Ethiopian Airlines v Olowu (Civil Appeal 30 of 2003) [2005] UGCA 86 (5 September 2005)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE COURT Or. APPEAL OF UGANDA HOLDEN AT KAMPALA

#### 10

#### CORAM: HON. JUSTICE L. E. M. MUKASA. KIKONYOGO, DCJ HON. JUSTICE A. E. N. MPAGI. BAHIGEINE, JA HON. JUSTICE C. N. B. KITUMBA, JA

### CIVIL APPEAL NO.3O OF 2OO3

### ETHIOPIAN AIRLINES APPELLANT VERSUS

# 20 MRS. OLOWU MOTUNROLA ::::: ::::::::: ::: :: ::: ::: RESPONDENT

#### (Appeal from the decision of the High Court of Uganda at Kampala before Hon, Justice M. S. Arach- Amoko deliaered. on the 25th d.au ol September 2OO2)

# JUDGEMENT OF HON. L. E. M. I{ASA i'lKqw'p\_q{

30 This appeal is, instituted by /Uriopiun Airlines which hereinafter I shall refer to as the appellant. It is brought against the judgement and orders in High Court Civil Suit No.917 of 1997 dated 25lO9l2OO2 and passed in favour of Olowu Motunrola, the respondent.

Briefly, the background of the appeal is that at the material time the respondent was a passenger/client of the appellant as a frequent flier Lagos Entebbe route. On 51211999, the respondent was a passenger on the appellant's aircraft from 40 Lagos via Addis Abaaba and Nairobi to Entebbe Airport.

Before boarding the aircraft she luggage, and identified it. It was loaded on the aircraft. duly checked in all her tagged and subsequently

On arrival at Entebbe Airport, her final destination, on 10 6102 11999, she noticed that part of her luggage was missing. It was lost and/or had been converted by the servar:ts of the appellant working in the course of their employme:rt. The respondent made and produced a list of the lost items, r,alued at U. S. D. 3476. Further, she explained that, with permission the of the area manager of Lagos Airport, Smeili Shabira, she paid 10kg as excess luggage. Immediately the respondent discovered the loss ofher second piece ofluggage, she lodged a complaint with Kampala area m€rnager at that time, Solomon Debebe. The said manager issued her with a document 20 headed "Loss Baggage Questionnaire". A copy thereof was annexed as annexture A. Although the respon.'.ent acted promptly to fill the questionnaire and returned it tc the office of area manager, her missing bag was not recovered. Further, despite the repeated demands and reminder.s the respondent was not paid USD 3746 (being the value of her lost property). It was contended for her that as a common carrier the appellant had a duty to safely deliver her luggage at Entebbe Airport which was not done. The failure to do so was seen as gross negligence on the part of the appellant. For the 30 aforesaid reason the respondent instructed her counsel to sue the appellant for recovery of U. S. D 3476 or its equivalent in Uganda shillings. She also prayed for general damages for the inconvenience and suffering due to the loss of her bag as well as costs.

- The appellant denied any liability. As far as it was concerned, 10 the respondent was not entitled to any reliefs, In the alternative and without prejudice, if given any reliefs, such would be limited under the terms of contract of carriage with the appellant. Besides, the respondent on 5l02 199 checked in 30kgs of luggage at Lagos which on arrival at Entebbe it was found to be more by 25kgs. In the premises the appellant would not accept to pay for loss of goods that had not been declared. The appellant relied on the testimony given by their a-rea manager, Mr. Wamala and the Warsaw Convention governing the contractual relationship between the parties. 20 Judgement was passed in favour of the respondent against the appellant as follows: - a) USD 6()0 being the value of 3Okgs of the lost piece of luggage - b) Uganda shillings 3 million, for the inconvenience and suffering

# c) Costs under article 22lal of the Warsaw Convention.

Dissatisfied with the decision of the High Court, the appellant instructed its counsel, Katende Ssempebwa and Co. Advocates

to lodge the appeal to this court. The appeal is based on the following four grounds.

- aa I The learned judge erred in law and fact when she relied on the oral testimony of the respondent (PWl) to vary the terms of the contract of carriage on the question of contractual weight of luggage in question. - 2 The learned judge erred in fact in holding that the respondent checked in two pleces of luggage weighing 30 kilograms each thereby coming to wrong conclusion. - 3 The learned judge erred iu law and fact in the award of USD 60O as special damages to the respondent for loss ofbaggage. - 4. The learned judge erred in law in the award of general damages of shs. 3 million for inconvenience to the plaintiff and that it was inequitable to grant that remedy when the respondent had come to court with unclean hands. (slcf" - (a) This Court was prayed as follows:- to allow the appeal and set aside the judgement and orders of the High Court

- (b) In the alternative and without prejudice, this Court finds that the respondent could not have lost the awarded kilograms of baggage in contractual weight. - 10 (c) In the further alternative, that this Court finds that the award of shs. 3 mllllon to the respondent in general damages is inequitable in the circumstances of the case.

# (d) Costs of the appeal.

At the hearing of this appeal the appellant was represented by Mr. Madrama whilst Mr. Furah appeared for the respondent. Mr. Madrama presented his submissions orally. On the other 20 hand, on application, Mr. Furah filed written submissions. Although Mr. Madrama had opted to argue the four grounds separately in that order he apparently did not strictly conform to it because his submissions on ground 1 covered ground 2, too. He intimated to court that on ground No.2, he decided to adopt his submissions on ground 1. He was justified for there is a lot of overlapping between the two.

### Ground 1

Mr. Madrarna's contention on ground No.l is that the learned 30 trial judge erred in law when she relied on the oral evidence of the respondent to vary the terms of contract of carriage on the

question of contractual weight of luggage checked in by the respondent on the appellant's aircraft on 512199 at Lagos Airport. Mr. Madrama pointed out that from the air ticket Exhibit P2 and excess baggage ticket (Exhibit P3) the respondent checked in and paid for 2 pieces of luggage both 10 weighing 30 kilograms. The air ticket Exhibit P.2 entitlement was 20 kilograms and the paid up excess laggage weight was 10 kilograms. It is, hence, not disputed that both tickets, Exhibit P.2 and Exhibit P.3, showed the total weight of the baggage checked in by the respondent on boarding the plane at Lagos as 30 kilograms. However, on arrival at Entebbe Airport, the respondent received 55 kilograms which was in excess of the total checked in baggage namely exhibits P,2 and P.3. Contrary to documentary evidence, Exhibits P.2 and P3, the respondent in her evidence in chief testified that when her 20 2 bags were weighed at Lagos, the check point, she had 62 kilograms of baggage. She, however, said she did not know the weight of each bag separately, because they were weighed together. Believing her testimony the learned judge came to the following conclusion:-

> ' Both the alr ticLet Brhibit P.2 and the excess baggage ticket show that the plalntlff checked in 2/3O pieces of luggage. E ftibit P.3 shows that she paid \$ 6637. LO for excess welght. She has explained that the manager allowed her to pay lokgs instead of all the excess weight above her 20 kilograms

allowance. The luggage weighs 62 kilograms. She is not to blame tf they rendered only 6O kilograms).

In the absence of any contrary evidence I believe the plaintif?s version and find that the luggage was checked at Lagos Airport in the manner described in the plaint and ln plaintlf?s testimony'

Relying on sections 91 and 92 of the Evidence Act, the Warsaw Convention and Uganda Revenue Authority vs Steven Mabosi, SCCA No.26 of 1995 Vol. II (1996) KALRI, Mr. Madrama submitted that the oral testimony the learned judge believed was inadmissible. It was erroneous for her to admit oral evidence of the respondent to vary the tickets to admit the weight of 62 kilograms.

With regard to ground No.2, counsel criticized the learned trial judge for holding that the respondent checked in 2 pieces of luggage weighing 30 kilograms each and thereby came to a wrong conclusion.

In reply on ground 1, it was submitted for the respondent that it was far fetched. The area manager of Lagos as a representative in course of his employment would be estopped from denying that he committed the appellant to another 30 contract other than that contained in the tickets which constituted the contract between parties. Counsel vehemently

argued that 3' the excess baggage ticket" is an addendum to the air ticket which impliedly can be read together. As far as he was concerned, the learned trial judge was justified to rely on the respondent's testimony so far as it was not rebutted or controverted by DWl, Wamala Sulaiman, the appellant's 10 representative in Uganda. Surprisingly, he confessed he did not know what had transpired at Lagos Airport on 5lO2 199. In the alternative and without prejudice, counsel for the respondent submitted that the learned judge's reliance on the oral testimony of the plaintiff did not and does not have the effect of amending/altering and or varying the contract of carriage. To him it is vital in assisting the court to establish that the air ticket (pursuant) to article 3(2f of Warsaw Convention as amended by the Hague (1935) was prima facie evidence of the conclusion and conditions of the contract of 20 carriage. Counsel, further, argued that the appellant's manager in Lagos, acting in the course of his employment expanded the terms of carriage both by oral agreement and through an excess baggage ticket. For the aforesaid reason, he submitted, that the learned trial judge could not be faulted for admission and reliance on that evidence especially as counsel for the appellant did not lead any evidence in rebuttal. Counsel prayed court to dismiss this ground

30 On ground 2, counsel for the respondent corrected counsel for the appellant that the learned trial judge made no finding to

the effect that the pieces of luggage checked in by the respondent weighed 30 kilograms each. She, therefore, did not reach an erroneous or wrong decision. He explained that the learned trial judge found as a fact that:-

10 \*Both the air ticket (Drhibit P.2) and excess baggage ticket, show that the plaintiff checked in 2l30 pieces of luggage..............she explained that the manager allowed her to pay for 10 kilograms instead of all the excess weight above her 2O kilograms allowance. The luggage weighed 62 kilograms ......the Judgement'

In any case in the absence of separate weights of each bag the learned trial judge could not be faulted for the findings she made. Counsel prayed court to reject this ground too.

For convenience and due to overlapping I proposed to consider the two grounds together. The answer to the issues and arguments advanced by both counsel for the parties will not be hard to find. This is because most of them involve points of law. First and foremost it is not disputed by the parties that the contract of carriage between them is governed by the Warsaw Convention.

Article I provides as follows:-

30 " 1. This Convention applies to all international carriage of persons, luggage or goods performed by air crafts for reward. It applies equaIIy.............."

Article 3(1) (c) of the con vention makes it clear that the Warsaw Convention provides passengers ticket delivered to a passenger shall contain notice that the Warsaw Convention may be applicable and that the convention limits liability to carriers for death or personal injury and in respect of loss or 10 damage to baggage. Article 3(2) further provides that the

> " The passenger's ticket shall constitute prima facle evidence of the conclusion and conditions of the contract ofcarriage".

Clearly under article 1 the Warsaw Convention is applicable to all international flights by a carrier. The respondent in this case was covered. She was bound by the Convention when she decided to travel with the appellant's aircraft. Counsel 20 cannot be right to suggest that the reliance on the respondent's oral evidence by the learned judge assisted to establish the applicability of the convention to the contract between the parties. It was not necessar5r. For example, it is a well known fact that as a passenger travelling in economy class, the respondent's entitlement was 20 kilograms as indicated on the ticket itself. That she had never been informed so by the appellant is immaterial. All the information regarding the provisions of the Convention is written on the air ticket. In any case ignorance of the law is not a defence. 30 Other relevant articles applicable to this appeal include 18, 19, 22 and 24. I, therefore, accept Mr. Madrama's

submissions that the terms of the contract in this appeal and the liabilities between the parties a-re governed by the Warsaw Convention. Mr. Furah's submissions that the first ground of this ground is far fetched is not supported by evidence. On the contrary I find it pertinent.

With due respect in the circumstances of this case, the learned trial judge should not have relied on the respondent's evidence to vary the provisions of the convention relating to this matter. The air ticket and excess baggage ticket contained the necessa4r information regarding the weight of the bags checked in. There was no justification for the respondent's oral evidence to account for the figures of 60 and 62 kilograms which the respondent claimed to be the total weight of her luggage at the check in point, at Lagos Airport. The law is very 20 clear on admission of intrinsic evidence. In this regard I am fortified by the provisions sections 90, 92 of the Evidence Act and the holding of Karokora JSC ln Uganda Revenue Authority vs Steven Mabosi C. A No.26l95. I agree with the said Justice that extrinsic evidence cannot be used to var5/, alter the contents of a written document. This holding is in line with the principle laid down in sectious 90, 91 and 92 of the Evidence Act (supra). Section 91 reads as follows:-

t\$Ihen the terms of a contract or of a grant or of any other disposition of property have been reduced to the form of a document and in all cases in which any

matter is required by law to be reduced to the form of a document, no evidence except as mentioned in section 79, shall be glven in proof of the terms of that contract, grant or other disposition of property or of such matter except the document itself, or secondary evidence of its contracts ln cases ln which secondary evidence under the provlslons hereln before contalned".

I appreciate the point raised by counsel for the respondent in respect of the role played by the a-rea manager at Lagos, who authorized payment of 10 kilograrns excess luggage. It is true he was and is a representative and agent of the appellant and he would commit the appellant in appropriate cases. In the instant appeal, however, even if the manager was acting in 20 course of his duty as a representative of the appellant he could not have committed the appellant because this Court cannot sanction what is illegal. The commitment, in view, of the position of the law on the matter, would be of no effect. Once an illegality is brought to the attention of the court, it overrides all questions of pleadings including admissions made therein.

Similarly the doctrine of estoppel raised by the learned counsel for the respondent would not apply for the sarne reasons. I 30 accept the submission of Mr. Madrama that had the learned trial judge not admitted the respondent's oral testimony she

would have come to a different conclusion. For the aforesaid reasons this ground must succeed and I find it is sufficient to dispose ofthe appeal.

On ground No.2 a lot of the evaluation above is a-lso applicable 10 to it. Firstly without the admission of the oral evidence by the respondent, there is no way the learned judge would have reached the decision she did in the case. She believed the respondent that her luggage weighed 60 kilograms. Apparently she assumed that each piece of luggage weighed 30 kilograms hence the award of special damages of USD 600 for the lost bag. I am unable to accept the submission of Mr. Furah that the learned judge did not make a finding to that effect. Apparently she based her decision on that proposition cited by counsel which in essence was a finding that each 20 piece of luggage weighed 3O kilograms. For the reasons already stated above the omission by counsel for the appellant to adduce evidence in rebuttal was not detrimental to his case. Further, even if it was true each piece weighed 30 kilograms there is the problem of the received bag having excess weight of 25 kilograms. The bag was weighing 55 kilograms instead of 30 kilograms. As it was rightly calculated by counsel for the appellant, the respondent in those circumstances would be entitled to USD 1O0 only for a balance of 5 kilograms. However, tainted with illegality the respondent would not be 30 able to recover that amount. The court will not condone an illegality and base a decision on it. As the record stands

before court this ground must also succeed. In the result the remaining two grounds cannot stand as these two grounds would dispose of the appeal. This appeal, would, hence, be allowed. I would set aside the judgement and orders of the High Court. Bearing in mind the circumstances of this appeal I

10 would order each party to bear its own costs.

> Since A. E. N. Mpagi-Bahigeine J. A and C. N. B. Kitumba J. A hold similar views, by a unanimous decision of this Court this appeal is allowed. Each party will bear its own costs.

Dated at Kampala this....................................

Kump L. E. M. MUKASA-KIKONYOGO 20 HON. DEPUTY CHIEF JUSTICE

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDEN AT

#### **KAMPALA**

### CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. JUSTICE C. N. B. KITUMBA, JA

#### CIVIL APPEAL NO. 30 OF 2003

ETHIOPIAN AIRLINES :::::::::::::::::::::::::::::::::::APPELLANT **VERSUS** $10$

MRS. OLOWU MATUNROLA ::::::::::::::::::::::::::::::::::::

[Appeal from the decision of the High Court of Uganda at Kampala before Hon. Justice M. S. Arach-Amoko delivered on the 25th day of September 2002]

$15$

$\mathsf{S}$

#### **JUDGEMENT OF A. E. N. MPAGI-BAHIGEINE, JA**

I have read in draft the judgement of the Hon. Deputy Chief Justice. I agree that the appeal should succeed and have nothing more to add.

Dated at Kampala this ....................................

abilent

**A. E. N. MPAGI-BAHIGEINE JUSTICE OF APPEAL**