Yussif Vrs. Air France KLM (C2/257/2023; C2/257/2023) [2025] GHACC 1 (9 January 2025)

IN THE CIRCUIT COURT (8), ACCRA, GHANA, HELD ON THE 9TH DAY OF JANUARY, 2025, BEFORE H/H JOJO AMOAH HAGAN SUIT NO. C2/257/2023 BETWEEN RUKUYATU YUSSIF……………………………………PLAINTIFF 252 AGBOGBA JUNCTION-ATOMIC AGBOGBA-ACCRA SUING PER HER LAWFUL ATTORNEY FLIGHT CLAIM SERVICES 44 MOTORWAY ROAD COMMUNITY 18 OFF SPINTEX ROAD TEMA AND AIR FRANCE-KLM…………………………………….. DEFENDANT AIRPORT ROAD, ACCRA. JUDGMENT Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 1 of 23 Introduction 1. The plaintiff once travelled on the defendant’s airline whereon her baggage could not be traced by the defendant. When she realised this she complained to the defendant whose officers requested for about twenty one days to find the said baggage. When the defendant failed to produce the baggage after twenty- one days, the plaintiff requested compensation from the defendant for the loss of the said baggage but the defendant failed to pay thereby resulting in the instant suit for the following reliefs: a. “Payment of an amount of SDR 1,288.00 which is equivalent to $1,800 USD or its Cedi Equivalents (Ghc21,000.00) or its cedis equivalents (sic) being the amount for loss of Plaintiff’s baggage. b. Interest on the said amount at the current commercial rate till the final date of payment. c. A cedi equivalent of amount of Ghc10,000.00, being the cost of this litigation (sic) d. Cost e. Any other reliefs this Honourable Court may deem fit.” 2. The defendant admitted the plaintiff’s right to claim compensation for the loss of her baggage but given that the plaintiff’s attorney claimed the sum of 1,288 Special Drawing Rights (SDRs) representing the total value of the items in the baggage as well as the cost of the baggage itself, the defendant requested the said attorney to provide a full list of items in the baggage indicating the value of each item in the baggage as well as receipts showing the cost of purchasing Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 2 of 23 the baggage and the items contained therein, and the bank details of the attorney. The defendant claimed it made these requests to substantiate the amount of compensation being claimed by the plaintiff. Because the plaintiff’s attorney failed to provide what was requested, the defendant could not process the compensation claim. Therefore, the defendant counterclaimed for recovery of legal fees paid by the defendant to its lawyers to defend this action, and interest on the said fees from the date of payment until the plaintiff pays the fees. 3. At the hearing of the application for directions, the only issue agreed upon between the parties was whether the plaintiff was entitled to the sum of USD 1,288 the equivalent of 1,288 SDRs with interest being compensation for the loss of her baggage. The law on international carriage by air 4. The legal regime governing international carriage by air which covers the present dispute is the Convention for the Unification of Certain Rules for International Carriage by Air usually called the Montreal Convention which per Article 29 of the Convention provides that, “[i]n the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.” Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 3 of 23 5. Thus, the Montreal Convention is the exclusive means for the recovery of damages suffered by a plaintiff in the course of international air travel and pre-empts all state law claims—see El Al Israel Airlines, Ltd. v. Tseng, 525 U. S. 155, 161, 119 S. Ct. 662, 664 (1999), Ugaz v. American Airlines, 576 F. Supp. 2d 1354 (S. D. Fla. 2008)1, Knowlton v. American Airlines No. RDB-06-854, 2007 WL 273794 (D. Md. Jan. 31, 2007), and Tei & Anor v Messrs Ceiba Intercontinental [2018-2019] 1 GLR 714. 6. As rightly submitted by the plaintiff in her address, the Montreal Convention has been incorporated into the laws of Ghana by the Second Schedule to the Ghana Civil Aviation (Amendment) Act, 2016 (Act 906). Article 1 (1) of the Convention provides that it “applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.” 7. Regarding the liability of carriers, the relevant provisions of paragraph (2) of Article 17 of the Montreal Convention stipulate that, “[t]he carrier [the defendant herein2] is liable for … loss of … checked baggage upon condition only that the event which caused the … loss … took place on board the aircraft or during any period within which the checked baggage was in the 1 According to the Court, “[f]or all air transportation to which the Montreal Convention applies, if an action for damages falls within one [of] the treaty’s damage provisions, then the treaty provides the sole cause of action under which a claimant may seek redress for his injuries.” 2 See McCarthy v. American Airlines 581 F. Supp. 2d 359 (E. D. N. Y. 2008) Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 4 of 23 charge of the carrier.” The Convention further provides in paragraph (3) of Article 17 that, “[i]f the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at the expiration of twenty-one days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage.” 8. Furthermore, the Convention by its paragraph (2) of Article 22 originally generally limited the liability of the carrier to 1,000 SRDs. It is provided therein that, [i]n the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1,000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination. 9. Consequently, in the absence of a special declaration of interest which may entitle a passenger to a sum in excess of the limit but equivalent to the value of the interest declared, the liability of a carrier was limited to 1,000 SDRs. However, it Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 5 of 23 bears noting that this monetary limit is reviewable at five-year intervals per paragraph (1) of Article 24 of the Convention. Pursuant to this provision the International Civil Aviation Organisation’s current SDRs for loss of baggage is 1,288 SDRs which is to be reviewed soon.3 Relevant facts and opposing contentions of both parties 10. The facts from the pleadings show unequivocally that the defendant was the plaintiff’s carrier in respect of her flight from France to Ghana. The pleadings further show that the defendant lost her baggage on the flight. Whilst the plaintiff contends that she is entitled to 1,288 SDRs as a fixed amount payable for the loss, the defendant contends that the plaintiff is not automatically entitled to the sum afore-stated. Instead, the plaintiff had the burden of producing evidence to show that she was entitled to the full amount of 1,288 SDRs because, in its opinion, its liability under the circumstance was up to 1,288 SDRs. Therein lies the question before the Court. Issues 11. Now, once it has been established that the defendant lost the plaintiff's baggage on the flight, it is unquestionable that the plaintiff is entitled to compensation but to what extent? Is the plaintiff entitled automatically to 1, 288 SDRs or she bears the burden of producing 3 https://www.icao.int/Newsroom/Pages/International-air-travel-liability-limits-set-to-increase,- enhancingcustomer-compensation--.aspx accessed 29 November 2024 Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 6 of 23 evidence to entitle her to the said sum? Submissions of the plaintiff 12. In her written address, the plaintiff contended that the liability of the defendant for the loss of her baggage was strict. Additionally, she acknowledged that the Montreal Convention placed limits on the amount of compensation a passenger could claim for the loss of her baggage but argued that she was not required to prove the value of the items in her lost baggage for purposes of compensation. In her opinion, “if it is ascertained that a passenger travelled by an airline with her baggage but upon arrival, her baggage she checkedin (sic) with could not be traced after twenty-one days after arrival, the baggage is declared lost and passenger is entitled to compensation within the limit of SDR1288 (sic)” Submissions of the defendant 13. “Within the limit of SDR1288” as submitted by the plaintiff supra is a tacit admission that a passenger is not entitled to the full amount of 1,288 SDRs automatically. This was the contention of the defendant who argued that the plaintiff was not entitled to 1,288 SDRs as of right. Relying on paragraph (2) of Article 17 of the Montreal Convention, the defendant admitted the plaintiff was entitled to some compensation except that the amount involved could only be determined by the defendant if the plaintiff had provided a basis for the assessment. A fortiori the defendant who served millions of customers daily would suffer in its business should it automatically grant the maximum limit to every customer who claimed compensation for the loss of their baggage. Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 7 of 23 14. Furthermore, the defendant submitted that by the provisions of paragraph (2) of Article 22 of the Montreal Convention and paragraph 10.2.3 of the General Conditions of Carriage (Terms and Conditions) found on its website, to claim the full amount of 1,288 SDRs the plaintiff was mandated to either declare the value of the items in her baggage if they exceeded the maximum liability, or purchase an insurance. The plaintiff did neither of the two. According to the defendant, despite several requests in eleven emails to her lawful attorney, the plaintiff, and her lawful attorney failed to furnish it with additional information on the lost items to enable it to make the requisite assessment and process payment of the appropriate compensation. This information was necessary given that in the absence of a special declaration of interest or perhaps insurance, the content of the lost baggage was peculiarly within the knowledge of the plaintiff. Analyses 15. From the clear tenor of paragraph (2) of Article 17 and (2) of Article 22 of the Convention, a carrier’s absolute liability arises upon damage to a passenger’s baggage by, inter alia, loss. However, the carrier’s liability is limited in line with the avowed purpose of paragraph (2) of Article 22 which is to ‘limit the liability of air carriers’4. In further expatiation, the European Court of Justice (the European Court) has accordingly held that “a limitation of the compensation so designed enables passengers to be compensated easily and swiftly, yet without imposing a very heavy burden of damages on air carriers, which would be difficult to determine and to calculate, and would be liable to undermine, and even paralyse, the economic activity of those carriers”5 In particular reference to compensation for damage to baggage by loss, 4 Walz v Clickair SA[2020] (C-63/09, EU:C:2010:251, paragraph 34) 5 Id at p 36 Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 8 of 23 the Court in Espada Sánchez and Others v Iberia Lineas Aereas De Espana SA 5, held that ‘as regards baggage, the limit laid down constitutes, pursuant to Article 22(2) of the Montreal Convention, a maximum limit for compensation, which cannot therefore accrue automatically and in full to any passenger losing his baggage.’ A detailed reasoning and a better illustration of the ratio in Espada Sanchez is provided by the Court in SL v Vueling Airlines SA6 which I am inclined reproduce in extenso hereunder. 16. In this case, the claimant travelled to two destinations and did a transit all within Spain on a flight operated by Vueling Airlines. From the facts presented to the Court, she duly checked her baggage with that air carrier. 17. The claimant sued Vueling Airlines before Commercial Court No 9, Barcelona, Spain, seeking compensation corresponding to the maximum limit of 1131 SDRs laid down in paragraph (2) of Article 22 of the Montreal 5 [2012] EUECJ (C-410/11, EU:C:2012:747) 6 https://lawthek.eu/detail/927a75f-f3d4-45e9-b523-95c193b949ec/en/SINGLE> accessed 29 November 2024 Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 9 of 23 Convention (at the time) for the material and non-material damage caused to her by the loss of her baggage on the basis that damage by loss under the Convention was the most serious case of damage to baggage. 18. Despite acknowledging the loss, Vueling Airlines contended that given that the claimant failed to indicate the contents of the baggage, its value and weight or provide documentary evidence of purchases she made in replacement of the personalties misplaced from the baggage it was not obligated to pay the maximum limit but instead offered compensation of EUR 250. According to Vueling Airlines, proof was a necessary condition to entitle a claimant to the maximum limit stipulated in paragraph (2) of Article 22 of the Montreal Convention. 19. Considering the conflicting decisions of the courts in Spain, the Commercial Court No 9, Barcelona referred the following question to the European Court: ‘Where the loss of a suitcase has been established, must the airline compensate the passenger in each and every case with the maximum compensation limit of 1131 SDRs, since that is the most serious of the situations provided for in Articles 17(2) and 22(2) of the Montreal Convention, or is that maximum compensation limit one which can be adjusted by the court, including in the event of loss of a suitcase, in the light of the circumstances, so that the amount of 1131 SDRs will be awarded only if the passenger establishes, by whatever means are permitted in law, that the value of the items and personal effects he or she was carrying in the checked baggage, and of those which he or she had to purchase to replace them, came to that limit, or, failing that, may other criteria be taken into account, such as, for example, the weight of the suitcase or whether the baggage was lost on the outbound or return journey, for the purposes of assessing the non-material damage caused by the inconvenience arising from the loss of Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 10 of 23 the passenger’s baggage?’ 20. The Court identified two essential questions from the reference made: “[f]irstly, whether or not the compensation due under Article 17(2) of the Montreal Convention, read in conjunction with Article 22(2) thereof, to a passenger whose checked baggage which was not the subject of a special declaration of interest in delivery has been lost during any period within which the checked baggage was in the charge of an air carrier, is payable on a fixed-sum basis. Secondly, how the amount of compensation was to be determined if the amount referred to in Article 22(2) of the Montreal Convention is not a sum payable automatically and as a fixed sum.” 21. The Court resolved the vexed issues in the following passage: By the first question, the referring court asks, in essence, whether Article 17(2) of the Montreal Convention, read in conjunction with Article 22(2) thereof, must be interpreted as meaning that the sum provided for in the latter provision as a limit on the liability of an air carrier in the event of destruction, loss, damage or delay of checked baggage which has not been the subject of a special declaration of interest in delivery constitutes a maximum amount of compensation or, on the contrary, a fixed sum payable automatically to the passenger. Pursuant to Article 17(2) of the Montreal Convention, the air carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage ‘upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier’. Consequently, that provision merely establishes the Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 11 of 23 conditions under which air passengers are granted the right to compensation in the event of the destruction, loss or damage of checked baggage. As regards Article 22(2) of the Montreal Convention, the Court has held not only that, in the carriage of baggage, the liability of an air carrier in the case of destruction, loss, damage or delay ‘is limited’ … per passenger, but also that the limit laid down in that provision constitutes a maximum limit for compensation which cannot accrue automatically and in full to any passenger, even in the event of loss of his or her baggage. The Court has also held that the limitation of compensation laid down in Article 22(2) of the Montreal Convention must be applied to the total damage caused, regardless of whether that damage is material or non- material. In that regard, it has stated that the possibility for the passenger to make a special declaration of interest at the time when the checked baggage is handed over to the carrier, under the second part of that provision, confirms that the limit of an air carrier’s liability for the damage resulting from the loss of baggage is, in the absence of any special declaration of interest in delivery, an absolute limit which includes both non-material and material damage. Furthermore, it is apparent from the travaux préparatoires relating to the Montreal Convention that the amounts in the provision of the draft text which subsequently became Article 22 of that convention were intended to be maximum amounts and not fixed sums to be awarded Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 12 of 23 automatically to injured parties. Although that interpretation could be more precisely reflected by using an expression such as ‘cannot exceed’, it was decided to use the expression ‘is limited’, in so far as that expression is commonly used in the case-law developed in relation to the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed in Warsaw on 12 October 1929. In that context, it should also be noted that it does not follow from either Article 17(2) or Article 22(2) of the Montreal Convention that loss of baggage must be regarded as the most serious case of damage to baggage, so that compensation corresponding to the sum laid down in the latter provision would be automatically payable to the passenger harmed merely because such a loss has been established. Those provisions merely list the various cases which may give rise to liability on the part of the air carrier for damage occurring in the carriage of baggage, within the limit laid down in the latter provision, without however establishing a hierarchy among those cases according to their gravity. It follows that the amount of compensation payable by an air carrier to a passenger whose checked baggage which has not been the subject of a special declaration of interest in delivery has been destroyed, lost, damaged or delayed must be determined, within the limit laid down in Article 22(2) of the Montreal Convention, in the light of the circumstances of the case. In the light of the foregoing considerations, the answer to the first question is that Article 17(2) of the Montreal Convention, read in conjunction with Article 22(2) of that convention, must be interpreted Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 13 of 23 as meaning that the sum provided for in that latter provision as the limit of the air carrier’s liability in the event of destruction, loss and delay of, or of damage to, checked baggage which has not been the subject of a special declaration of interest in delivery constitutes a maximum amount of compensation which the passenger concerned does not enjoy automatically and at a fixed rate. Consequently, it is for the national court to determine, within that limit, the amount of compensation payable to that passenger in the light of the circumstances of the case. By the second question, the referring court asks, in essence, whether Article 17(2) of the Montreal Convention, read in conjunction with Article 22(2) thereof, must be interpreted as determining the detailed rules for setting the amount of compensation payable by an air carrier to a passenger whose checked baggage which has not been the subject of a special declaration of interest in delivery has been destroyed, lost, damaged or delayed. It should be recalled that the Court has held that, for the purposes of the compensation provided for under Article 22(2) of the Montreal Convention, it is for the passengers concerned, subject to review by the national court, to establish to the requisite legal standard the contents of the lost baggage It follows from the foregoing considerations that … in the context of actions brought on the basis of Article 17(2) and Article 22(2) of the Montreal Convention, it is for the passengers concerned to establish to the requisite legal standard, in particular by Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 14 of 23 documentary evidence of expenditure incurred in order to replace the contents of their baggage, the harm suffered in the event of destruction, loss and delay of, or of damage to, that baggage, and for the competent national courts to ascertain … that the applicable rules of national law, in particular in relation to evidence, do not render impossible in practice or excessively difficult the exercise of the right to compensation that passengers derive from those provisions. In particular, in a situation where the aggrieved passenger has not adduced any proof of the harm caused by the destruction, loss and delay of, or of damage to, baggage, the factors … such as the weight of the lost baggage and the circumstance whether the loss occurred during an outbound or return journey, may be taken into consideration by the national court in order to assess the harm suffered and to set the amount of compensation to be paid to the aggrieved passenger. However, those factors must not be taken into account in isolation, but must be assessed as a whole. As regards, in particular, the weight of the lost baggage, in so far as, in principle, only the carrier is in a position to provide such evidence, after checking that baggage, it should be borne in mind that, in order to ensure compliance with the principle of effectiveness, if the national court finds that the fact of requiring a party to bear the burden of proof is likely to make it impossible or excessively difficult for such Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 15 of 23 evidence to be adduced, since inter alia that evidence relates to information which that party will not have, the national court is required to use all procedures available to it under national law, including that of ordering the necessary measures of inquiry, in particular the production by one of the parties or a third party of a particular document. In the light of the foregoing considerations, the answer to the second question is that Article 17(2) of the Montreal Convention, read in conjunction with Article 22(2) thereof, must be interpreted as meaning that the amount of compensation due to a passenger, whose checked baggage which has not been the subject of a special declaration of interest in delivery has been destroyed, lost, damaged or delayed, must be determined by the national court in accordance with the applicable rules of national law, in particular in relation to evidence. Those rules must not, however, be any less favourable than those governing similar domestic actions and must not be framed in such a way as to render impossible in practice or excessively difficult the exercise of rights conferred by the Montreal Convention.”(Emphasis added) 22. It follows from the foregoing that the plaintiff is not automatically entitled to 1,288 SDRs by reason of the loss of her baggage in the absence of a special declaration of interest which would entitle her to the said sum or more depending on the circumstance of the case. To claim the entire sum afore- stated or a portion thereof, the Court is mandated to apply Ghanaian rules of evidence on the burden of producing evidence taking due cognisance of Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 16 of 23 whether from the record, the Court may find "that the fact of requiring [the plaintiff] to bear the burden of proof is likely to make it impossible or excessively difficult for such evidence to be adduced, since inter alia that evidence relates to information which [the plaintiff] will not have”. Such due cognisance may be had—depending on the circumstances of the case—not at the point of delivery of judgment but either upon a request for discovery prior to the application for directions stage or during the consideration of that application to enable the plaintiff to prove the quantum of compensation she is entitled to. The plaintiff’s burden of producing evidence 23. The party who bears the burden of producing evidence is the one who asserts [like the plaintiff herein], and the Court’s duty is to determine whether on all the evidence a reasonable mind would conclude that the existence of a fact was more probable than its non-existence—Fosua & Adu-Poku v Dufi (Deceased) & Adu-Poku Mensah [2009] SCGLR 310. Still, on the burden of producing evidence, the Supreme Court has held that “[i]n every civil trial all what the law requires is proof by a preponderance of probabilities … The amount of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved”— Aryee v Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] 1 SCGLR 721, 733. 24. Given the nature of this case, and from the 4th Chamber’s decision in SL, to succeed, the plaintiff must produce documentary evidence of the expenditure incurred to replace the contents of her baggage; the harm suffered in the event of loss of the baggage. That should cater for the current market value of those items for a fairer award. Better still, she may Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 17 of 23 produce evidence of the purchase of these items before they were misplaced. However, where the plaintiff is unable to prove the harm caused by the loss of her baggage, factors such as the weight of the lost baggage and circumstances such as whether the loss occurred during an outbound or return journey, may be taken into consideration by the Court to assess the harm suffered and to set the amount of compensation to be paid to the plaintiff. The European Court opined though that, the aforementioned factors must not be taken into account in isolation, but must be assessed as a whole. What then is the nature of the evidence presented by the plaintiff in proof of her claim? 25. At the trial, the plaintiff testified that her lost baggage contained her personal belongings and receipts of clothes she purchased from Europe. According to the plaintiff, the value of the items in her baggage was over USD 2,800.00. To prove this claim, she tendered an inventory of the items, including the cost of the baggage [Exhibit B]. 26. In respect of this inventory, the plaintiff claimed she bought the lost baggage for USD80.00 in Ghana but said no receipt was issued for the purchase. Apart from the bag, counsel for the defendant examined the plaintiff on the veracity of her claim that she purchased two pieces of Versace perfumes, and a winter jacket en route to Ghana which she claimed was not for use in Ghana, and men’s watches amongst others. 27. Examining the inventory, it goes without saying that it is without more a self- serving document offensive to the rule against narrative and incredulous despite its admission in evidence given that the admission of evidence is not conterminous with the weight the Court may accord to the same, weight and admissibility being distinct within the context of the rules of evidence—In re Wa Na; B. K. Adama (Sub by) Issah Bukari & Anor v Yakubu Seidu [2005-2006] Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 18 of 23 SCGLR 1088. Therefore, it will be necessary to ascertain from the record the existence of other pieces of evidence such as the plaintiff’s disposition to afford such items, documentary evidence of the purchase or ownership of those items, and weight of the baggage, amongst others. 28. In an apparent attempt to challenge the plaintiff’s financial ability to purchase the items listed and the cost of the baggage, counsel for the defendant questioned the plaintiff regarding her income from the following extract from the record, “Q. What do you do for a living? A. I am a general secretary of an interior design company Loncha Limited and a Chief Executive of Rambia Enterprise Q. Tell the court how much you earn for a living. A. In the company I work for let’s say GHC25,000.00 a month and in my own company at least GHC15,000.00 to GHC16,000.00 a month. Q. So you want the court to believe you earn about GHC40,000.00 a month not s? A. Yes. Q. You admit that before this court you have no proof of your claim that you earn about GHC40,000.00. A. I do have. Q. Kindly put it out to the court your proof that you earn GHC40,000.00. A. I don’t have it here but if I am to bring it I can. 29. The plaintiff did not produce any such evidence to substantiate her Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 19 of 23 claim that she earned that much monthly despite the defendant’s counsel’s tacit challenge of her earning capacity. This throws a spanner in the works. 30. In the absence of evidence to substantiate her earning capacity, the plaintiff averred under cross-examination that she had Euros 2,500.00 on her card and spent cash in excess of USD3,100.00, that is, in excess of the total cost of the items contained in Exhibit B. The plaintiff claimed that despite purchasing some items with her card she purchased all the items in Exhibit B with cash. Furthermore, she claimed she put all receipts of the purchases she made [in Exhibit B] with cash in the lost baggage and consequently could not produce documentary evidence to substantiate her claim. I find the plaintiff’s testimony on Exhibit B rather rich. 31. In line with SL, the plaintiff admitted under cross-examination that she had Exhibit B right from when the baggage got lost and could have either replaced them and tendered receipts or invoices or, as submitted by counsel for the defendant, pictures with price tags from the website of the mall from which she allegedly purchased the items. None of these was presented to the Court. 32. Conveniently, she claimed not to have used the spot of cash on her card—proof of which could have been easily obtained through discovery—to purchase any of the items on Exhibit B but rather bought everything in that baggage with cash the receipts [all of the receipts] of which she put in that same missing baggage. She used her card to buy some items but it just happened that none of the items she bought with her card was in the lost baggage. 33. Considering firstly the want of evidence to support her earning capacity, secondly the absence of receipts, invoices or pictures with price tags from the website of the mall from which she allegedly purchased the items, and thirdly the incredulity of her claim of purchasing all the items in Exhibit B [except the Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 20 of 23 baggage] with cash all the receipts of which she put in the same lost baggage and the allegation that none of the items she purchased with her card was in the lost baggage, I find that it is more probable than not that the plaintiff did not have items worth more than USD3,100.00 in her lost baggage. Moreover, the plaintiff failed to produce evidence to show that she is entitled to the maximum of 1,288 SDRs set by Article 22(2) of the Montreal Convention as incorporated. 34. This notwithstanding, as noted earlier, the European Court in SL advised that “… in a situation where the aggrieved passenger has not adduced any proof of the harm caused by the … loss of [the]… baggage …factors … such as the weight of the lost baggage and the circumstance whether the loss occurred during an outbound or return journey, may be taken into consideration by the national court in order to assess the harm suffered and to set the amount of compensation to be paid to the aggrieved passenger.” In this case, the plaintiff testified without challenge that the defendant damaged her 23 kilograms checked baggage by losing it whilst she was on a return journey from France to Ghana. Given the inconvenience the loss of the baggage occasioned to the plaintiff, and “RECOGNISING the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution” contained in the Preamble to the Montreal Convention, I exercise my discretion to award the plaintiff the interbank Cedi equivalent of USD1,700.007 as at May, 2023 when the defendant requested the plaintiff to furnish it with requisite information to process the payment of the compensation which from the record was delayed because of the plaintiff’s default in failing to respond to the defendant’s requests via the various emails tendered by the defendant’s witness. 7 The amount initially proposed by the defendant at Court. Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 21 of 23 35. Although paragraph (6) of Article 22 of the Convention which deals with the issue of costs and other expenses of the litigation and interest authorises the Court as follows: “[t]he limits [in Article 17] shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest” I am neither inclined to award interest on the compensation granted nor legal fees for the same reason—the plaintiff’s default. 36. Regarding the issue of legal fees, the plaintiff’s claim is as bad as the defendant’s counterclaim. It ought to be noted that legal fees cannot be claimed without evidence. There must be evidence before the Court to provide bases for the award and quantum thereof by way of invoices or receipts to show how much costs a party incurred in payments to their counsel—Owuo v Owuo [2017- 2018] 1 SCGLR 780. No such evidence was presented. 37. Consequently, by way of final orders, I hereby order the defendant to pay the plaintiff the interbank Cedi equivalent of USD1,700.00 as of May 2023 as compensation for the loss of her baggage. However, I dismiss all other claims of the plaintiff, and the counterclaim of the defendant. Given the nature of this case and its antecedents, I do not believe it would be altogether proper to award costs after trial. Accordingly, I make no order as to costs. JOJO AMOAH HAGAN CIRCUIT COURT JUDGE Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 22 of 23 COUNSEL ABRAHAM ARTHUR ESQ FOR THE PLAINTIFF DR KWEKU AINUSON ESQ FOR THE DEFENDANT Rukuyatu Yussif v Air France-KLM (Suit No. C2/257/2023) Page 23 of 23