Air Cote d ivoire v Ibeachusi Okechukwu (CIV APP 89 of 2017) [2018] SLCA 1280 (22 November 2018)

+ CIV/APP. 89/17 INTHE COURT OF APPEAL OF SIERRA LEONE BETWEEN: AIR COTE D'IVOIRE - APPELLANT SIAKA STEVENS STREET FREETOWN AND IBEACHUSI OKECHUKWU - RESPONDENT 28 GODERICH STREET FREETOWN

Coram

Hon Mr.Justice Reginald.S Fynn JA Hon Mr. Justice Desmond B. Edwards JA ~ Hon Me, Justice Eldred Taylor Camara JA. Ibrahim S. Villab for the Appellant Augustine K.Musa for the Respondent Judgment Delivered this 22! Dav: of November 2018 Notice of Appeal and Grounds Of Appeal

1. By Notice of Appeal dated and filed on the 13M of December 2017 the Appellant herein appealed to this Honourable Court agsins: the Judgment of the Hon Mrs. Amy Wright J dated 27° November 2017. Ihe grounds ofthe Appeal areas stated as follows:

1. That the Leamed Judge erred in law and misdirected herself when she considered! oniy paragraphs 4 and 8 of the Affidavit in Opposition in concluding that there was no defence 1 the action on merit

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2. That the Learned Judge erred in law and misdirected herself when she widened the scope of Order 16 of the HCR CI No 8 of 2007, the purpose of which is not to conduct a mini trial but to ensure that there are no triable issues.

3. ‘That the Learned Judge erred in law and consequently misdirected herself when she concluded on the basis of paragraph 8 of the affidavit in opposition that a 3" party interfered with the luggage of the respondent without calling evidence from both sides to determine whether this occurred .

4. ‘That the Learned Judge erred in law when she only relied on Article 18.1 and completely disregarded Article 22(2) of the Warsaw Convention of 1929, which states as follows:-

“In the carriage of registered luggage and of goods, the liability of the carrier is limited to the sum of 250 francs per kilogram, unless the consignor has made, . at the time when the package was handed over to the cartier, a special declaration of the value at the delivery and has paid a supplementary sum if the cease so requires.”

5. That the Learned Judge erred in law and fact when she held in her conclusion at paragraph : 16 of the said judgment that “the Appellant herein was negligent and ‘or complicit in the interference that resulted in the loss of items the respondent claims were missing from his i luggage by confirming that the piece of paper the respondent found in his luggage was proof that his suitease was interfered with (6. ‘That the judgment was against the weight of the evidence.

Background

2. The plaintiff in the High Court - Fast Track Commercial Court now the respondent had issued 4 Writ of Summons as amended dated 25" Aprii 2017 seeking reliefs against the defendant now Appellant as follows, i. Recovery of items lost in the Pisintis!'s haggage carried on flight No.JiF769 of the Defendant's airline.

“ ii, In the alternative, recovery of the value of the said items in the baggage amounting to the tune of Le 50,875, 000 (Fifty Million Eight Hundred and Seventy-Five Thousand Leones) iii. Interests pursuant to Section 4 of the Law Reform (Miscellaneous Provisions) Act, Cap. 19 of the Laws of Sierra Leone 1960. iv. Damages for breach of contract, and v. Costs.

3. The amended writ of summons was served on the defendant on the 28" of April 2017 and the defendant now Appellant entered appearance to the writ of summons on the 26" Of April 2017. On the 19° of May 2017. the plaintiff applied to the High Court presided by Justice Amy Wright * J for Summary Judgment on all the reliefs 2s stated on the writ of summons aforementioned including damages for breach of contract. The said application was supported by the affidavit of Theachusi Okechukwu, the plaintiff herein, sworn to on the 19™ of May 2017 who attempted to verify the facts and deposed that in his belief the defendant does not have a defence to the action. ‘That affidavit had a few exhibits to wit exhibit 101-104. 101 was a letter of complaint of missing % items dated 23° February 2017 received 3 days after disembarkation: 102 was a leter dated §" é March 2017 writen by the solicitor for the plaintiff to the defendant as a follow up requesting amicable settlement of the issue: exhibit 103 is the amended writ of summons issued in this action while 104 is the memorandum and notice of Appearance

3. The particulars of claim of the plaintiff showed that he travelled from Nigeria to Sierra Leone en route Abijan vie Cote divoire Airline on the 17" of February 2017 and on his arrival afier reaching his destination at home in Freetown he allegedly’ discovered that some items had gone missing from his baggage whilst trvelling on the defendant's airline trom Lagos to Freetown. He however only made @ report about the missing items with the Defendant's office three days after his arrival in Freetown. On the 1“ day of June, 2017. the Appellant's Solicitors Tejan-Cole, Yillah & Bangura tiled an Affidavit in Opposition and evhibited 2 Proposed Defence which they claimed raised table issues:

4. The Leamed Judge considered the application and concluded that there were no issues of questions in dispute which ought to be tied. She granted summary judgment as follows:

. + Recovery of the value of the items lost in the plaintiff's baggage amounting to the sum of Le 50,875,000.00 * Interest at the rate of 18%per annum from the 25" day of April 2017 to tte date of this order ‘+ Damages assessed at 15,000,000.00 ‘+ Costs assessed at 5,000,000.00 in favour of the plaintiff

5. It is against the said Judgment that the Appellant has appealed to this Honourable Cour. Filing of Synopsis of arguments

6. Both parties relied on their respective synopsis. The parties also made oral submissions emphasizing on the points they had raised in their respective synopsis. This court heard counsel on both sides.

Arguments

7. Grounds 1, 2, 3. 5 and 6 can be grouped together and concern whether the case as dealt with A by the presiding Leamed Judge Hon Justice Amy Wright J was suitable for disposal under Order 16 of the High Court Rutes C! No § 2007 dealing with applications for Summary Judgment. The appeliant’s counsel argued that the case presented was unsuitable for Summary Judgment for several reasons, chief among which, was that 1) the nature of the claim indorsed on the writ of summons included damages for which there can be no summary judgment but that the leamed Judge went on to give summary judgment of damages assessed at Le15.000,000.00 there being with no assessment of damages to arrive at same and 2) that the facts of this case disclosed several triable issues. He referred the court to Order 16 rule I(1) which states “where in an action to which this rule applies a defendant has been served with a statement of claim and ‘has entered appearance, the plaintiff may on notice apply to the court for judgment agaiust the defendant on the ground that the defendant has no defence to a claim included in the writ or to. particular part of the claim except as to the amount of damages claimed”.

8. He referred to the writ of summons for which damages were claimed and to the judgment for “hich the sum of Le 15,000,000 was assessed! as damages and submitted that the same ought not have formed part of the summary judgment and thet this having been done as evinced by the

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