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Case Review Where there’s willful misconduct, there’s damages. BRITISH AIRWAYS v. ATOYEBI SUPREME COURT OF NIGERIA (MOHAMMED; FABIYI; PETER-ODILI; MUHAMMAD; KEKERE-EKUN, JJ.SC) A member of the Appellant’s staff collected a bag from the Respondent just before he boarded the Appellants flight from London Heathrow Airport to Murtala Mohammed Airport Ikeja, Lagos. The Respondent was issued a tag and the bag was supposedly checked into the hold. However, upon the arrival of the flight in Lagos, the bag was missing. The Respondent was informed that the bag had been located at Heathrow and would be sent to Lagos without delay. The bag was not sent and the Respondent traveled to London to collect it personally. The Respondent unsuccessfully sought recompense from the Appellant for the costs incurred and inconvenience suffered. He then instituted an action against the Appellant at the Federal High Court Lagos claiming special and general damages. The trial court entered judgment in favour of the Respondent. The appeal to the Court of Appeal was dismissed and the Appellant further appealed to the Supreme Court. The issue raised for determination at the Supreme Court was: “Whether or not the learned Justices of the Court of Appeal were right in affirming the judgment of the lower court in respect of assessment of damages and exclusivity of the Warsaw Convention 1929.” Learned counsel for the Appellant submitted that the contract between the parties is a contract of international carriage by air which is governed by the Warsaw Convention, but the Respondents case was founded on breach of contract under the common law. Counsel argued that if the head of claim does not fall within the contemplation of the Convention, the action should be dismissed. Appellant’s counsel further submitted that a party alleging wilful misconduct must prove it, but the Respondent failed to plead or prove wilful misconduct on the part of the Appellant or any of its agents that would entitle him to a higher amount than that provided for by Article 22(2) of the Warsaw Convention. In reply, the Respondent submitted that that the lower court decided that the Appellant is not entitled to limit its liability under the provisions of the Warsaw Convention. The Respondent argued that the evidence showed that the Appellant was negligent or guilty of wilful misconduct in the performance of its duties to the Respondent under the contract of carriage by air. Furthermore, since the Respondent had sufficiently demonstrated that the Appellant was not entitled to exclude or limit its liability, the lower court was right to award special and general damages. The Supreme Court allowed the appeal in part by adjusting the award of damages. The court held that: “I am of the view that the averments in the paragraphs reproduced above clearly disclose an allegation of wilful misconduct on the part of the appellant. Though described as particulars of negligence, the facts set out in sub-paragraphs (a) to (e) of paragraph 21 are facts tending to illustrate the acts of wilful misconduct allegedly committed by the appellant. The respondent gave copious oral and documentary evidence in support of the above pleadings. The two lower courts, relying on these facts rightly concluded in my view, that having regard to the circumstances of the case, the appellant was not entitled to avail itself of the provisions of the CAO to limit or exclude its liability towards the respondent. I agree with the findings of the two lower courts that the acts of the appellant in this case were reckless and deliberate. It not only failed to deliver the respondents checked baggage upon his arrival in Lagos, after several fruitless trips by him to the airport in Lagos over a period of three days on the appellants promise that the baggage would arrive, it deliberately refused to deliver the said baggage to his duly authorized agents in London when it was located at their office at Heathrow Airport, and continued to withhold it until the respondent had to travel back to the U.K. to retrieve it at great personal expense. It was clear from the evidence led at the trial that the appellant had no intention of delivering the respondents baggage to him in Lagos, having abandoned it at its Lost Baggage store in London. It was on this basis that both courts considered the respondents claim for damages. I agree with both courts that in view of the appellants acts of wilful misconduct, it was not entitled to restrict or limit its liability to the amount provided for in Article 22 (2) of the CAO. By virtue of Article 25, once wilful misconduct was established, the respondent was entitled to damages. In the instant case the respondent claimed both special and general damages. 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, See: Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt.14) 47 @ 65 per Obaseki, JSC; Odiba V. Azege (1998) 9 NWLR (Pt.566) 370 @ 382 D - E. The rationale behind the compensatory theory for the award of damages is found in the maxim restitutio in integrum. In other words, to restore the injured party to the position he or she was in prior to the injury. See: Shell Petroleum Dev. Co. (Nig.) Ltd. v. High Chief Tiebo VII & Ors. (1996) 4 NWLR (Pt. 445) 657 @ 680 D - E: Okongwu v. N.N.P.C. (1989) 4 NWLR (Pt.115) 296; Cameroon Airlines v. Otutuizu [(2011) 1 CLRN 1].” Counsel: S. A. Akorede-Lawal for the Appellant Femi Atoyebi, SAN in person - Respondent. This summary is fully reported at (2014) 8 CLRN info@clrndirect clrndirect Join in our discussion of the above report at commerciallawreportsnigeria.blogspot
Posted on: Tue, 09 Sep 2014 10:12:29 +0000
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