Wakilii

Ethiopian Airlines v Alfred Gborie (Civil Appeal No. 32 of 1998)

High Court · [2002] UGHC 43 · 2002 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court arising from a suit for breach of contract and negligence concerning lost baggage
Decision
Special damages award reduced; general damages and interest confirmed; appellant liable for 3/4 costs of appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a court cannot award special damages exceeding the amount specifically pleaded and proved. Award of Shs 2,600,000 reduced to Shs 2,400,000. The exclusion clauses in the air ticket and Warsaw Convention did not apply because the baggage was neither checked (not weighed, no baggage check issued) nor unchecked (taken from passenger). The airline entered a separate collateral contract of carriage by accepting custody of the baggage and was liable for breach of that contract. Appeal allowed in part on quantum only.

Outcome

Special damages award reduced; general damages and interest confirmed; appellant liable for 3/4 costs of appeal

Facts

The respondent, a Sierra Leonean student at Makerere University, travelled from Freetown to Entebbe via Accra and Nairobi on the appellant airline's flight in January 1997. At Accra, the appellant's staff took his hand baggage, marked it with a baggage identification tag, and promised to deliver it at Entebbe. The baggage was neither weighed nor issued with a baggage check. On arrival at Entebbe, the baggage was not delivered. Despite the respondent's repeated inquiries at both Uganda Airlines and Ethiopian Airlines offices, the baggage was never found. The respondent sued for breach of contract and negligence, claiming Shs 2,400,000 in special damages comprising the value of lost property (US$800 converted to Shs 900,000), transport expenses to trace the baggage (Shs 500,000), and costs of fresh research for his dissertation (Shs 1,000,000). The Chief Magistrate awarded Shs 2,600,000 special damages and Shs 1,500,000 general damages. The appellant appealed, arguing that the award exceeded what was pleaded and that liability should be limited under the Warsaw Convention and the exclusion clauses printed on the air ticket.

Issues

  1. Whether the trial magistrate erred in law by awarding special damages of Shs 2,600,000 when only Shs 2,400,000 was pleaded.
  2. Whether the terms and conditions on the air ticket formed part of the contract and applied to limit the airline's liability for lost baggage.
  3. Whether the trial magistrate erred in refusing to take judicial notice of the Warsaw Convention 1929 as amended by the Hague Protocol 1955.
  4. Whether the trial magistrate erred in awarding damages that contravene specific provisions of the Warsaw Convention 1929 (as amended).

Orders

  • Appeal allowed on ground 2 and dismissed on grounds 6, 7 and 8.
  • Award of special damages reduced from Shs 2,600,000 to Shs 2,400,000.
  • Award of general damages of Shs 1,500,000 confirmed.
  • Interest at court rate on special and general damages from date of judgment till payment in full confirmed.
  • Three-quarters of the costs of the appeal awarded to the respondent.

Rules and key headnotes

Special Damages — Requirement of Pleading and Proof — Award Cannot Exceed Amount Pleaded
Special damages must be specifically pleaded and strictly proved. A court has no power to award special damages exceeding the amount pleaded in the statement of claim, even where evidence might support a higher figure. To do so would constitute an award of damages neither pleaded nor proved.
Exclusion Clauses — Collateral Contracts — Separate Contract of Carriage
Where an airline accepts custody of a passenger's baggage under circumstances that fall outside the standard terms for checked or unchecked baggage, a separate collateral contract of carriage arises. Exclusion clauses in the air ticket and international conventions do not apply to limit liability for breach of such a collateral contract.
Baggage Carriage — Warsaw Convention Applicability — Checked and Unchecked Baggage Defined
The Warsaw Convention's liability limitations apply only to baggage that is either checked (weighed and issued with a baggage check) or unchecked (remaining in the passenger's possession). Baggage that is taken from the passenger by the airline without weighing or issuing a baggage check falls outside the Convention's scope and is governed by ordinary principles of contract and tort.
International Conventions — Judicial Notice — Application in Uganda
The Warsaw Convention applies in Uganda by virtue of the Civil Aviation Statute No. 3 of 1994, which requires the Civil Aviation Authority to carry out its functions consistently with the Chicago Convention and other international civil aviation conventions. Courts are entitled to apply the Convention where its terms are applicable to the facts.
Negligence — Bailment — Duty to Exercise Reasonable Care in Custody of Goods
An airline that accepts custody of a passenger's baggage outside the standard procedures for checked or unchecked baggage impliedly undertakes to exercise reasonable care to deliver the baggage to its destination. Failure to deliver the baggage without explanation constitutes both breach of contract and negligence.

Legislation cited (2)

  • Civil Aviation Statute No. 3 of 1994 s.33(1)
  • Civil Aviation Statute No. 3 of 1994 s.2(1)

Cases cited (6)

  • Senyakazana v Attorney General (1984) HCB 48
  • Haji Asumani Mutekanga v Equator Growers (Civil Appeal No. 7 of 1995)
  • East Africa Road Services Ltd v G.S. Davies Co. Ltd (1965) EA 676
  • Masaba -Vs- Bank of Uganda
  • Chapleton v Barry Urban District Council [1940] 1 KB 532
  • Hollier v Rambler Motors [1972] 2 QB 71

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ethiopian Airlines v Alfred Gborie (Civil Appeal No. 32 of 1998) [2002] UGHC 43 (7 February 2002)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.