Emirate Airline V. Tochukwu Aforka & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the leading Judgment)

This is an appeal against the judgment of Archibong J. of the Federal High Court, Lagos in SUIT No: FHC/L/CS/127/2008 delivered on the 29th day of November, 2010. The Respondents sometime in August 2007 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 packed in 18 bags with a total weight of 880kg. The goods were to arrive within a month from the date the freight was paid for. The goods never got to Lagos. The Respondents as Plaintiffs instituted an action against the Appellant as Defendant for breach of contract claiming in their amended statement of claim at page 160 of the Record as follows:

1. The payment of the total sum of 362,775.00 United Arab Emirate Dirham being the sum of the value of the eighteen (18) missing bags of the Plaintiff’s Ink Cartridges valued at 351,100 UAE Dirham and the freight charges of 11,675.00 UAE Dirham paid by the Plaintiffs for the purchase and freight charges of the goods plus interest at the rate of 25% per annum till judgment is delivered and thereafter at the rate of 71/2% par annum till judgment sum is finally liquidated which the Defendant agreed to air freight to Lagos, Nigeria.
2. An Order of the Honourable Court that the failure, neglect and/or refusal of the Defendant to deliver the 18 bags of the Plaintiffs’ Ink Cartridges to them amounts to breach of contract and willful misplacement.
3. Refund of the sum of N2.5m (Two million, five hundred thousand naira) paid by the Plaintiffs to its Solicitors to handle the matter and the cost of this action.

In their statement of Defence at page 185 of the Record, 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.

The offer was turned down and the plaintiff chose to institute this action. The trial Court in its judgment held that the non delivery of the Plaintiff’s cargo amounts to a breach of its contract of carriage with the Plaintiffs and that no limitation of liability applies to the contract and therefore awarded to the Plaintiff (i) The sum of 29,319 Dirham for complete failure and/breach of contract by the Defendant (ii) N5 Million in general damages and further held that because the goods did not leave Dubai, the terms of the contract of carriage did not apply. The judgment is at pages 334 – 339 of the record of appeal.

Dissatisfied with the judgment, the Defendant appealed to this Court by Notice of Appeal dated 17th December, 2010 but subsequently amended by the order of this Court. From the five issues in the amended Notice of Appeal dated and filed 11/10/11 the appellant formulated three issues as follows:

(a) 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?

(b) Whether a Court can award General damages and also Special damages at the same time?

c) 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?

The Respondents in their brief formulated the following issues for determination:

(a) Whether the Defendant/Appellant is not in breach of its contract to the plaintiffs/Respondents having failed to deliver to the Plaintiff/Respondent the 18 cartons of ink cartridges.

(b) Whether the judgment of the trial court awarding 23,139 UAE to the Plaintiffs/Respondents as against the Plaintiff/Respondent’s total claim of 362,775 UAE for the 18 cartons ink cartridges and 11,675.00 freight charges is not against the weight of evidence.

(c) Whether the limitations as contained in the Montreal convention and the condition of carriage of cargo of the Defendant/Appellant can avail the Defendant/Appellant’s act of negligence.

There is no dispute as to whether or not the Appellant was in breach of the contract. The Appellant admitted non delivery of the 18 cartons of ink cartridges. The Respondent’s issue 1 did not therefore arise from any of the grounds of appeal in the amended notice of appeal. The appellant’s issues capture the essence of the appeal; and also encompass the remaining two issues formulated by the Respondent. I shall adopt the appellant’s issues in the determination of the appeal.