IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
JAMES ATO HALM - (Plaintiff/ Respondent)
EGYPT AIRLINES - (Defendant/ Appellant)
DATE: 6TH JULY, 2017
CIVIL APPEAL NO: H1/59/2017
JUDGES: GYAESAYOR J.A (PRESIDING), LOVELACE-JONHSON J.A, C. SOWAH J.A
AMPONSAH DADZIE FOR APPELLANT
GARY NIMAKO FOR DEFENDANT/APPELLANT
This is an appeal against the decision of the High Court Accra dated the 3rd day of July.
The Plaintiff – Respondent by a writ of summons filed on the 23rd of June 2014 claimed against the
Defendant – Appellants the following reliefs:
Recovery of the sum of USD$3,227.00 or its cedi equivalent being the value of items in the Plaintiff’s luggage which the defendant has misplaced.
Interest on (a) above at the prevailing bank rate from 2nd June 2013 till the date of payment.
Damages for breach of contract.
Cost including legal fees.
It was the case of the Plaintiff that on the 1st of June 2013, he boarded an EgyptAir flight number MS811 from Cairo to Accra and tendered a copy of his airline ticket as Exhibit A. He claimed further that he checked – in a suitcase which was tagged number XH262469. The said suitcase was said to contain expensive items valued at USD$3,227.00 and tendered Exhibit D, a receipt in proof of this. The plaintiff averred further that upon reaching Kotoka International Airport, he realized his luggage had not arrived with the flight. He notified the defendant and filled a complaint form referred to as Lost luggage questionnaire and claims form which was tendered in evidence as Exhibit B yet his luggage was not returned to him. He therefore exchanged several correspondence with the defendant (Exhibits B, B1 – B6) to no avail. He even caused his solicitors to write to the defendant (Exhibit C) also to no avail.
He thus sued for the reliefs endorsed on the writ.
The Defendant’s Case
The defendant did not deny that Plaintiff had boarded the said flight and had checked in luggage with the said tag number. The defendant did not also dispute that the plaintiff’s luggage did not arrive with the said flight and that the plaintiff had notified them about the non-delivery of his luggage.
It was the defendant’s defence that it had referred the matter to its head office in Cairo for investigation and was tracking the lost baggage. Furthermore it’s insurers in Egypt as well as its Legal Advisor in Ghana has been notified for the ‘’necessary actions to be taken’’.
The defendant also disputed the value of the luggage claimed by the plaintiff.
The issues set down for trial at the High Court as raised in the plaintiff’s application for directions are found at pages 14 to 15 of the Record of Appeal are as follows:
Whether or not Plaintiff’s valuables worth US$3,227.00 have been misplaced by the defendant carrier?
Whether or not the Plaintiff is entitled to his claim
Other issues arising out of the Pleadings
The case proceeded to trial after the plaintiff filed his Witness Statement. A previous application for judgment on admissions was subsequently withdrawn. The case was thereafter heard on the merits although the Appellant failed to attend court. A search report filed on the 25th day of August 2015 and found at page 111 of the Record shows clearly that the Appellant was at all material times served with the relevant processes but failed to attend court. The trial court was therefore compelled to take the evidence of the respondent in determining the issues set down. Consequently, the court delivered a rather terse judgment on the 3rd day of July 2015 and gave judgment for the respondent for the reliefs endorsed on the writ of summons.
The defendant on failing to have the judgment set aside, filed a notice of appeal on the 19th of August 2015 which notice of appeal is found at pages 53 to 55 of the Record of Appeal. The Notice of Appeal sets out the following as the grounds of appeal:
That the judgment was against the weight of the evidence contained in the pleadings and other processes filed.
That the learned judge erred in entering judgment on admissions against the defendant / appellant.
Further or other grounds will be filed on receipt of the Record of appeal.
Both parties filed their respective submissions. At the hearing of the appeal, the defendant abandoned ground 2 of the grounds of appeal.
No additional grounds of appeal were filed as intimated by the defendant in the Notice of Appeal. Essentially, the present appeal is hinged on Ground 1 ie, the Judgment is against the weight of evidence. In such a situation, it is the duty of the appellant who relies on this ground to satisfy the court that there were lapses on the part of the trial court in applying the facts and the law to his case. It is therefore his duty to point out those lapses and to satisfy this court that if those lapses had been properly applied to his case, judgment would have been entered in his favour. He loses the appeal if he fails or is unable to do so.
We are supported by this in a number of cases. In the case of Djin v Musa Baako [2007-08] SCGLR 687, it was held that:
“Where an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which, if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against”.
Also, in the case of NLC v Crocodile Matchets (Ghana) Ltd  1 SCGLR 270 it was held at page 277 that:
“an appeal is by way of re-hearing both on the facts and the law; the appellate court is obliged to thoroughly sift the record to see whether or not the facts and conclusions are well supported by the evidence on record and whether the conclusions put on documents were proper and maintainable”.
By Rule 8 of the Court of Appeal Rules, 1997 (C.I. 19), this court is a court of rehearing and we are entitled in the light of the ground of appeal filed to scrutinize the record and to satisfy ourselves that the facts and the law were not properly applied to case of the appellant and thus entitle us to set aside the judgment. This view is supported by the case of Tuakwa v Bosom [2001 – 2002] SCGLR where it was held that:
“An appeal is by way of a rehearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of the evidence. In such a case, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence”.
Applying this to the present case, can it be said that the trial judge in spite of the terse nature of the judgment erred in making the orders that constitute the subject of this appeal?
In the first place, a case is fought on pleadings. Simply put, parties in a suit set forth their respective cases in their pleadings before the commencement of the trial. In the case of Dam v Addo  2 GLR 200, it was held as follows:
“The function of pleadings is to give fair notice of a case which has to be met, so that the opposing party may direct his evidence to the issue disclosed by them. To condemn a person on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded. Dicta of Lord Normand in Esso Petroleum Co., Ltd. v. Southport Corporation  A.C. 218 at pp. 238–239, H.L. adopted and applied”.
In the same case, it was held as follows:
“A court must not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with, that which the party himself puts forward, whether he be the plaintiff or the defendant. Esso Petroleum Co., Ltd. v. Southport Corporation  A.C. 218, H.L.; Fischer & Co. v. Thompson (1904) 1 Ren. 302; Akua Oye v. Baddu (1924) D.Ct. ’21–’25, 116 and Oloto v. Williams (1944) 10 W.A.C.A. 23 applied”.
In this appeal, the defendant is calling upon us to set aside the judgment on the ground that the trial judge assessed damages on the basis of the value of the good lost instead of on the basis of the ‘kilo-weight’ of the lost goods although this was not pleaded in the court below.
The High Court (Civil Procedure) Rules, 2004 (C. I. 47), provides as follows in Order 11 Rule 8(1):
8.(1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality
(a) which the party alleges makes any claim or defence of the opposite party not maintainable; or
(b) which, if not specifically pleaded, might take the opposite party by surprise; or
(c) which raises issues of fact not arising out of the preceding pleading.
In so doing, the appellant, is calling on this court to grant a request which has not been pleaded and this would amount to a jurisdictional error. See the case of Nyamaah v Amponsah  SCGLR 361 where Baffoe Bonnie JSC held at page 365 that:
“It is the duty of the court to make pronouncement on the reliefs that a party seeks. A judge’s omission to grant a relief must be explained with reasons. In all, the court ensures that the issues that it sets itself to deal with will aid it in making justifiable decisions on the reliefs sought. This I think is one of the reasons why relevance of evidence is at the heart of our legal jurisprudence. A judge who makes an order for a relief that was not sought can be held to have exercised a jurisdictional irregularity”.
It must be noted that from the unchallenged record, an application for stay of execution before a Single Justice of the Court of Appeal, was refused on the grounds that the contentions of the defendant before the court were not raised at the High Court and could therefore not be raised on appeal. We agree with that decision.
The failure to plead any fact of limitation of liability as stated in Order 11, Rule 8 of C.I. 47 is fatal to the case of the appellant and we so hold. See the case of Seraphim v. Amua-Sekyi  2 G.L.R. 132, C.A where it was said that the judge could not ex proprio motu raise a defence which was never raised and which could not have been properly raised.
This failure cannot be cured by counsel’s submission that “the common fact known to all travellers local and foreign is that the compensation for lost baggage is based on kilo weight of the checked luggage and not on the perceived value of the lost items”
On this alone, the appeal fails.
It is also obvious that the defendant /appellant realises the futility of basing his case on the provisions of the Ghana Civil Aviation (Amendment) Act, 2016 (Act 906) which became law on the 18th day
February 2016 when he stated in his reply as follows:
‘’It is submitted that if the court is inclined to make a decision to stay clear of issues of retrospective legislation and its effect on present day of legislation is operation, the court will be respectfully urged to consider what the specific Montreal Convention says and states as the applicable rule or legislation.’’
By this he admits that this law does not apply to the judgment which was delivered on the 3rd of July
2015 since the law he seeks to rely on was promulgated on the 18th of February 2016. Indeed, Section 28 of Act 906 provides that the international conventions ratified therein and which counsel for the appellant relies on, takes effect from the date of the commencement of the Act. Clearly the provisions of the said Act 906 cannot avail the appellant in this matter.
We however notice that the plaintiff / respondent made claims for damages for actual loss suffered by him as a result of the non-delivery of his luggage. He was enjoined to prove the actual loss suffered.
Relief (a) as endorsed on the plaintiff’s writ of summons was for the “Recovery of the sum of USD$3,227.00 or its cedi equivalent being the value of items in the plaintiff’ luggage which the defendant has misplaced.” However, at the trial, the plaintiff tendered exhibit D, which was a receipt with a face value of USD$2.648 only which can be found at page 47 of the Record. The plaintiff attempted to explain the variance in the amounts claimed and what was proven during his testimony before the court on the 3rd day of July 2015 as seen at page 49 of the record when he stated as follows:
“I have a receipt of the cost of the items I purchased. It covers some of the items bought. This is because the other luggage that got missing contained the other receipts”.
Counsel for the defendant in his written submissions before this court also stated as follows:
“My Lords, this variation with due respect has been unambiguously explained to the satisfaction of the court below. The variation arises because the Respondent’s missing baggage contained also receipt of other items valued at US$579 which were listed on the claim form but would not show on the receipt tendered in evidence. The receipt containing those other items being part of the missing baggage was therefore unavailable even though the items were accurately identified by the respondent who purchased them. The court below having assessed the overall evidence was satisfied that the Respondent had proved his case”.
Special damages must be specifically pleaded and proved. See the cases of Royal Dutch Airlines Limited (KLM) v Farmex [1989 – 90] 2 GLR 622 and Delmas Agency Ghana Limited v Food Distributors International [2007 – 2008] 2 SCGLR 748.
In the Delmas Case (Supra), the Supreme Court held that where the plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are appropriate.
We find therefore that the award of the entire US$3,227.00 as endorsed on the writ when only US$2648 was proved was erroneous as the extra US$579 was not proven and ought not to have been granted. The respondent was therefore only entitled to the sum of US$2,648.
The respondent is hereby awarded this sum or its cedi equivalent.
We find no reason to interfere with the other awards made by the trial judge in favour of the respondent and hereby affirm same.
The appeal is therefore allowed in part by varying the original award of US$3,227 to US$2,648 only or its cedi equivalent. It is also ordered that the respondent be paid the Judgment sum paid into court less the US$579 or its cedi equivalent and for the latter to be returned to the appellant.