Ethiopian Airlines v Mrs. Olowu Motunrola (Civil Appeal No.30 of 2003) [2005] UGCA 83 (5 August 2005)

THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA CORAM:   HON. JUSTICE LE.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 MRS. OLOWU MOTUNROLA ::::::::::::::::::::::::: RESPONDENT (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) JUDGEMENT OF H0N. LE.M. MUKASA-KIKONYOGO, DCJ This appeal is, instituted by Ethiopia Airlines which hereinafter I shall refer to as the appellant. It is brought against the judgment and orders in High Court Civil Suit No.917 of 1997 dated 25/09/2002 and passed in favor 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 5/2/1999, 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 duly checked in all her luggage, and identified it. It was tagged and subsequently loaded on the aircraft.   On arrival at Entebbe Airport, her final destination, on 6/02/1999, she noticed that part of her luggage was missing. It was lost and/or had been converted by the servants of the appellant working in the course of their employment. The respondent made and produced a list of the lost items, valued at US.D. 3476. Further, she explained that, with permission of the area manager of Lagos Airport, Smeili Shabira, she paid 10kg as excess luggage. Immediately the respondent discovered the loss of her second piece of luggage, she lodged a complaint with Kampala area manager at that time, Solomon Debebe. The said manager issued her with a document headed “Loss Baggage Questionnaire”. A copy thereof was annexed as annexure A. Although the respondent acted promptly to fill the questionnaire and returned it to the office of area manager, her missing bag was not recovered. Further, despite the repeated demands and reminders 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 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, the respondent was not entitled to any relief. In the alternative and without prejudice, if given any relief, such would be limited under the terms of contract of carriage with the appellant. Besides, the respondent on 5/02/99 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 area manager, Mr. Wamala and the Warsaw Convention governing the contractual relationship between the parties. Judgment was passed in favour of the respondent against the appellant as follows: (a)      USD 600 being the value of 30kgs of the lost piece of luggage (b)      Uganda shillings 3 million, for the inconvenience and suffering c)       Costs under article 22(a) 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. “1.       The learned judge erred in law and fact when she relied on the oral testimony of the respondent (PW1) 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    pieces of luggage weighing 30 kilograms each thereby coming to wrong     conclusion. 3.       The learned judge erred in law and fact in the award of USD 600 as special       damages to the respondent for loss of baggage. 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. (sic)” (a)      This Court was prayed as follows: - to allow the appeal and set aside the judgment 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. (b)      In the further alternative, that this Court finds that the award of shs. 3 million 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. Madrarna whilst Mr. Furah appeared for the respondent. Mr. Madrarna presented his submissions orally. On the other 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 No2, 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. Madrama’s contention on ground No. 1 is that the learned 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 5/2/99 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 weighing 30 kilograms. The air ticket Exhibit P.2 entitlement was 20 kilograms and the paid up excess baggage 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 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 air ticket Exhibit P.2 and the excess baggage ticket show that the plaintiff checked in 2/30 pieces of luggage. Exhibit P.3 shows that she paid $ 6637.10 for excess weight. She has explained that the manager allowed her to pay l0kgs instead of all the excess weight above her 20 kilograms allowance. The luggage weighs 62 kilograms. She is not to blame if they rendered only 60 kilograms. In the absence of any contrary evidence I believe the plaintiff’s version and find that the luggage was checked at Lagos Airport in the manner described in the plaint and in the plaintiff’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) KALR1, 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 contract other than that contained in the tickets which constituted the contract between parties. Counsel vehemently argued that” 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 DW1, Wamala Sulaiman, the appe11ant’s representative in Uganda. Surprisingly, he confessed he did not know what had transpired at Lagos Airport on 5/02/99. 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(2) of Warsaw Convention as amended by The Hague (1935) was prima facie evidence of the conclusion and conditions of the contract of carriage. Counsel, further argued that the appellants 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. 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: “Both the air ticket (Exhibit P.2) and excess baggage ticket, show that the plaintiff checked in 2/30 pieces of luggage……. she explained that the manager allowed her to pay for 10 kilograms instead of all the excess weight above her 20 kilograms allowance. The luggage weighed 62 kilograms… the Judgment” 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 1 provides as follows: “1. This Convention applies to all international carriage of persons, luggage or goods performed by air crafts for reward. It applies equally………” Article 3(I) (c) of the convention 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 damage to baggage. Article 3(2) further provides that the ”The passenger’s ticket shall constitute prima facie evidence of the conclusion and conditions of the contract of carriage”. Clearly under article 1 of 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 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 necessary. For example, it is a well known fact that as a passenger traveling 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. Other relevant articles applicable to this appeal include 18, 19, 22 and 24. I, therefore, accept Mr. Madrama’s submission that the terms of contract in this appeal and the liabilities between the parties are governed by the Warsaw Convention. Mr. Furah’s submissions that the first ground of this appeal 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 tria1judgeshou1dnothaverc1iedoritherespondent’s, evidence to vary the provisions of the convention relating to this matter. The air ticket and excess baggage ticket contained the necessary 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 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 in Uganda Revenue Authority vs. Steven Mabosi C.A N0.26/95. I agree with the said Justice that extrinsic evidence cannot be used to vary, alter the contents of a written document. This holding is in line with the principle laid down in sections 90, 91 and 92 of the Evidence Act (supra). Section 91 reads as follows: “When 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 given 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 in cases in which secondary evidence under the provisions herein before contained”. 1 appreciate the point raised by counsel for the respondent in respect of the role played by the area manager at Lagos, who authorized payment of 10 kilograms 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 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 same reasons. I 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 of the appeal. On ground No.2 a lot of the evaluation above is also applicable 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 piece of luggage weighed 30 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 100 only for a balance of 5 kilograms. However, tainted with illegality the respondent would not be 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 judgment and orders of the High Court. Bearing in mind the circumstances of this appeal I 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 5th day of August 2005. L.E.M. MUKASA-KIKONYOGO HON. DEPUTY CHIEF JUSTICE

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