Air France V. Mrs. Brenda Akpan (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Federal High Court, Lagos Division delivered by Honourable Justice D. D. Abutu on the

11th of December, 2006.

The facts briefly stated are as follows;

The Respondent purchased an airline ticket from the Appellant, wherein the Appellant contracted to transport the Respondent by air from Lagos to Hong Kong via France on the 4th of July, 1997. Whilst aboard, the Appellant’s aircraft flight AF 755 from Lagos to Paris, the Respondent alleged that while she was seated and asleep a heavy object fell from the luggage compartment on her head from which she sustained injury. She, therefore, brought this suit at the lower court whereof she claimed as follows:-

1. The sum of $280,000 US dollars as damages for bodily injuries, pain and suffering sustained by the Plaintiff caused by the gross negligence of the Defendant whilst aboard its flight AF 755 on the 4th of July, 1997 from Lagos to Hong Kong via paris.
2. The sum of USD 5000 being medical expenses.

The Defendant filed a Statement of Defence denying that the injuries suffered by the Plaintiff/Respondent were due to the fall of any object. Parties led evidence in support of their respective pleadings. The trial judge in its considered judgment found the Appellant liable and awarded the following:

1. N130,000 plus Naira equivalent of 430 French Francs as special damages
2. USD 20,000 as general damages.
3. Interest on the judgment sums herein at the rate 6% per annum liquidation of the judgment sum.

Dissatisfied with the judgment the Appellant filed a Notice of Appeal dated 18th of December, 2006 consisting of 4 grounds of appeal. In accordance with the Rules of Court parties have filed their respective brief of arguments. They are as follows:

1. The Appellant’s brief of Argument was filed on 8th of June, 2010 and deemed properly filed on 8th of February, 2012
2. The Respondent’s brief was filed on 11th of July, 2012.
3. The Appellant’s Reply brief was filed on 25th of September, 2013 and deemed properly filed on 24th of January, 2014.

The Appellant in its brief of argument formulated 3 (three) issues for determination, viz:-

1. Whether the lower court was right to have delivered Judgment in favour of the Respondent even when the Respondent failed woefully to prove her case on the preponderance of evidence? (Ground 1 of the Notice of Appeal).
2. Whether it was proper that the lower court awarded damages in favour of the Respondent without applying the provisions of Articles 20 and 21 of the Warsaw Convention? (Ground 2 of the Notice of Appeal).
3. Whether the lower court was right to have awarded the quantum of damages which the Appellant considers excessive and not commensurate with the alleged injury suffered by the Respondent? (Ground 3 of the Notice of Appeal).

The Respondent on the other hand formulated two issues for determination, viz:

1. On whom did the burden of proof in this case lie? And was it discharged in accordance with Article 17 of the Warsaw Convention 1929 as amended.
2. Was the award of damages by the trial judge in favour of the Plaintiff in accordance with the Law and especially the Warsaw Convention 1929 as amended?

From the issues formulated by both parties, it is clear that some of the issues are similar and can be dealt with together:

1. Appellant’s issue 1 is essentially the same as Respondent’s issue 1;
2. Appellant’s issues 2 and 3 are the same as Respondent’s issue 2.

The issues shall be discussed as harmonized above.

Before dwelling into the issues as formulated by parties the Respondent’s counsel drew the court’s attention to the objection raised by the Respondent in paragraph 3 at page 4 of its brief. The objection is as regards to the failure of the Appellant’s counsel to present any issue for determination or any arguments in support of Ground 4 of the Notice of Appeal. It is submitted by the learned counsel for the Respondent that the said ground be deemed abandoned and should be struck out accordingly by this court based on the above failure.

The Learned counsel to the Appellant had no answer to this assertion.

Where no issues for determination is formulated from a particular Ground of Appeal, that Ground of Appeal is deemed abandoned by the Appellant and would be struck out. A.N.P.P. v. INEC (2004) 7 NWLR (Pt. 871) pg. 16, Bhojsons Plc v. Daniel-Kalio (2006) 5 NWLR (Pt. 973) pg. 330, Bayero v. Mainasara & Sons Ltd (2006) 8 NWLR (Pt. 982) pg. 391.