|
JUDGMENT
J. B. AKANMA, J.A
This appeal comes from the Accra
Fast Track High Court and it is
against the judgment delivered
on 17th June 2003 by Julius
Ansah, J.A, sitting as an
additional judge of the High
Court.
The plaintiff/respondent
(hereinafter referred to simply
as plaintiff) issued a writ of
summons on 13th of December 2002
against the defendant/appellant
(hereinafter referred to as the
defendant) in the Fast Track
High Court Accra, claiming the
following:
"(1) Plaintiff claim against the
defendant is for payment of
$600,000 US dollars or its cedi
equivalent being general damages
for deliberate prevention of the
plaintiff by the defendant from
boarding defendant's airline
which occasioned defendant's
loss of lucrative contract in
Brussels.
(2) Costs."
The facts relied upon by the
plaintiff to mount his action
are briefly that the plaintiff
is a businessman and chief
executive officer of Trans
Africa (2000) Ltd. Plaintiff
resides mostly in London but
shuttles between that city and
Accra and other parts of the
world to attend to his business.
The defendant on the other hand
is an international airline
company with an office in Accra.
The plaintiff travelled by a
business class ticket from
London to Accra aboard the
defendant's airline. On 15th
July 2002, plaintiff reported at
Kotoka International Airport to
embark on his return journey to
London. At 7:30 pm on that
15/7/2002 plaintiff proceeded to
the defendant's check in
counter, where the defendant's
staff, a lady, asked him
(plaintiff) to place his luggage
on the weighing scale to which
he complied. The defendant's
staff upon looking at the scale
said the plaintiff had excess
baggage. The plaintiff said he
responded by telling the
defendant's staff that she
should have first observed his
class of ticket before saying he
had excess baggage. As a result,
the defendant's staff requested
for the ticket and after
examining it, told the plaintiff
that his ticket was not valid.
This prompted the plaintiff to
point out that he had travelled
from London by the same ticket
and being an open ticket he was
now using the out bound to fly
back to London and that he
confirmed his flight from
defendant's partnership hotel
(Golden Tulip). The defendant's
staff, apparently infuriated by
the plaintiff's explanations
responded that the plaintiff
should not tell her how to do
her job and that the ticket was
not valid, thereby triggering
some arguments. According to the
plaintiff, in the course of the
arguments he told the
defendant's staff that he had a
business meeting the following
day the 16th July 2002 and must
be allowed to board the aircraft
to London and then to proceed to
Brussels. To this, the
defendant's staff sarcastically
responded that even if the
plaintiff were going to visit
the Queen of England, he would
not be allowed to fly with the
defendant's aircraft since his
air ticket was not valid. The
staff also told the plaintiff
that even though there were
vacant seats on the aircraft
they would not allow him to
board. Meanwhile other
passengers, mainly whites, who
came after the plaintiff to the
defendant's counter were
processed and made to board the
aircraft. The plaintiff remained
at the defendant's counter till
the close of the flight
whereupon plaintiff left for the
La Palm Beach Hotel where he
lodged for the night.
The following day, plaintiff
sent the General Manager of his
company, PWI, to the defendant's
main office to ascertain the
validity of his KLM business
class ticket to be told that not
only was the ticket valid but
that plaintiff should proceed to
the airport that same 16th July
2002 to board the plane with the
same ticket. The plaintiff
accordingly flew to London but
was not able to attend the
meeting on 16th July 2002 due to
the events of the previous
evening. This according to
plaintiff resulted in his loss
of the contract.
The defendant who is aggrieved
by the judgment filed an appeal
against the whole judgment on
the following grounds namely:
(a) That the learned trial Judge
erred in law by
allowing/permitting
unauthenticated and uncertified
self serving letters and
documents of the plaintiff to be
admitted in evidence
notwithstanding objections by
the Defendant's counsel to same
or by the court on its own
motion as per Section 8 of the
Evidence Decree 1975 (NRCD 323)
(b) That the learned trial judge
erred in law by awarding damages
to the plaintiff when pleadings
and evidence clearly indicate
that the plaintiff could not and
did not provide specific and
sufficient evidence to establish
a legal obligation created by
mutual agreement between the
plaintiff and the defendant that
mandated the defendant to fly
the plaintiff to a destination
in Brussels to allegedly bid for
a contract on or before 16th
July 2002.
(c) That the learned trial judge
also erred in law by finding
that, the defendant was in
breach of contract and awarding
excessive damage and costs to
the plaintiff as, even if, the
defendant breached its contract
with the plaintiff, said heavy
damages cannot reasonably be
supposed to have been in the
contemplation of both plaintiff
and defendant at the time of
purchase of defendant's airline
ticket by the plaintiff.
(d) That the learned trial judge
erred by giving judgment in
favour of plaintiff when his
pleadings and evidence adduced
at the trial clearly indicated
that he has completely and
totally failed to discharge or
meet the burden of producing
credible evidence on the issue
before the court.
(e) That the judgment of the
learned trial Judge is against
the weight of evidence adduced
at the trial.
(f) That further and other
grounds of appeal may be filed
on receipt of a certified copy
of the judgment or ruling.
Arguing the first ground of his
appeal, the appellant submitted
in the statement of case that
certain unauthenticated,
uncertified and notarized
documents were admitted in
evidence despite strenuous
objections by counsel. As to
what specific documents are
referred to, counsel for the
appellant has, in the main, not
been helpful to the court on the
issue. Counsel failed to point
to the particular documents that
were affected by the trial
judge's generous reception into
evidence. For instance, the
reference in the statement of
case to page 27 line 20 is not a
reference to a particular
document whose reception is
being questioned nor is the
reference to page 31 paragraph
12 a reference to an exhibit
that ought not to have been
accepted in evidence. I believe
that the reference to page 31
paragraph 12 ought to be a
reference to line 12 since the
appeal record is read according
to the lines and not paragraphs.
Thus said, page 31 line 12, does
not help the cause mounted by
the appellant.
The closest to the point is
perhaps appellant's reference to
other instances of admissions by
the Judge on pages 33 to 35 and
44 of the record of appeal. The
exhibits covered on those paces
are exhibits E, F and perhaps G,
the exhibit G being admitted on
page 45. The plaintiff tendered
exhibits A, B, C, D, E and F,
ostensibly in proof of his
assertion that his status as a
prominent business man was
recognized by the Sierra Leone,
Ghana and British governments as
well as by the West Africa
magazine respectively. Exhibit A
is a letter-purportedly written
by the Inspector General of
Police of Sierra Leone. Exhibit
B is a photocopy of a letter
from a 'Commission for the
Consolidation of Peace (Sierra
Leone Government)' appointing
the plaintiff as its Ambassador
at Large. Exhibit C is another
letter signed by a Chairman
'Sammy Doppelt' on a letterhead
of Independent Diamond Valuators
to the plaintiff to facilitate
an invitation to the President
of Ghana and his Minister for
Mineral affairs to attend a
conference. Exhibit D is an
unsigned letter bearing the name
'SAMY DOPPELT' Chairman,
inviting the President of Ghana
to an undated meeting with Al
Gore former Vice President in
attendance. Exhibit E is a
photocopy, albeit faxed copy, of
a letter from 10 Downing Street
to the plaintiff. Finally
Exhibit F is a copy of West
Africa magazine issue No 4293.
As to whether the reception of
any of these exhibits in
evidence was proper, the same
can only be answered by
considering whether their
reception complied with the
provisions of the Evidence
Decree.
Since exhibits A, B, C, D and E
purport to be documents or
copies thereof of foreign
official bodies, their admission
must be regulated by section 161
of NRCD 323. Consequently the
said exhibits being foreign
official documents should be
accompanied by certifications
attesting to the Genuineness of
the signatures and the official
positions of the persons who
executed the writings in order
for them to be presumed genuine
and authorized. These
certifications must be signed
and sealed by a diplomatic agent
of Ghana or of a Commonwealth
Country who is assigned or
accredited to that country.
Needless to say that in these
days of phenomenal advancement
in science and technology, the
quest to guard against frauds
generally by strict adherence to
these rules cannot be over
emphasized. For this reason no
value could be placed on the
contents of Exhibit A, B, C, D
and E. Rule 8 of NRCD 323
empowers this court to exclude,
on its own motion, evidence that
would be inadmissible if
objected to by a party. Exhibits
A, E, C, D and E qualify to be
so treated and I hereby exclude
them from the record. As for
Exhibit F, being a periodical,
its reception is governed by
rule 156 of the Evidence Decree,
which makes for its reception as
applied by the trial court. Its
reception was therefore proper
under the circumstance. Reading
through the judgment of 17th
June 2003 however, I find
nothing to suggest that the
trial judge placed any reliance
on any of the documents just
discussed. The judgment was
rather informed by legal
evidence only for which I cannot
fault the judge. In the premises
I find no merit in this ground
of appeal and dismiss it.
The next two grounds together
attack the trial judge's award
of damages and excessive costs
in favour of the plaintiff
particularly when the pleadings
and evidence clearly indicate
that the plaintiff could not and
did not provide specific and
sufficient evidence establishing
a legal obligation created by
mutual agreement between
plaintiff and defendant that
mandated defendant to fly
plaintiff to Brussels to bid for
a contract on or before 16th
July 2002. In determining these
grounds together under the
rubric of the omnibus ground
that the judgment is against the
weight of evidence let me begin
by making an observation as to
what I consider to be the
essence of these grounds of
appeal. The crux as I see it, is
whether the plaintiff had proved
in accordance with S. 15(2) of
the Evidence Decree, (NRCD 323),
that the defendant was the cause
of his alleged loss of contract
in Brussels so as to warrant the
award of the damages and costs
granted by the court. Section 15
(2) of NRCD 323 states that,
"Unless and until it is shifted,
the party claiming that a person
did not exercise a requisite
degree of care has the burden on
that issue." The case of Hadley
vs. Baxendale (1854) 9 Exch.341
@354 blazed-the trail for the
award of damages wherein
Alderson B stated that, "Were
two parties have made a contract
which one of them has broken,
the damages which the other
party ought to receive in
respect of such breach of
contract should be such as may
fairly and reasonably be
considered either arising
naturally i.e. according to the
usual course of things, from
such breach of contract itself
or such as may reasonably be
supposed to have been in the
contemplation of both parties,
at the time they made the
contract, as the probable result
of the breach of it "
The defendant is here, not
contesting the trial judge's
finding that, 'In short
therefore, the defendant
deliberately and unjustifiably
prevented the plaintiff from
undertaking his journey aboard
their flight on 15th July 2002.'
The defendant's concern as can
be discerned from the record is
that there was no mutual
agreement between him
(defendant) and plaintiff,
mandating defendant to fly
plaintiff to Brussels to bid for
a contract on or before 16th
July 2002. In other words the
defendant is here contending
that Brussels was not within the
contemplation of either party at
the time the two of them entered
into the contract of carriage.
The ticket exhibit M provides
for carriage from 'London to
Amsterdam to Accra to Amsterdam
to London'. The defendant's
query appears justified, as
borne out by the sequence of
events apparent on the record.
The record of appeal for
instance shows that it was in
the course of heated exchanges
between the plaintiff and the
defendant's agent that plaintiff
mentioned that he had a business
meeting the following day the
16th July 2002 and must be
allowed to board the aircraft.
Having made the disclosure for
the first time and in the
obvious heat of passion, the
plaintiff required doing more
than merely mounting the witness
box to repeat the claim, to
warrant a determination in his
favour. In this endeavour
however, I find nothing
beneficial to the cause of the
plaintiff in this regard to
warrant liability being placed
on the defendant for the alleged
failed trip to Brussels, a claim
I find to be otherwise too
remote and unproven.
In arriving at this conclusion,
I am mindful that the plaintiff
failed to lead evidence to show
that he had indeed submitted any
bid for a contract in Brussels
and when. No bid documents were
tendered in evidence for
scrutiny by the court. The
sudden production of exhibit G
at the trial court did not
advance the issue for the simple
reason that the said document
did not comply with s. 161 of
NRCD 323 and was therefore
wrongly received. Exhibit G is
the letter dated July 18, 2002
on the letterhead of Independent
Diamond Valuators, signed by a
chairman and addressed to the
plaintiff, informing him of the
failed bid. By virtue of section
8 of NRCD 323, exhibit G is
hereby excluded from the record.
Yet another cause for doubt
about the Brussels bid, is the
total lack of evidence about any
effort made to reach or inform
the Brussels authorities about
the flight difficulties or
problems between the 15th July
2002 when plaintiff failed to
board the aircraft and the 16th
July 2002 when the bid was
supposed to be open for
consideration. Furthermore the
plaintiff did not consider it
necessary to disembark at
Amsterdam and proceed to
Brussels, which is shorter
instead of continuing to London,
with the intention of connecting
back to Brussels in mainland
Europe. Indeed from the
plaintiff's own testimony he did
not proceed to Brussels after
all. The plaintiff also woefully
failed to lead evidence stating
what time the meeting was
scheduled to take place at which
he was expected to be present.
All this aside, there is nothing
to show that it was indeed the
absence of plaintiff per se that
was responsible for his failure
to win the bid. In any case the
plaintiff was obliged to show
that the Brussels trip was in
the contemplation of the parties
when they first entered their
contract of transporting the
plaintiff on defendant's
aircraft. These inconsistencies
may individually appear harmless
but cumulatively they could
succeed in discrediting the
claim of the proponent of the
evidence. This is so with the
plaintiff on his claim about his
bid in Brussels. Notwithstanding
the failure of liability for the
alleged Brussels bid, the
plaintiff is nonetheless
entitled to damages based upon
the trial judge's finding that
the defendant deliberately and
unjustifiably prevented him
(plaintiff) from undertaking his
journey aboard their flight on
15th July 2002 to London. In
awarding damages based upon the
findings supra, this court must
bear in mind the evidence to the
effect that the plaintiff was
obliged to take up lodgment at
La Palm Beach Hotel that 15th
July 2002 and the travail he was
put to the next day to verify
his ticket. It would appear that
with the plaintiff's eyes
focused on the $600,000.00 US
dollars endorsed on his writ of
summons, he failed or did not
deem it necessary to throw some
light on the expenses he
incurred when he was put to this
discomfort by the actions of the
defendant. In any case, the
essence of an award of damages
is to give the plaintiff
compensation for the damage,
loss or injury he has suffered.
These comprise two main groups
notably pecuniary and
non-pecuniary loss. The former
is made up of all financial and
material loss incurred, such as
loss of business profits or
expenses of medical treatment.
The latter comprises all losses,
which do not represent an inroad
upon a person's financial or
material assets, such as
physical pain or injury to
feeling. The former being a
money loss is capable of being
arithmetically calculated in
money, even though the
calculation must sometimes be a
rough one where there are
difficulties of proof. The
latter is not so calculable. See
McGregor on Damages 14th
Edition, pane 10, (Sweet and
Maxwell). Also the speech of
Lord Blackburn in Livingstone
vs. Rawyards Coal Co. (1880) 5
App. Cas 25, 39, defines the
measure of damages as "that sum
of money which will put the
party who has been injured, or
who has suffered, in the same
position as he would have been
in if he had not sustained the
wrong for which he is now
getting his compensation or
reparation. “Guided by the
authorities cited supra and in
the light of the evidence on
record, there is no doubt at all
that the plaintiff is entitled
to damages arising out of
damages to his feelings or what
is sometimes termed a damaging
reflection on the "fair fame" of
the plaintiff, but not to the
measure awarded by the trial
judge which I find excessive and
unwarranted. Consequently I
hereby set aside the fifty
thousand US dollars ($50,000)
damages against the defendant. I
substitute five thousand dollars
($5000) damages for the
plaintiff instead.
The next segment of this ground
of appeal complains about the
award of costs made against the
defendant. The defendant's
reason is that the award was
excessive and based upon
erroneous estimates. It is trite
to observe that a successful
party is usually entitled to
costs but this is a matter of
discretion for the trial judge
who is required to exercise his
discretion judicially, that is
to say, according to reason and
justice and not according to
sentiments or sensibility.
However a party who is aggrieved
by an award of costs may upset
it if he can show that the judge
wrongly exercised his discretion
in the particular case. See
Nartey-Tokoli vs Volta Aluminium
Co. Ltd (1987-88) 2 GLR 532,
Guardian Assurance Co. Ltd vs
Khayat Trading Store (1972) 2
GLR 48, Boullion Industries vs
Dizengoff Gh. Ltd, CA,
HI/85/2004 of 30th April 2004
(unreported). The trial court
awarded costs of ten million
cedis in favour of the
plaintiff. It is not clear what
the basis was for the award of
this colossal sum except for
what appears to be some measure
of trading between counsel which
ended in disagreement. The case
itself does not appear to be
complicated. The trial begun on
5th May 2003 and judgment
delivered on 17th June 2003. The
plaintiff called three witnesses
whilst the defendants called
one. I find in the circumstances
the costs of ten million
unjustifiable and it is hereby
set aside. I substitute cost of
four (4) million cedis for the
plaintiff in the court below.
The last point of contention I
propose to deal with is that the
learned judge erred by giving
judgment in favour of plaintiff
when his pleadings and evidence
adduced at the trial clearly
indicated that he has completely
and totally failed to discharge
or meet the burden of producing
credible evidence on the issues
before the court. In his
statement of case, the defendant
has sought to reopen or reargue
the point as to whether the
defendant's refusal to allow the
plaintiff on board its aircraft
manifestly and irresistibly and
solely resulted in the alleged
loss of a lucrative contract in
Brussels on 16th July 2002. That
point has already been resolved
and I do not intend to return to
it. Another issue raised in the
statement of case is whether or
not the refusal to allow or
carry plaintiff on board to
London on 15/7/2002 was
unlawful. On this point I dare
point out that the court below
had before it the sole account
of the plaintiff and his
witnesses. The line of
cross-examination not only
failed to make any punches in
the plaintiff's case, it also
failed to set out clearly the
case for the defence. This
aside, the defendant was content
at listening to the evidence led
by the plaintiff without leading
any evidence of its own to
counter that led by the
plaintiff. The result, rightly
to my mind, is that the trial
judge found for the plaintiff
based upon the evidence before
him that the refusal to allow
the plaintiff to board did not
accord with the defendants own
conditions of carriage. The
defendant's own conduct by not
cross examining the plaintiff on
crucial matters of disagreement
between them rendered it
unnecessary for plaintiff to
lead further evidence on those
points in accordance with
section 119 (a) and (b) of NRCD
323 which states that a party
who fails to cross examine on
the evidence led on an issue is
deemed to have admitted that
evidence. In Fori v Ayirebi
(1966) GLR 627 SC, the Supreme
Court in its holding (6) decided
that: "When a party had made an
averment and that averment was
not denied, no issue was joined
and no evidence need be led on
that averment. Similarly when a
party had given evidence of a
material fact and was not
cross-examined upon, he need not
call further evidence of that
fact" (Emphasis underlined). For
instance there was no attempt to
cross examine PW2 on his
testimony about the lady
(defendant's representative)
when she was quoted to have said
that she did not care and that
as far as she was concerned the
plaintiff had an invalid ticket
and whether the plaintiff had a
meeting with the Queen of
England was none of her
business. From the above
scenario the trial judge was
right in finding on the evidence
that the defendant deliberately
and unjustifiably prevented the
plaintiff from boarding the
aircraft. Equally disturbing for
the cause of the defendant was
their failure to call any
eyewitnesses to testify on their
behalf. They may have had a
strategic reason for not calling
the lady at the center of the
controversy but that strategy
could also be their undoing.
They equally failed to produce
the manifest for the day to show
whether the claim of the
plaintiff that he had booked his
flight was borne out. The trial
judge who was left with only the
testimony of the plaintiff on
the issue came to the right
conclusion on the matter and I
cannot fault him. There is no
merit in this ground of appeal
and it fails.
In view of the partial success
of this appeal the defendant
ought ordinarily to be entitled
to some costs but taking the
total circumstances of this case
into consideration I think that
there should be no order as to
costs.
I. B. AKANIBA
JUSTICE OF APPEAL
OMARI-SASU, J.A
I agree
OMARI-SASU
JUSTICE OF APPEAL.
TWENEBOA-KODUA.
I also agree.
K. A. TWENEBOA-KODUA.
JUSTICE OF APPEAL.
COUNSEL
Kenneth D. Laryea, Esq. of
Laryea, Laryea & Co for
Defendant/Appellant.
Mr. Prosper Nyahe for Prof. A.C.
Kuma for Plaintiff/ Respondent. |
