EMIRATE AIRLINE V TOCHUKWU AFORKA & ANOR

CORAM

PARTIES

EMIRATE AIRLINE APPELLANTS

1. TOCHUKWU AFORKA

2. TOBEST INVESTMENT COMPANY LIMITED

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Respondents 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 to arrive within a month from the date the freight was paid for but the goods never got to Lagos. The Respondents as Plaintiffs instituted an action against the Appellant as Defendant for breach of contract. 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 which was refused. Judgment was entered against the Defendant. Dissatisfied with the judgment, the Defendant/Appellant has lodged the instant appeal.

HELD

Appeal Allowed

ISSUES

1. 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?

2. Whether a Court can award General damages and also Special damages at the same time?

3. 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?

RATIONES DECIDENDI

NEGLIGENCE-BURDEN OF PROOF- ON WHO LIES

“The burden is squarely on the Claimant to prove negligence and not on the carrier to rebut negligence.” PER IYIZOBA, JCA

ARTICLE 22(5) OF THE MONTREAL CONVENTION – APPLICABILITY OF

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.” PER IYIZOBA, JCA

DAMAGE OR LOSS OF CARGO- REQUIREMENT FOR ESCAPING THE LIMITATION OF LIABILITY THERETO

“The only way to escape the limitation of liability with respect to damage or loss of cargo is where the consignor at the time when the package was handed over to the Carrier made a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires.” PER IYIZOBA, JCA

AWARD OF DAMAGES-SPECIAL AND GENERAL DAMAGES-WHAT IT AMOUNTS TO IN A BREACH OF CONTRACT

“As far as breach of contract is concerned, the law is that award of special damages as well as general damages amounts to double compensation and is not allowed.” PER IYIZOBA, JCA

SPECIAL DECLARATION-NATURE OF

“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.” PER IYIZOBA, JCA

RES IPSA LOQUITOR-DOCTRINE OF-HOW 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”. PER IYIZOBA, JCA

ACTION FOR DAMAGES-HOW FOUNDED-ARTICLE 29 OF THE MONTREAL CONVENTION 1999

The provisions of the Montreal Convention are in the Second Schedule of the Civil Aviation Act 2006. Article 29 of the Montreal Convention 1999 provides:
“In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring the suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.” PER IYIZOBA, JCA

CASES CITED

Ibekendu V. Ike (1993) NWLR (Pt.299)287Oauma V. I.B.W.A. (1988) NWLR (Pt. 73) 658

STATUTES REFERRED TO

1. Civil Aviation Act 2006

2. The Montreal Convention 1999

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