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Home » Nigerian Cases » Supreme Court » Miss Promise Mekwunye Vs Emirate Airlines (2019) LLJR-SC

Miss Promise Mekwunye Vs Emirate Airlines (2019) LLJR-SC

Miss Promise Mekwunye Vs Emirate Airlines (2019)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

Seven (7) months before her travel date the Appellant, through Mr. Clement Dolor an officer/employee of the Respondent at the Respondent’s office in Victoria Island, Lagos, bought the Respondent’s airline return ticket (electronic) for $2,067 USD to enable her travel from Dallas – Houston – Dubai – Lagos and back. The ticket, through Clement Dolor, was confirmed more than three (3) times before the Appellant’s travel date on 17th December, 2007. The Appellant, a student of the North Texas University, Denton, Texas USA, came to the Dallas airport on the said 17th December, 2007 to commence her travel to Nigeria whereat she presented the flight ticket for issuance of boarding pass. She was denied boarding, and no reason was given to her; notwithstanding that her ticket, Exhibit PM.2, was three times confirmed with clear inscription thereon “17 Dec OK”. She was merely told that the ticket had been cancelled. She was previously, not communicated of this fact/development. The Respondent made no alternative travel plans for her. The Appellant, greatly embarrassed, was constrained to stay over

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without accommodation offered by the Respondent. She had also, through her father, to buy another electronic ticket from American Airlines on 18th December, 2007 for the sum of $3,200.00 to enable her travel on 19th December, 2007 through a longer route: Dallas – Forthworth – London Gatwick – Dubai – Lagos and back. The longer route took stressful 48 hours to complete.

On these facts, the Appellant’s attorney wrote, on 4th January, 2008, Exhibit PM.5, wherein she demanded refund of moneys paid for the two tickets. The Appellant, at all material times, communicated the Respondent through their said desk officer/employee, Clement Dolor. The Appellant handed to the Respondent, through the said Clement Dolor, the tickets for refund. By 25th January, 2008 it came to the Appellant’s knowledge that Clement Dolor had left the services of the Respondent and was operating his personal travel agency, Simba Travel & Tours. The Respondent through the said Simba Travel and Tours, as it is apparent that Clement Dolor was dealing with the Respondent through the said Simba Travel and Tours, unilaterally paid the sum of $1,777.00 USD purporting to be

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the refund of their (Respondent’s) own ticket. It withheld the ticket of the American Airline and made no effort to refund the money paid to purchase that ticket. Appellant’s attorney rejected the sum of $1,777 USD alleged to be the refund of the Respondent’s own ticket. Clement Dolor, PW.2, on behalf of Simba Travel & Tours collected the sum of $1,777 USD from the Respondent. When the Appellant’s attorney rejected the said sum of $1,777 USD, he directed the PW.2 to return it to the Respondent. The Respondent also refused to take the said sum of money from the PW.2.

At the suit of the Appellant the Federal High Court, in its judgment delivered on 15th November, 2010, found that the Respondent’s “refusal to carry the (Appellant) from Dallas on the 17th December, 2007 amounts to a breach of contract of carriage with (her),” and that “No limitation to liability applies here”. Consequently, the trial Court ordered “the ticket refund to the (Appellant) should be in full without any deduction or charge,” and a “further grant of N2.5 million in general damages and N250,000.00 in legal costs” to the Appellant. Against these judgment and orders

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therein the Respondent lodged its appeal, as right, to the lower Court on seven (7) grounds of appeal.

Ground 4, out of the said 7 grounds of appeal at the lower Court is a complaint that “the learned trial Judge erred in law when he awarded N250,000.00 in legal fees when the Plaintiff claimed N1,000,000.00 but led no evidence”. The Respondent, as the appellant at the lower Court, raised issue 4 for the determination of the appeal by the lower Court from the said ground 4 of the grounds of appeal in the Notice of Appeal. The lower Court resolved the said issue 4 before it in favour of Respondent holding inter alia, at page 468 of the Record that –

The learned trial Judge consequently erred in granting the sum of N250,000.00 legal costs. Having arrived at the conclusion that the award is for legal costs and not costs simpliciter, leave of Court was unnecessary.

This is the basis of grounds 4 & 5 in the instant appeal before us. Issues 4 & 5 in this further appeal are

  1. Whether the sum of N250,000.00 awarded by the lower trial Court as costs for the suit amounts to special damages and thus requires that there must strict proof of same (Ground Four).

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Whether the Court of Appeal has jurisdiction to have considered the issue raised by the Respondent herein to writ – appealing on ground of costs filed without leave of Court (Ground Five).I observe, from page 260 of the Record that the trial Court awarded “N250,000.00 in legal costs”. That amount of N250,000.00 was not awarded “in legal fees” as the Respondent’s ground 4 misrepresented to the lower Court. It is trite that the Appellant is not permitted to create a bogus decision, by the distortion of the decision appealed, in order to found or plead his ground of appeal. This point was put beyond doubt by the Court of Appeal in MINJIBIR & ANOR. v. MINJIBIR & ORS. (2008) LPELR – 4486 (CA) – that –

It is settled that a ground of appeal must not only connect with and relate to the decision appealed against, it must also be relevant. Thus any complaint that does not relate to the ruling or judgment appealed against is irrelevant and therefore incompetent. This is moreso, because an unrelated and irrelevant ground of appeal cannot challenge a non-existent decision. What is more, an Appellant’s

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right of appeal is confined within the decision appealed against. If the judgment says one thing and the ground and issue state another that would be a perfect scenario of talking at cross purposes.

My learned brother, K.M.O. Kekere-Ekun, JCA (as she then was) cited with approval this trite principle, that a ground of appeal raised against a phantom or a non-existent decision is incompetent, in HON. OLEMIJA STEPHEN FRIDAY & ORS. v. THE GOVERNOR OF ONDO STATE & ANOR. (2012) LPELR 7886 (CA). I need only add that an appeal against a phantom or non-existent decision is an abuse of the Court’s process: R-BENKAY LTD. v. CADBURY NIG. LTD (2012) LPELR – 7820 (SC).

I concede to the lower Court one fact: the point was not brought to their attention. And it eluded them.

The complaint in issue 5 in the instant appeal is that, by virtue of Section 241 (2) (C) of the 1999 Constitution, as amended, without leave of Court, Respondent’s ground 4 at the lower Court complaining that the trial Court erred in law in awarding costs of N250,000.00 was incompetent. The said Section 241(2)(C) of the Constitution provides –

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241 (2) Nothing in this Section shall confer any right of appeal –

(C) without leave of the Federal High Court – or of the Court of Appeal from a decision of the Federal High Court – as to costs only.

The Respondent, in his contention, submits “that the award of N250,000.00 granted as legal costs by the trial Court was not an award of costs but damages”, and that from the “the nature of the decision of the trial Court” it was “an award of damages which does not fall within the purview of the provisions of S.241(2)(C) of the 1999 Constitution-. Respondent further submits that from the phraseology of Section 241 (2) (C) of the Constitution, since ground 4 is one of the several grounds of appeal the appeal was not merely “as to costs only”. Attractive or seductive as this argument may appear to be it does not distinguish the facts of this case from the decision of this Court inADEWUNMI v. OKETADE (2010) 8 NWLR (Pt. 119563 (SC), citing with approval the previous decisions in UNIFAM INDUSTRIES LTD. v. OCEANIC BANK INTERNATIONAL (NIG.) LTD (2005) 3 NWLR (Pt. 911) 83 at 92 and ASIM (NIG.) LTD. v. LOWER BENUE RIVER BASIN DEVELOPMENT AUTHORITY (2002) 8 NWLR (Pt. 769) 349,

See also  The Queen Vs Nnana Okoro (2010) LLJR-SC

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that it is trite that appeal does not lie as of right against an award of costs by a Court. The order made at page 260 of the Record by the trial Court is not an award of damages but clearly an order for costs assessed at N250,000.00 in favour of the Plaintiff, now the Appellant.

I am the least convinced that the very persuasive decision of the Court of Appeal in A.C.B. v. OKONKWO (1997) 1 NWLR (Pt. 480) 194 which applied the provisions of Section 220 (2) (C) of the 1979 Constitution, in pari materia with Section 241(2)(C) of the extant 1999 Constitution, is not apposite. Section 241 (2) (C) of the Constitution does not intend to confer right of appeal, as of right, on the Appellant complaining about costs in an appeal from the High Court to the Court of Appeal. I completely endorse the statement of law on this by Ejiwunmi, JCA (as he then was) in A.C.B. v. OKONKWO (supra), to wit –

A party cannot appeal on failure of the High Court to award costs without first obtaining the leave of either the Court of Appeal or of the High Court. This is the requirement of Section 220(2)(C) of the 1979 Constitution.

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In this case, since the 1st Respondent did not obtain leave, the ground of appeal in the cross-appeal complaining against costs ought to be struck out and the issue formulated from it becomes a non-issue.

Accordingly, I agree with the Appellant that the Respondent’s complaint in ground 4 of the Grounds of Appeal at the lower Court, from which the Respondent as the appellant at the lower Court formulated its issue 4, is incompetent having been raised without leave either of the trial High Court or the lower Court. This Court has been consistent on this point as can be seen from GOVERNOR,EASTERN NIGERIA V. ONYELU (1965) ALL NLR 690. The Court of Appeal followed the decisions in UNIFAM IND. LTD. v. OCEANIC BANK (supra); ASIM NIG. LTD. v. LBRDA (supra); ONUIGBO v. NWEKESON (1993) 3 NWLR (Pt. 283) 533 at 546. I will not depart from these precedents, at least on the doctrine of stare decis. I resolve the issue in favour of the Appellant.

The resolution of issue 5 in favour of the Appellant means that the lower Court lacked jurisdiction to entertain the complaint against the award of N250,000.00 as costs. It follows naturally that the question: whether the justices of

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the Court of Appeal were right to have set aside the sum of N250,000.00 awarded by the trial Court as costs, attracts the answer that the lower Court was not right in setting aside that award: since in the first place it acted ultra vires Section 241 (2) (C) of the Constitution. The defect in the competence of the lower Court to entertain that issue is fatal and it renders the proceedings and order on that issue a nullity, no matter how well it may have been well conducted and decided: MADUKOLU v. NKEMDILIM (1962) LPELR – 24023 SC). In the circumstance, it becomes academic to attempt any discourse now on whether the trial Federal High Court correctly applied the principles for award of costs as stipulated in Order 25 Rules 2 and 7, Federal High Court (Civil Procedure) Rules, 2009.

Issue 4 follows issue 5. Both issues are resolved for the Appellant against the Respondent.

The trial Court, in addition to its ordering ticket refund to the Appellant in full, without any deduction or charge, also ordered general damages put at N2.5 Million to be paid to the Appellant. The lower Court, at pages 466 – 467 of the Record, observed that –

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“after awarding the (Plaintiff/Appellant) the refund of the amount used in purchasing a ticket to enable her return to Nigeria as planned, the award of additional N2.5m damages is double compensation. More importantly, it is clearly contrary to the provision in the Montreal Convention which placed a limit to what is claimable except where negligence or willful misconduct is established as in CAMEROON AIRLINES v. OTUTUIZU (2011) 8 WRN 1: (2011) 4 N.W.L.R. (Pt. 1238) 512.”

The complaint under issue 1 settled by the Appellant is: whether the award of N2.5 Million as general damages for breach of contract by the trial Court against the Respondent qualifies and or amounts to a non-compensatory damages contrary to the provisions of the Montreal Convention and the terms of contract between the parties And in issue 3 the question is: whether the award of N2.5 Million as general damages in addition to the refund of the tickets amounts to double compensation

The Respondent seems, in my view, to concede that under the Montreal Convention “compensatory damages may include special and general damages”. It, however, argues that “in aviation claims, as in the law governing the award

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of damages awardable in breach of contract cases, there is no distinction between special and general damage” and that “any claim for damages must be subsumed in and is circumscribed by the provisions of the statute as provided by Arts 22 and 29 of the Montreal Convention”. The Appellant and the Respondent, on this, appear not too distant apart except for semantics. Appellant’s counsel in paragraph 4.1.9 of the Appellant’s Brief submits

that Article 29 of the Montreal Convention does not prohibit the grant of general damages but punitive, exemplary or non-compensatory.

For the Appellant it is further submitted, and I agree, that compensatory damages and general damages are the same. They are damages recoverable as payment for actual injury or economic loss. They do not include punitive or exemplary damages. In BRITISH AIRWAYS v. ATOYEBI (2014) 13 NWLR (Pt. 1424) 253 this Court held that general damages are compensatory damages. At page 286 of the Report Kekere-Ekun, JSC states it clearly

General damages, such as the law presumes to be the natural and probable consequences of the Defendant’s act,need not be specifically pleaded.

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It arises by reference of law and need not therefore be strictly proved by evidence and may be availed generally.

In the earlier decision of this Court, in UBN PLC V. AJABULE (2011) LPELR – 8239, per Fabiyi, JSC, stating that general damages are compensatory damages, states poignantly:

Generally damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need that not be alleged or proved. They need not be specifically claimed. They are also termed damages; necessary damages.

See also ODIBA v. AZEGE (1998) 9 NWLR (Pt. 566) 370, WAHABI v. OMONUWA (1976) LPELR 3469 (SC).

In the instant case the Appellant had bought the Respondent’s flight ticket and had, between the date ticket was purchased and the scheduled flight date, three times gotten the Respondent to confirm the ticket and the flight schedule. Exhibit PM.2 attests to this. However, on the flight date and not-withstanding Exhibit PM.2, the

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Appellant was denied boarding involuntarily and for no reason at all, except only (much later) that the ticket had been cancelled. She was embarrassed and stressfully inconvenienced for two days by the Respondent’s reckless breach of contract. The Respondent provided neither alternative arrangement nor accommodation and feeding. The Appellant was put to extra expenditure of having to buy another ticket more expensive and for longer route. For all the stress, inconvenience and embarrassment caused the Appellant by the Respondent the trial awarded general damages in the sum of N2,500,000. It also ordered refund of the tickets. The Lower Court, however, denied the Appellant the general damages holding that ordering the Respondent to pay general damages in addition to the ticket refund amounted to double compensation for the breach of contract by the Respondent.

See also  A.C.B. Ltd Vs A. Ehiemua (1978) LLJR-SC

The facts of BRITISH AIRWAYS v. ATOYEBI (supra) the Lower Court relied on to hold that the award of the sum of N2.5million as general damages, in addition to the tickets refund, amounted to double compensation are clearly distinguished from the facts of this case. The ATOYEBI case was about loss or delayed delivery of

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checked-in baggage, which Appellant carrier, after finding it, insisted that the Plaintiff/Respondent, who was resident in Lagos, must personally collect it from their London Office. The Plaintiff, Mr. Atoyebi, had to travel to London on First Class ticket to collect his lost and found baggage. The parties were ad idem that the provisions of the Warsaw Convention 1929, domesticated in Nigeria by the Air (Colonies, Protectorates and Trust Territories) Order, 1953 (CAO) contained in Vol. II, 1958 LFN applied. The effect of Articles 19, 22, 24 and 25 of CAO is that “the liability of the carrier” for loss of baggage is limited statutorily. Article 24 (1) of CAO specifically provides:

In cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.

Article 22 of CAO sets the rates payable as the carrier’s liability for loss of registered luggage etc. Article 19 of CAO then provides

  1. The carrier is liable for damage occasioned by delay in carriage by air passengers, luggage and goods.

In the peculiar circumstances of the ATOYEBI case the

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passenger was held not entitled, in view of the provisions of the CAO, to compensation for delayed delivery of his registered luggage and at the same time general damages for the same delay. Significantly, Kekere-Ekun, JSC, emphasised that a person who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another head. Such, it was held, would amount to double compensation. With all deference to the Lower Court ATOYEBI case lays down no general principle to the effect that a party whose conduct results in the other suffering not only special damages, but also general damages cannot be awarded both where the circumstances demand. Accordingly, I am of the firm view that the Respondents flagrant breach of contract whereby it unreasonably denied boarding to a confirmed passenger for no good cause, previous notice and without explanation whereby the passenger, as the Appellant herein, was not only put to extra expenditure of having to buy a more expensive ticket for a longer route, but also to endure the embarrassment, stress and inconvenience for

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two days of being stranded clearly entitles the passenger to both general damages and the ticket refund.

I have read KAYDEE VENTURES LTD v. HON. MINISTER FCT (2010) 7 NWLR (Pt. 1192) 171; (2010) LPELR 1681 (SC) cited by the Appellant to the effect that where a breach of contract is of a fundamental nature, such as the one on appeal, the Plaintiff, who suffered as a result, deserves to go home fully compensated. Though in the KAYDEE VENTURES case there was no award of special damages, and no issue of double compensation arose therein; however, there was in that case like the instant, a case of flagrant or reckless breach of contract. In the instant case, the Appellant, as the Plaintiff, paid for flight ticket. She was denied boarding even after confirming the flight three times (Exhibit PM.2). In consequence thereof she was stranded for two days without explanation, apologies and alternative arrangement, and was constrained to pay for a longer route on a more expensive ticket. It would therefore in my view be unfair and unjust for the Respondent, as the carrier, to merely refund the flight ticket without compensatory or general damages for the loss of time,

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stress, embarrassment and inconvenience she suffered in consequence of the breach of contract by the Respondent. Award of damages for breach of contract is based on resitutio in integrum. That is: in so far as the damages are not too remote, the Plaintiff should be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred: GABRIEL ATIVIE v. KABELMETAL NIG. LTD (2008) 10 NWLR (Pt. 1095) 399 (SC). Damages which are natural and probable consequences of breach of contract are awardable as general damages:MOBIL OIL (NIG.) LTD v. AKINFOSILE (1969) 1 NMLR 227; XTOUDOS SERVICES NIG. LTD & ANOR v. TAISEI (W.A) LTD & ANOR (2006) LPELR 3504 (SC).

I hold therefore that the trial Court was right in ordering the Respondent, as the Defendant, to pay in the circumstances N2.5Million as general damages in addition to the ticket refund. Issues 1 & 3 are accordingly resolved in favour of the Appellant.

The question under Appellant’s issue 2 is actually whether the limitation of liability under the Montreal Convention, 1999 domesticated by Section 48 of the Civil Aviation Act,

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2006, is applicable to the instant case where notwithstanding the fact that the Respondent had three times, at the instance of the Appellant, confirmed the Appellant’s ticket and flight as scheduled, it nonetheless denied the Appellant boarding on the flight date for no reason or explanation at all. The Appellant submits that denial of boarding without just cause smacks of both wilful misconduct and a breach fundamental term of contract. There could not have been a better case of misconduct and a breach of fundamental term of contract than this case.

Lord Reid’s dictum on breach of fundamental term of contract, in SUISSE ATLANTIQUE SOCIETE D’ARMEMENT MARITIME, SA v. N.V ROTTERDAMSETTE (1967) 1 AC 361 remains evergreen and very apposite to this case. The learned jurist stated on the consequence of breach of fundamental term of contract thus

a well known type of breach which entitles the innocent party to treat it as repudiatory and rescind the contract.

Edozie, JSC, in INTERNATIONAL MESSENGERS (NIG) LTD v. PEGOFOR IND. LTD (2005) 15 NWLR (Pt. 947) 1, cited with approval this SUISSE ATLANTIQUE CASE.

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I have no doubt the Respondent repudiated their contract with the Appellant. It is submitted for the Respondent that the denial of boarding was provided for and in contemplation of the parties by virtue of the exception clause in Article 9.3.1 of the Emirates Condition of Carriage, 2006 that provides:

If we cannot carry you in your ticketed class of service on a flight for which you have a confirmed reservation and have met all applicable check-in and boarding deadlines, we will carry you on one of our latter flights in your ticketed class of service, or if you choose, we will carry you on another class of service and will refund you the deference between the applicable fare, taxes fees, charges and surcharges paid for your ticketed class of service alternatively you may choose to receive an involuntary refund in accordance with Article 10.2

From the peculiar facts of this case the Article 9.3.1 of Emirates Conditions of Carriage, 2006, cannot and does not avail the Respondent for denying boarding to the Appellant for no just cause and no explanation whatsoever. In spite of the fact that the Respondent for three times had confirmed the Appellant’s reservation she

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was denied boarding on the confirmed flight date. No other flight arrangement or carriage was offered to her. The Respondent’s conduct tantamounts to complete repudiation of the contract it had with the Appellant.

I agree with the Appellant that the Respondent’s repudiation of its contract with the Appellant by the breach of the fundamental term of the contract does not entitle it to plead the Montreal Convention (particularly Articles 17 22 thereof). On whether Articles 17 22 of the Montreal Convention avail an airline in breach of its fundamental term of contract with the passenger, this Court re-stated the principle clearly in CAMEROON AIRLINES v. OTUTUIZU (supra) thus

See also  Ralph Uwazuruike & Ors V. The Attorney-general Of The Federation (2013) LLJR-SC

The Articles have nothing to do with the liability of an airline in the event of breach of a contract to transport its customer to a given location. The legislations relied upon by the Appellant have neither provided defence nor set limit to the amount of damages recoverable in the event of the Plaintiffs success in establishing that the Defendant had failed to transport him by air to an agreed destination. (Emphasis supplied)

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It is settled from a number of decisions that a party in breach of a fundamental term of his contract with a third party will not be allowed to benefit from or resort to exclusion clauses: PINNOCK BROTHERS v. LEWIS & PEAT LTD (1956) 2 ALL E.R. 866; ADEL BOSHALLI v. ALLIED COMMERCIAL EXPORTERS LTD (1961) ALL NLR 917 at 922; OWNERS OF NV GONGOLA HOPE v. S.C. (NIG). LTD. The rationale for the principle is that a party who is guilty of breach of a fundamental term of contract could/should not benefit from his own wrong doing by resorting to exclusionary clauses in order to limit his liability. This is moreso, when a contract of carriage by air is brazenly breached and no explanation is offered, as in the instant case. In which case there is a total failure of consideration and the central purpose or essence of the contract has wholly disappeared. In such a situation, as Okey Achike JSC explained in his book: NIGERIAN LAW OF CONTRACT, at page 107, under the doctrine of fundamental term, the party guilty of breach of a fundamental term will not be availed clauses excluding his liabilities.

No Court of justice will aid the party in the wrong to escape

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his liability for his wrong doing. Tabai, JSC puts it thus in TERIBA v. ADEYEMO (2010) 11 NWLR (Pt. 1211) 242 at 263:

In its adjudication functions, the Court has a duty to prevent injustice in any given circumstance and avoid rendering a decision which enables a party to escape from his obligation under a contract by his own wrongful act or otherwise profit from his own wrongful act.

See also ENGINEERING ENTERPRISES v. A.G, KADUNA STATE (1987) 2 NWLR (Pt. 57) 381 at 419: UGBA v. SUSWAM (2014) 14 NWLR (Pt. 1427) 264 (SC) at 341; HARKA AIR SERVICE (NIG) LTD v. KEAZOR (2011) LPELR 1353 (SC); CAMEROON AIRLINES v. OTUTUIZU (supra).

The Respondent has not shown good cause for me to resolve this issue 2 in their favour. On the other hand the Appellant has shown good cause why I should resolve the issue in their favour. Accordingly issue 2 is resolved in favour of the Appellant.

The Lower Court, upon finding that the Respondent had refunded the Emirate Airlines ticket less certain deductions to Clement Dolor who applied for the refund on behalf of Simba Travel and Tours, held that the Respondent was

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liable to pay back to the Appellant the $3,200 USD less the amount already paid to Clement Dolor. The issue arising from the finding/holding is whether Clement Dolor in applying, on behalf of Simba Travel & Tours, for the ticket refund to the Appellant was the Appellant’s agent. The contention of the Appellant is that Clement Dolor was not authorised to collect the money on her behalf. The Lower Court found as a fact, and held so, that Clement Dolor acted as the Appellant’s agent and that he had the authority of the Appellant to collect the money. She premised her contention on the fact that Clement Dolor had, at some material times, been an employee of the Respondent (at least at the time the Appellant bought the ticket). The fact is not in dispute that the time the Appellant bought her ticket up to the time the Appellant was denied boarding the Clement Dolor was an employee of the Respondent as a desk officer in their Victoria Island office. Thereafter he resigned.

Existence of the authority to act an agent is one of facts. The authority could be express or implied. Certain facts can reasonably lead to the inference that a person had the

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authority, as an agent, to act for the principal. The fact, extracted from Clement Dolor, PW.1, under cross-examination at page 189 of the Record, is very material and germane for the inference that Clement Dolor, PW.1, had authority of the Appellant to collect the refund money. Clement Dolor testified, against the interest of the Appellant

The Plaintiff’s Attorney not only told me but gave me a copy of American Airlines Ticket which he bought in the US – I was instructed to apply for a refund for the American Airlines Ticket. It is not correct to say that I was (sic: not) instructed to apply for refund of the Emirates Airlines Ticket. I did apply for the refund of the Emirates Airline Ticket. I did apply for the refund of the Emirates Airlines Ticket later.

In paragraph 17 of the statement of claim it is averred inter alia that the Appellant’s Attorney instructed Mr. Clement Dolor to demand from his employer a refund of a value of the new/alternative Electronic Ticket he purchased from the American Airlines (i.e USD 3,200.00)”. It is further averred in the statement of claim that the Respondent refunded, through Clement Dolor, USD 1,774.00 instead of

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the USD 3,200.00 and that the Appellants Attorney instructed Clement Dolor to refund the said USD 1,774.00 to the Respondent, which sum the Respondent, in turn, refused to collect from Clement Dolor, (PW.1). At page 190 of the record, PW.1, Clement Dolor, admitted that he is “still in possession of the Money”. The PW2, Appellant’s Attorney, confirms at page 196 of the Record that “the refund made is in possession of Clement Dolor”.

At page 201 of the Record, the DW.1, under cross-examination, confirms that “Emirate Airline issued the ticket” to the Appellant “through Simba Travel & Tours”. At page 204 of the Record, the DW.1 testified that “it is Simba Travel & Tours that applied for the refund”. From the totality of evidence Clement Dolor, PW.1, owns Simba Travels & Tours, a travel agency.

For the Respondent it is submitted that the existing facts clearly establish that Clement Dolor, PW.1, was the agent of the Appellant when he applied for the refund of the American Airline ticket and that the Lower Court was right in holding that he was the agent of the Appellant for the purpose of not only the refund of American Airline Ticket

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but also the refund of Emirate Airline Ticket. Existing facts support that inference. Clement Dolor, PW. 1, testified at page 188 of the Record that the Appellant was his client for five years. The Lower Court’s finding of fact on this is not perverse. The Appellant has not established any special circumstance that warrants my disturbing this finding of fact. Accordingly, I affirm the finding of fact, as I resolve issue 6 against the Appellant.

I allow the appeal on all the issues canvassed by the Appellant, except issue 6. On issues 1 – 5 the judgment of the Court of Appeal delivered on 11th April, 2014 in the appeal No. CA/L/1214/2010 is hereby set aside. The judgment of the trial Court is restored, subject to the finding of fact by the Lower Court that for the purpose of the refund of the flight tickets, Clement Dolor PW.1 was the agent of the Appellant. The Appellant is entitled to costs which I hereby assess at N500,000.00. The sum shall be paid by the Respondent to the Appellant as costs.


SC.488/2014

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