Ababio Vrs Ghana Airways Limited And Another (HI/141/2007) [2008] GHACA 21 (05 June 2008);

Flynote: 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL  -  A C C R  A

 

CORAM:-  ARYEETEY, J.A. [PRESIDING]

                   KUSI-APPIAH, J.A.

                   DUOSE, J.A.

 

HI/141/2007

                                                                                            THURSDAY 5TH JUNE, 2008

 

PETER KOBINA ABABIO                             …    PLAINTIFF/APPELLANT

          V  E  R  S  U  S

(1)  GHANA AIRWAYS LIMITED       

       (IN OFFICIAL LIQUIDATION)             …    DEFENDANTS/RESPONDENT

(2)  MR. SARPONG (a.k.a OSOFO)      

 

 

                      --------------------------------------------------------

                                     J  U  D  G  M  E  N  T

                      --------------------------------------------------------

 

DUOSE, J.A.:-  This is an appeal from the judgment of the Fast Track Division of the High Court, Accra dated 21st of March 2005.

At the trial the Plaintiff/Appellant sued for the following:                                                (1)  General damages for loss of opportunities and enhancement occasioned

       by willful act of the Defendants in breaching their contract of carriage

      of the Plaintiff to the United States of America resulting in the lapse

      of his Diversity Immigration Visa on 29th of March 2004.

(2)  An order for the payment of special damages of ¢200,000,000.00        

                  being the amount Plaintiff spent in applying for the visa and other

                  expenses made during the said application.

  1. Further and other reliefs as the court may deem fit
  2. Costs.

The facts on record are as follows:    The Plaintiff/Appellant won the Lottery under the United States of America Diversity Immigrant Visa Programme.  He was therefore issued with an immigrant visa dated 30th September 2003 to expire on 29th March 2004.  On Friday 26th of March 2004 the Plaintiff/Appellant decided to embark on his journey to the United States of America.  He purchased a ticket from the 1st Defendant/Respondent on the same day and was booked to travel at 12.30 p.m. to New York.  He duly presented himself on time for pre-departure procedures.  At the last security check point he met the Second Defendant/Respondent who was on duty as a Security Officer of the 1st Defendant/Respondent.  His duty was to examine the traveling documents of passengers and to confirm their genuiness or otherwise.  The 2nd Defendant/Respondent examined the Plaintiff/Appellant’s visa under the Ultra Violet Light, and observed that the security features did not show up.  As a matter of fact the visa was expected to fluoresce under the Ultra Violet Light.  But the Plaintiff/Appellant’s visa did not.  The 2nd Defendant/Respondent doubted the genuiness of the visa and after consulting his immediate superior officer DW1 referred the visa and the holder to the fraud office of the Immigration Service for further investigation.  According to 2nd Defendant, this action was taken to ensure that Plaintiff/Appellant fulfilled condition 10 on the Plaintiff/Appellant’s ticket, Exhibit 3.  I quote condition 10 of Exhibit 3.

             “Passengers shall comply with Government travel requirements,

               present exit, entry and other required documents and arrive at

               airport by time fixed by the carrier or, if no time is fixed early

               enough to complete departure procedures.”

            Further according to 2nd Defendant/Respondent it was the policy of the Government of the United States of America to penalize Airlines which landed passengers without genuine documents.  The penalty could be up to USD 3,500 per passenger.  I have seen the Plaintiff/Appellants ticket Exhibit ‘B.’  It is a one way ticket in the sum of USD 848.80.

            It is not clear from the records what steps the fraud office of Immigration Service took before referring the Plaintiff/Appellant’s visa to the Embassy of the United States for verification.  However the referral for verification would imply or be evidence of dissatisfaction with the quality and or genuiness of Plaintiff/Appellant’s visa.

The Plaintiff/Appellant’s visa was rapidly expiring.  The following two days were Saturday and Sunday, non working days.  In the morning of 29th March at about 0.9.00 the Immigration Office completed paper work involved in referring the Plaintiff/Appellant’s visa for verification and proceeded to the Embassy of the United States.  Exhibit ‘C’ was obtained from the Vice Consul of the Embassy of the United States of America and presented to the 1st Defendant/Respondent at midday 29/3/04.  Exhibit ‘C’confirmed the genuiness of the Plaintiff/Appellant’s visa with the following warning or remark.  “However this visa expires today, the 29th March 2004 at midnight.  If the holder of this visa arrives in the Untied States later than midnight tonight, U.S. time, there is no guarantee that he will be admitted to the United States by the U.S. Immigration Service.”

            From simple reconning of time, Ghana time GMT is four hours ahead of U.S. time.  So that at 12.00 Ghana time the Plaintiff/Appellant’s visa had a life line of sixteen hours.  It takes approximately between 10 to 12 hours to fly directly to New York from Accra.  This is a fact which must receive judicial notice.    According to the 1st Defendant frantic efforts were made to procure alternative immediate flight for Plaintiff/Appellant to beat the time deadline without success.  Thus the Plaintiff/Appellant’s attempt to relocate to the United States of America was aborted.

            The pith or the ratio decidendi of the judgment appealed can be found in paragraphs 2, 3 and 4 of page 4 of the judgment which is the same as page 173 of the records.

                  “It appears to me that the Plaintiff will have to lead evidence

                    to establish the negligence on the part of the defendant in

                    their duty which negligence has caused him the loss he is

                    complaining of.  Was the defendant negligent in deciding

                    to refer the Plaintiff visa to the Immigration Fraud Office?

                    I don’t think so.  It is in their duty to exercise discretion to

                    call on the Immigration Authorities when in doubt of any

                    travel document, in this case the visa. 

                         At the point where his visa was suspected, Plaintiff told the court

                    he had never met the 2nd defendant before and either had he

                    entered into any quarrel or dispute with him.  Mr. Jerry Sarfo Darko,

                   who the Plaintiff called as his witness told the court he was also

                   travelling that day and was with the Plaintiff when the incident

                   happened.  He had nothing to say against the 2nd defendant

                   attitude that day.  I will find there is no evidence of bad faith

                   or capriciousness established against the 2nd defendant.

                        The evidence is clear that it was the Immigration Authorities who

                   decided to refer the visa for verification at the American Embassy.

                   There is no evidence defendant should be held culpable for any act

                    of referral to the embassy by the Immigration Authorities.”

            The trial judge therefore dismissed the claim of the Plaintiff/Appellant.  Aggrieved by the decision of the trial court the Plaintiff/Appellant filled the following grounds of appeal

            1.   Since the Plaintiff/Appellant had a genuine visa and passport to

                   travel to the United States of America for further studies and life

                    development within the time frame prescribed by the visa and since

                    the Appellant contracted with Respondents carriers to carry to the

                    United States of America before the expiration of the of the visa

                    but respondents withheld his travel when there was no basis to do

                    that resulting in the expiration of Appellant’s visa.  The learned

                    trial Judge misdirected himself and occasioned a grave mis-

                    carriage of justice when he held liable for the failure of the Plaintiff

                     to travels before the deadline.

                2.  That the learned trial Judge did not examine the evidence of the   

                     Defendants when the evidential burden of persuasion was on them

                     in alleging that the Plaintiff did not have a valid visa.

                3.  The learned trial Judge erred in law and therefore occasioned a

                      Grave miscarriage of justice when he found inspite of evidence to

                      the contrary that the defendants were not negligent.

                 4.  Further grounds of appeal will be filed on receipt of the Record

                      of Appeal.

            Now ground one of this appeal is essentially an issue whether or not the

2nd Defendant/Respondent in the performance of his duty negligently, or incompetently found the visa of the Plaintiff/Appellant defective and whether in arriving at that decision 2nd defendant/respondent acted unilaterally.  The matter was in argument in sum that even though the Immigration office re-examined the papers of the Plaintiff/Appellant, and confirmed the genuiness thereof to 2nd Defendant/Respondent, the 2nd Defendant /respondent was adamant.  That in a show of arrogance persisted on questioning the genuiness of the visa and refused to accept the second or better opinion of the Immigration Office, refused to admit the Plaintiff on board the plane and put off his mobile phone to cut off further communication with the Immigration fraud office.  That as a result the Immigration fraud office was compelled by the attitude of the 2nd Defendant/

Respondent to refer the visa to the U.S. Embassy for verification.  The foregoing is a strong case for Plaintiff/Appellant regarding negligence and or the degree of incompetence resulting in the abortion of the Plaintiff/appellant’s travel to the U.S.A.  Sections 10(1) and 11(1) of the Evidence Decree N.R.C.D. 323 would require the Plaintiff/Appellant to call an officer from the Immigration Fraud Office to testify on that point.  It is patent from the records that no such officer was called for the purpose of confirming the Plaintiff/Appellant’s accusations of 2nd Defendant’s arrogance, intransigence, and incompetence and his refusal to accept contrary assessment of the Immigration Fraud Office in respect to the defectiveness or otherwise of the visa.  Having failed to introduce sufficient evidence to avoid a ruling against him on this issue I am at loss to find a basis for his complaint on this matter.

            In any case where as in this case, the question of the defectiveness or otherwise of a  visa depends on the interpretation of an electronic or physical re-action to ultra violet light there is very little room for error.  It is unfortunate that 2nd Defendant was not specific in his evidence as to what he described as “security features.”  He did not also tell what colours he expected to show up when the visa flouresced and whether the re-action of the Plaintiff’s visa was nil reaction.  However whatever the criticism, the fact remains that Plaintiff/

Appellant was unable to produce evidence to contradict 2nd defendant’s finding.

In the same vein he also failed to prove negligence simpliciter or negligence arising from incompetent performance.  The appeal therefore fails on this ground and it is accordingly dismissed.

            With respect to ground two of the appeal it is regrettable to state that the burden of persuation never moved to the Defendants at the trial.  By filing the suit the way he did, the Plaintiff/Appellant was expected to first and foremost produce enough evidence to the effect that in the performance of his duty as such security officer, the 2nd Defendant performed his duty in efficiently by either allowing irrelevant issues to becloud his judgment or that he did not take into consideration all the relevant issues which would enable him to form reasonable opinions and take equally reasonable decisions.  Or in the alternative that in arriving at his decision that the visa was suspect, the 2nd Defendant/Appellant did not go through the right or all the procedural steps before drawing his conclusion.  Hence the trial judge’s declaration.  “It appears to me that the Plaintiff will have to lead

                  evidence to establish the negligence on the part of the defendant

                  in their duty which negligence has caused him the loss he is

                  complaining of.”  See paragraph 2 of page 4 of the judgment same as page 173 of the records.  Frankly I do not see any reason to fault the judgment of the trial judge.  The appeal fails on this ground too and accordingly it is dismissed.

            Ground three of the appeal it seems is premised on the fact that the US Embassy confirmed the genuiness of the Plaintiff’s visa.  Superficially that may be so.  Yet in a matter as serious as this there is the need to know the process whereby the US Embassy concluded that the visa in question was valid.  No doubt the U\S Embassy was the custodian of other information relating to the visa which the Defendants were not privy to.  Therefore merely tendering Exhibit ‘C’ can not without more constitute sufficient grounds for faulting the Defendants.

            It is the law as quoted by learned counsel for the Plaintiff/Appellant that “the tort of negligence is committed when damaged, which is not too remote is caused by the breach of a duty of care owed by the defendants to the Plaintiff.  In traditional terminology the ingredients of liability are a duty of care, breach and

damage…”  However in all these matters commonsense and reasonableness constitute other considerations which will inform a court in considering whether what happened can constitute an actionable tort.  The trial court found that no actionable tort had been proved before him, and we agree with him entirely

           This ground equally fails and is dismissed.

 

 

 

 

                                                                                   [SGD.]  I.D. DUOSE

                                                                                      JUSTICE OF APPEAL

 

 

 

 

 

 

I agree.   There will be no order as to costs.              [SGD.]  B.T. ARYEETEY

                                                                                         JUSTICE OF APPEAL

 

 

 

 

 

 

I also agree.                                                                  [SGD.]  F. KUSI-APPIAH

                                                                                          JUSTICE OF APPEAL

 

 

 

 

 

 

 

COUNSEL: -   MRS. VICTORIA BARTH FOR APPELLANT HOLDING

                          NENE AMEGATCHER’S BRIEF.

 

                         MR. EMMANUEL AMOAH FOR RESPONDENTS.

 

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