Harka Air Services (Nigeria) Ltd. V. Emeka Keazor Esq. (2005)

LawGlobal-Hub Lead Judgment Report

OGUNBIYI, J.C.A.

In a writ of summon dated 9th November, 1995 and statement of claim dated 1st February, 1996 the plaintiff now respondent claimed against the defendant now appellant the sum of $5,000,000 (five million United States Dollars) being compensation and damages arising from lost luggages and personal effects and injuries sustained by the plaintiff on board the defendant’s aircraft which crash landed in Lagos on the 24th day of June, 1995. In addition to this the plaintiff further claimed interest at the rate of 21% from the said 24th day of June, 1995, until judgment and thereafter at the rate of 10% per annum until final payment.

Upon an order of the lower court for pleadings on the 29th January, 1996, the plaintiff filed a 14 paragraphs statement of claim dated 1st February, 1996, and which same was duly served on the defendant on the 2nd day of February, 1996. The defendant on its part did not see it necessary to file any statement of defence.

Due to a number of interlocutory applications the trial in the matter could not have been earlier but eventually commenced on the 8th day of July, 1997.

The facts of this case succinctly put are largely not in dispute. However and on an account of brevity, on or about the 24th June, 1995, the plaintiff, a legal practitioner was a passenger transported on board the defendant’s aircraft a TU 134 Russian built aircraft which was on a domestic flight from Kaduna to Lagos. On the said date and while the plaintiff was being so transported, the defendant’s airplane was involved in a crash wherefore it violently hit the tarmac and caught fire at the airport Ikeja, Lagos. As a result of this accident, the plaintiff claimed he sustained injuries and lost some of his personal effects.

To prove his claim and the averments contained in the statement of claim the plaintiff called two witnesses, himself inclusive, while the 2nd witness was one of the air accident investigators who were officially charged with the responsibility of investigating the cause of the air crash.

At the conclusion of the trial, the learned trial Judge entered judgment in favour of the plaintiff/respondent against the defendant/appellant for a cumulative sum of N1,257,840.00 (One million, two hundred and fifty-seven thousand, eight hundred and forty naira) being special and general damages as well as costs of the action. The judgment of the Federal High Court, Lagos per A.A.B. Gumel Judge is contained at pages 163 to 183 of the record of proceedings.

Being dissatisfied with the aforesaid decision, the defendant/appellant now known as appellant subsequently appealed against same vide notice of appeal dated 17th of August, 1998 and contained at pages 189 to 191 of the record of proceedings. With the leave of this court sought and obtained, the notice of appeal was amended on the 4th and filed on the 5th November, 2002. Ten grounds of appeal with nine predicated on error in Law and one on misdirection were filed and from which the appellant distilled eight issues for determination which are as follows:-

1) Whether the learned trial Judge was entitled to enter judgment in favour of the plaintiff against the defendant for special and general damages in naira (Nigerian currency) when the plaintiffs claim for damages was in United States dollars?

2) Whether the learned trial Judge was entitled to award general damages in favour of plaintiff against the defendant when the plaintiff’s claim was predicated on a breach of contract of carriage by air?

3) Whether the learned trial Judge was right in awarding a sum of N80,000.00 (Eighty thousand naira) in favour of the plaintiff for pain and suffering?

4) Whether the learned trial Judge was right in awarding a sum of N15,000.00 (Fifteen thousand naira) for the loss of the plaintiff’s hand, luggage and a sum of N157,840.00 (One hundred and fifty seven thousand, eight hundred and forty naira) for medical bills incurred by the plaintiff as special damages?

5) Whether the learned trial Judge was right in admitting exhibits B, C, D, D1, D2 and D3 in evidence?

6) Whether the learned trial Judge was right in holding that the defendant was guilty of willful misconduct as provided in article 25 of the Warsaw convention of 1929 and consequently holding that the plaintiff is entitled to claim damages outside the limit of 125,000 francs as set out in article 22 of the Warsaw convention of 1929?