By Onyewuchi Ojinnaka
A Federal High Court sitting in Lagos presided over by Justice Saliu Saidu has ordered Air France to pay the sum of N500,000 damages to a Lagos State High Court judge, Mrs Oke Lawal, and her husband, Chief Bayo Lawal,(plaintiffs) over breach of contract.
The judgement of Justice Saidu was consequent upon a suit filed by Justice Oke Lawal and her husband Bayo Lawal against Air France for breach of contract of carriage by air. The suit was filed on behalf of the plaintiffs by a Lagos lawyer, Folabi Kuti, from the law firm of Osaro Egbobamien.
On the suit, plaintiffs were claiming sum of N30 million being compensation for loss, and delay in delivery of their luggages as well as anguish and mental distress they suffered as a result of the breach of the contract.
In a statement of claim filed and argued before the court by the plaintiffs’ counsel, it was alleged that they boarded the defendant’s passenger aircraft, ‘Flight AF3849’ from Lagos to Paris on July 23, 2015 and then from Paris to Florence on ‘Flight AF1066’.
They claimed that at the point of embarking in Lagos, they duly checked in three pieces of Registered Luggage with the Airline; two belonging to the Judge, whilst the other one contained personal effects and other valuables of the husband. But at the point of disembarking on arrival in Italy on July 24, 2015, only two pieces of luggage belonging to the Judge were delivered. Chief Lawal (second plaintiff) discovered that his own luggage was lost or had been converted by servants of the Airline working in the course of their duties. The airline was immediately alerted.
The following day a staff of the Airline brought a luggage to their hotel, but he observed that the wrongly tagged luggage was not his own.
Consequently, the staff left with the luggage with a promise that he would do everything possible to deliver his luggage as soon as possible.
It was submitted that on July 26, 2015 plaintiffs departed to Florence, Paris and further to London. Justice (Mrs) Lawal checked in two pieces of luggage but upon arrival in London on the same day it was discovered, much to her shock and chagrin that the Airline had failed to deliver the two pieces of her Luggage. A formal complaints was subsequently lodged with the airline.
Thereafter, a smaller luggage was delivered to the Judge three days later in Kent while the larger suitcase was delivered to her five days later. Chief Lawal averred that on July 29, 2015, he was contacted by an unidentified person on the internet, claiming to be in possession of his luggage.
It was assumed that this unidentified person had apparently broken into his luggage, and was able to orally identify the contents thereof including his iPad, and sensitive drug medication.
He then advised the individual to return the luggage to the Airline, and thereafter, he informed the airline about the development. Nonetheless the Airline has not been able to deliver his luggage inspite of the complaints about the carelessness of the Air France, his luggage was not found.
Consequently, the plaintiffs sued Air France, claiming general damages in the sum of N30 million and 2,871 British pounds sterling for the loss of luggage and content thereof, and compensation for the mental anguish and mental distress they had suffered.
They also urged the court to declare that Air France was negligent, and its action amounts to a breach of contract of carriage by air, and willful misconduct. In the course of hearing the matter, Chief Bayo Lawal was the only witness for the plaintiffs and tendered seven exhibits.
However, responding to the plaintiffs’ claim, the defendant (Airline) filed statement of defence through their counsel Ogunyemi Olanrewaju, and in prove of their defence called one Helen Onomerike as the only witness who testified and tendered nine exhibits.
The defendant contended that it ought not to be liable for the delay in the delivery of Justice Oke Lawal’s luggage, as the uncontroverted and unchallenged evidence before the court shows that despite the fact that the judge’s two pieces of luggage were delivered to her late, the defendant had taken all steps that could reasonably be expected of it in the carriage and delivery of the luggage.
Referring to Article 19 of the Montreal Convention, and in the event that the court holds the view that the defendant is liable to pay compensation to the first plaintiff (Judge) for the delay in delivery of her luggage, compensation ought to be according to the Montreal convention, 1999.
Defendant argued that the judge has failed to make any special declaration in delivery at destination and has not made any additional payments in support of any such declarations, she cannot seek and she ought not to be paid any compensation over and above the limit provided in Article 22(2) of the Montreal Convention.
“The provisions of 22(2)and Article 29 of the Montreal Convention, 1999 are the relevant and applicable provisions in the determination of what compensation is due to Chief Bayo Lawal herein and as such, his claim of N30 million for loss of his luggage should be dismissed.
“Special damages are damages, injuries and losses which are outside the realm of the contemplation of the parties to a contract and as such cannot be awarded arbitrarily, especially when he failed to make any special declarations as to the content of his luggage to the defendant
Following the arguments canvassed by the defendant, it urged the court to dismiss the claims of the plaintiffs.
After careful consideration of the submission of parties in his judgement, Justice Saidu said:
“The provisions of Section 22(2) of the Montreal Convention 1999, is very clear. The damages arising from loss or delay of luggage is limited to 1,000 Special Drawing Right. Where the words of statute are clear, plain and unambiguous, recourse to preamble, title, context and purpose will not be necessary.
“It is part of the evidence of the plaintiffs that they carried out some actions in seeing to the recovery of their baggage. These actions of the plaintiffs will definitely incure additional expenses in the course trying to locate their luggage.
“The defendant having admitted that it lost Chief Bayo Lawal’s luggage and delayed the delivery of Justice Oke Lawal’s luggage, l gave judgement in favour of the plaintiffs as follows:
“That delay of the defendant to deliver the check-in luggage of Justice Oke Lawal amounts to a breach of contract of carriage by Air
“That the defendant is liable for loss and delay of the plaintiffs luggage and the defendant is to pay the plaintiffs 1,000 Special Drawing Right each.
“General damages in the sum of N500,000 only in favour of the plaintiffs”.