DR. R. S. D. TEI AND ANOTHER vs. MESSR CEIBA INTERCONTINENTAL [2018]DLSC3301

Date	2018-11-07
Suit No.	CIVIL APPEAL NO. J4/02/2018
Citation No.	[2018]DLSC3301

DOTSE JSC (PRESIDING)

YEBOAH JSC

BAFFOE-BONNIE JSC

APPAU JSC

PWAMANG JSC

EMMANUEL GOKA FOR THE 1ST PLAINTIFF/APPELLANT/APPELLANT.

[2018]DLSC3301
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >DR. R. S. D. TEI AND ANOTHER<o:p></o:p>vs.<o:p></o:p>MESSR CEIBA INTERCONTINENTAL<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CIVIL
APPEAL NO. J4/02/2018&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;7TH
NOVEMBER, 2018<o:p></o:p>

EMMANUEL GOKA FOR THE 1ST
PLAINTIFF/APPELLANT/APPELLANT.<o:p></o:p>

</div>CORAM:<o:p></o:p>DOTSE JSC (PRESIDING), YEBOAH JSC, BAFFOE-BONNIE
JSC, APPAU JSC, PWAMANG JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:6.0pt;text-align:center;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGEMENT<o:p></o:p>

</div>PWAMANG, JSC:-<o:p></o:p>This is an appeal against the judgment of the
Court of Appeal dated 29th June, 2017. The background to the case is as
follows; The plaintiff/appellant/appellant, to be referred to as the appellant,
is an international engineering consultant and Executive Chairman of Rockshell
International and Delta Group of Companies. On 5th October, 2014 he boarded an
aircraft of the defendant/respondent/respondent, to be referred to as
respondent, at the Kotoka International Airport, Accra as a fee paying
passenger to fly to Malabo in Equatorial Guinea. The trip was to discuss the
setting up of electricity generation facilities in Equatorial Guinea with the
President of that country and he was in the company of his Executive Secretary
and his Lawyer. As he took his seat on the aircraft a co-passenger opened the
overhead carry-on baggage compartment and a piece of luggage fell on his left
eye and he sustained a cut from which blood flowed. The appellant was given
cotton wool and gentian violet by the staff of the respondent with which his
Executive Secretary managed the flow of blood. That notwithstanding, they
embarked on the flight to Malabo. The injury that the appellant sustained
eventually caused him to lose that eye and he is now one-eyed. <o:p></o:p>He sued in the High Court, Accra for damages and
based his claim on the Montreal Convention and the tort of negligence with
particulars of damages under various heads namely; Pain and Suffering,
Emotional and Psychological trauma, Medical Expenses and Loss of Earnings. From
the record it appears that at the time of filing the writ of summons plaintiff
had not completely lost the use of the injured eye so he did not claim for
permanent disability but at the trial he led evidence to that effect and
claimed damages for disfigurement and permanent disability in his written
address. <o:p></o:p>The respondent, though served with the writ of
summons, statement of claim and Hearing Notices, did not appear to contest the
case. The appellant gave evidence and relied on his witness statement and its
attachments in support of his case and as proof of the high damage he suffered
both to his person and his business. Though the appellant's evidence stood
unchallenged, the trial High Court Judge in her judgment held that since the
injury was caused by the act of a co-passenger and not staff of the respondent,
the appellant had no cause of action against the respondent. She therefore
dismissed the case and the Appellant appealed her decision to the Court of
Appeal. In the written submissions of the Appellant in the Court of Appeal he
stated that he was entitled to be paid damages to the tune of US$17,000,000.00
excluding what he claimed as loss of earnings. The Court of Appeal allowed the
appeal but held that under the provisions of the Montreal Convention there is a
limit to the amount of damages payable by an airline in the event of an
accident that occurred on board its aircraft. According to the court, that
limit was applicable on the facts of this case so they limited the damages
awarded to the appellant to 100,000 Special Drawing Rights (SDRs) as stated in
the Convention of 1999. The appellant has appealed against the quantum of
damages arguing that the Court of Appeal erred in their interpretation of the
relevant provisions of the Montreal Convention so we should reverse their
decision and hold that the cap on damages in the Convention is not applicable
in this case. <o:p></o:p>The treaty referred to simply as the Montreal
Convention is actually called; Convention
for the Unification of Certain Rules Relating to International Carriage by Air
signed at Montreal on 28th May, 1999. It replaced an earlier one of the
same title signed on 12th October, 1929 and usually referred to as the Warsaw
Convention. There are some of the provisions of the Warsaw Convention that are in pari materia with the Montreal
Convention so courts' interpretation of such provision are usually&nbsp; cited in the construction of the Montreal
Convention which is relatively new. These Conventions were conceived as an
international mechanism to protect both airlines and passengers such that a
carrier does not out of one incident suffer damages so high as to render it
bankrupt and passengers too can get paid reasonable compensation for damage
without being required to prove&nbsp;
liability against an airline for every incident, which can be a
Herculean task in many cases. The Conventions regulate the liability of air
carriers and cap the amount of damages payable in the event of liability under
certain conditions but from time to time the limit is revised to cater for
inflation, the latest review being the one in 2009. These Conventions became
part of the domestic laws of a majority of the countries in the world that
acceded to them including Ghana and Equatorial Guinea and are subject to
interpretation in various courts globally. Because of the international
character of the Conventions, every interpretation has to take into account the
expectations of the many member parties to the Convention and ensure
international continuality of construction of particular provisions having
regard to the stated objective of the Conventions which is to achieve
unification on the matters covered. <o:p></o:p>Article 17(1) of the Convention provides as
follows;<o:p></o:p><span lang="EN-GB" style="font-size:
12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:
&quot;Times New Roman&quot;;mso-bidi-font-family:Tahoma;mso-font-kerning:18.0pt;
mso-fareast-language:EN-GB">Article 17 - Death and injury of passengers -
damage to baggage <o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Times New Roman&quot;;mso-bidi-font-family:Tahoma;
mso-fareast-language:EN-GB">1. The carrier is liable for damage sustained in
case of death or bodily injury of a passenger upon condition only that the
accident which caused the death or injury took place on b</main>