that compensatory damages and general damages are the same. They are damages recoverable as payment for actual injury or economic loss. They do not include punitive or exemplary damages. In British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253 this Court held that general damages are compensatory damages. At page 286 of the Report Kekere-Ekun, JSC states it clearly –
General damages, such as the law presumes to be the natural and probable consequences of the Defendant’s act, need not be specifically pleaded. It arises by reference of law and need not therefore be strictly proved by evidence and may be availed generally.
GENERAL DAMAGES – MEANING AND NATURE OF GENERAL DAMAGES
“In the earlier decision of this Court, in UBN PLC v. Ajabule (2011) LPELR – 8239, per Fabiyi, JSC, stating that general damages are compensatory damages, states poignantly:
Generally damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need that not be alleged or proved. They need not be specifically claimed. They are also termed damages; necessary damages. See also Odiba v. Adzege (1998) 9 NWLR (Pt. 566) 370, Wahabi v. Omonuwa (1976) LPELR – 3469 (SC)”.
AWARD OF DAMAGES – BASIS FOR AN AWARD OF DAMAGES FOR BREACH OF CONTRACT
“Award of damages for breach of contract is based on resitutio in integrum. That is: in so far as the damages are not too remote, the Plaintiff should be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred: Gabriel Ativie v. Kabel Metel Nig. Ltd (2008) 10 NWLR (Pt. 1095) 399 (SC).”
AWARD OF DAMAGES – NATURE OF DAMAGES AWARDED FOR BREACH OF CONTRACT
“Damages which are natural and probable consequences of breach of contract are awardable as general damages: Mobil Oil (Nig.) Ltd v. Akinfosile (1969) 1 NMLR 227; Xtoudos Services Nig. Ltd & Anor v. Taisel (W.A) Ltd & Anor (2006) LPELR – 3504 (SC)”.
BREACH OF CONTRACT – WHETHER A PARTY IN BREACH OF A FUNDAMENTAL TERM OF CONTRACT CAN LIMIT HIS LIABILITY BY RESORTING TO EXCLUSIONARY CLAUSES
“It is settled from a number of decisions that a party in breach of a fundamental term of his contract with a third party will not be allowed to benefit from or resort to exclusion clauses: Pinnock Brothers V. Lewis & Peat Ltd (1956) 2 ALL E.R. 866; Adel Boshalli V. Allied Commercial Exporters Ltd (1961) ALL NLR 917 at 922; Owners Nv Gongola Hope V. S.C. (Nig). Ltd. The rationale for the principle is that a party who is guilty of breach of a fundamental term of contract could/should not benefit from his own wrong doing by resorting to exclusionary clauses in order to limit his liability. This is moreso, when a contract of carriage by air is brazenly breached and no explanation is offered, as in the instant case. In which case there is a total failure of consideration and the central purpose or essence of the contract has wholly disappeared. In such a situation, as Okey Achike JSC explained in his book: Nigerian Law Of Contract, at page 107, under the doctrine of fundamental term, the party guilty of breach of a fundamental term will not be availed clauses excluding his liabilities”.
COURT – WHETHER A COURT CAN AID A PARTY TO ESCAPE LIABILITY FOR HIS WRONG DOING
“No court of justice will aid the party in the wrong to escape his liability for his wrong doing. Tabai, JSC puts it thus in Teriba v. Adeyemo (2010) 11 NWLR (Pt. 1211) 242 at 263:
In its adjudication functions, the Court has a duty to prevent injustice in any given circumstance and avoid rendering a decision which enables a party to escape from his obligation under a contract by his own wrongful act or otherwise profit from his own wrongful act.
See also Engineering Enterprises v. A.G, Kaduna State (1987) 2 NWLR (Pt. 57) 381 at 419: Ugba v. Suswan (2014) 14 NWLR (Pt. 1427) 264 (SC) at 341; Harka Air Service (Nig) Ltd v. Keazor (2011) LPELR – 1353 (SC); Cameroon Airlines v. Otutizu (supra)”.
GENERAL DAMAGES – MEANING OF GENERAL DAMAGES
“General damages are monetary recovery in a law suit for injuries suffered such as pain, suffering, opportunity cost, economic loss suffered and inability to perform certain functions or breach of contract for which there is no exact monetary value which can be calculated. General damages are distinct from special damages which are specific costs and so is different from punitive (exemplary) damages for punishment when malice, interest or gross negligence was a factor and to punish the defendant for his conduct in inflicting that harm.
GENERAL DAMAGES – NATURE OF GENERAL DAMAGES
“I shall with humility reiterate that, general damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. A long line of cases -this Court have followed this line but I shall refer to a few. British Airways v Atoyebi (supra); Odiba v Azege (1998) 9 NWLR (Pt.566) 370; (1998) LPELR-2215, P. 15, paras. D-F (SC).
“The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages. Vindictive damages, even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like”.
PER MOHAMMED, JSC.
As per Kekere-Ekun JSC in the British Airways v Atoyebi (supra) at page 286:-
“General damages, such as the law presumes to be the natural and probable consequences of the defendant’s act need not be specifically pleaded. It arises by inference of law and need not therefore be strictly proved by evidence and may be availed generally”.
I further refer your Lordships to the following decisions of this Honourable Court to wit:-
Agunwa v Onukwe (1962) 1 All NLR 537; Shell B.P. v Cole (1978) 3 SC 183; W.A.E.C. v Koroye (1978) 2 SC 45; Renolds v Rokonoh 2005 10 MJSC 159”.
COMPENSATORY DAMAGES – WHAT ARE COMPENSATORY DAMAGES?
“Indeed, Compensatory Damages is the same as General Damages which is damages recovered in payment for actual injury or economic loss, which does not include punitive damages. A sum of money awarded in a civil action by a court to indemnify a person for the particular loss, detriment, or injury suffered as a result of the unlawful conduct of another. Compensatory damages provide a plaintiff with the monetary amount necessary to replace what was lost, and nothing more. Indeed, this Honourable Court has held in the British Airways v Atoyebi (supra) that general damages are compensatory damages. See also UBN Plc v Ajabule & Anor (2011) LPELR-8239 (supra)”.
EXEMPLARY DAMAGES – WHAT AMOUNTS TO PUNITIVE OR EXEMPLARY DAMAGES?
“On what amounts to punitive or exemplary damages, this was dealt with by the court in the case of Odiba v Azege (1998) LPELR-2215 (SC) at Page 25, thus:
“Exemplary damages, in particular, also known as punitive or vindictive damages can apply only where the conduct of the defendant merits punishment, and this may be considered to be so where such conduct is wanton, as where it discloses fraud, malice, cruelty, insolence or the like, or where he acts in contumelious disregard of the plaintiff’s rights. But exemplary damages, to some extent, are distinct from aggravated damages whereby the motives and conduct of the defendant aggravating the injury to the plaintiff would be taken into consideration in the assessment of compensatory damages”. Per Iguh JSC.
GENERAL DAMAGES – WHETHER GENERAL DAMAGES NEEDS TO BE SPECIFICALLY PROVED
“It follows that since general damages are meant -to compensate such class of injury or loss, she suffered from the wrongful and deliberate denial of boarding and it can be seen that general damages in that wise are naturally flowing from the act of the defendant and implied by law in the breach of contract that has ensued and so there is no need, for it to be specifically proved. See Wahabi v Omonuwa (1976) LPELR-3469 (SC) Page 17”.
AWARD OF DAMAGES – NATURE OF AN AWARD OF DAMAGES IN BREACH OF CONTRACT
“This is viewed within the precinct of the Supreme Court decision in Gabriel Ativie v Kabelmetal Nig. Limited (2008) 10 NWLR (Pt.1095) 399 per Onnoghen JSC (as he then was) thus:-
“Assessment of damages for breach of contract is based on the doctrine of restitution in integrum, which is to the effect that in so far as the damages are not too remote, a plaintiff should be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred. It is in line with the above principle that award of damages in breach of contract cases should be such as:
(a) may fairly and reasonably be expected to arise naturally, i.e. according to the usual course of things from such breach of contract itself; or
‘(b) may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it. Okongwu v N.N.P.C. (1989) 4 NWLR (Pt.115) 296”.
COURT – DUTY ON COURTS TO DO JUSTICE
“It is therefore in the maintenance of the spirit of justice that the court functions to do justice between parties to a dispute as anything short of that defeats that spirit of the law and constitution and so every wrong not the fault of a party should not be visited on the innocent party in whatever guise as the innocent victim must be atoned. See Ugba v Suswan (2014) 14 NWLR (Pt.1427) 264 at 341; Engineering Enterprises v A. G. Kaduna State (1987) 2 NWLR (Pt. 57) 381 at 419.
WILFUL MISCONDUCT – DEFINITION OF WILFUL MISCONDUCT
The concept of “wilful misconduct is defined in the English case of Horabin v BOAC (1952) 2 All ER 1016 at 1020 as follows: –
“Wilful misconduct is misconduct to which the will is a party and it is wholly different in kind from mere negligence or carelessness, however gross that negligence or carelessness may be …. To be guilty of wilful 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 considered in the light of that definition”.
DAMAGES – DISTINCTION BETWEEN GENERAL AND SPECIAL DAMAGES
“The clear distinction has to be made between general and special damages as the former lies in the fact that the court is entitled to presume or infer the injury as the plaintiff is not under any obligation to set out the particulars of general damages and specifically prove them while special damages are of a different kind being that which has to be specifically pleaded and proved. See Akinkugbe v Ewulum (2008) Vol.6 MJSC 134 at 146; S.P.D.C (Nig.) Ltd v Tiegbo VII (2005) 9 NWLR (Pt.931) 439”.
AWARD OF COST – INSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH AN AWARD OF COST BY THE TRIAL COURT
“The discretion of the trial court in awarding cost is one which the Court of Appeal ordinarily ought not to interfere with except and unless the award is manifestly excessive or too low. See the case of Admin v NBC Limited (2010) 9 NWLR (Pt.1200) 543 at 561 paras. F-G (SC); NITEL Ltd v Ikpi (2007) 8 NWLR (Pt.1035) 96. See also the case of Ekpeyong v Nyong (2003) 51 WNR 44; (1975) 2 SC 71 pages 80/81”.
CASES CITED
None
STATUTES REFERRED TO
1. Civil Aviation Act, 2006
2. Constitution of the Federal Republic of Nigeria 1999 (as amended)
3. Federal High Court (Civil Procedure) Rule 2009
