AERO CONTRACTORS CO. (NIG) LTD v.OGUINE & ORS

CITATION: (2018) LPELR-46764(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON WEDNESDAY, 28TH NOVEMBER, 2018Suit No: CA/L/313/2014

Before Their Lordships:

MOHAMMED LAWAL GARBA Justice, Court of AppealJOSEPH SHAGBAOR IKYEGH Justice, Court of AppealJAMILU YAMMAMA TUKUR Justice, Court of Appeal

BetweenAERO CONTRACTORS COMPANY OF NIG. LTD - Appellant(s)

And1. MR. KINGSLEY OGUINE2. MRS. ESTHER CHIKA OGUINE3. MRS GRACE AJUKA4. MISS ELIZABETH CHISOM OGUINE

- Respondent(s)

RATIO DECIDENDI1. APPEAL - INTERFERENCE WITH AWARD OF DAMAGES: Circumstances in

which an appellate court will interfere with award of damages made by a trial Court"Now the law is trite that while this Court has the authority to review an awardmade for damages by a trial Court the circumstances in which it is empowered arenarrow and limited to where; (a) The grant by the trial Court was predicated on awrong principle of law; (b) Where the Trial Court did not take into considerationrelevant facts; or(c) Where the amount is too high or too low; See: UBN PLC V. CHIMAEZE (2014)LPELR - 22699 (SC); VIRGIN ATLANTIC AIRWAYS V. AMARAN LPELR 447 85 (A),UMAR & ORS V MANAGING DIRECTOR FHA ABUJA & ANOR (2018) LPELR -44703(CA)."Per TUKUR, J.C.A. (Pp. 17-18, Paras. D-A) - read in context

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2. AVIATION LAW - AIR CARRIER LIABILITY: Position of law on limitation of liabilityof an air carrier and the applicability of such limitation"The main ground for disagreement is whether the limitation of liability on theAppellant's part to $1,000.00 (One Thousand Dollars only) as provided in Articles22(2) of the Montreal Convention apply to the circumstances of this appeal.The first port of call in the resolution of this issue is to state that it is clear from theevidence on record that the Appellant is liable to the Respondents for the loss oftheir personal belongings in the two large bags wrongly routed to Abuja. This is inline with the straightforward provision of Article 17 of the Montreal Convention,that is: The air carrier is liable for damage sustained in case of destruction or lossof, or damage to checked baggage if the event that caused the destruction, or lossor damage, took place on board the aircraft or during any period within which thechecked baggage was in the charge of the carrier. Article 22(2) of the Conventionindeed limits the liability of the Airline. This is the simple meaning of its provisions,which are herein reproduced thus:"In 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 eachpassenger unless the passenger has made, at the time when the checked baggagewas handed over to the carrier, a special declaration of interest in delivery atdestination and has paid a supplementary sum if the case so requires. In that casethe carrier will be liable to pay a sum not exceeding the declared sum, unless itproves that the sum is greater than the passenger's actual interest in delivery atdestination."? The learned trial Judge was well aware of correct principles of lawwith regards to the circumstances of the case before him and did take due note ofthem. He however did not apply the limitation of liability reflected above on thegrounds that the actions of the Appellant falls within the parameters of situationswhere the limitation would not apply. It is indeed correct to state that where theloss of baggage (not cargo) was occasioned by the negligence or wilful misconduct,the liability principle above will not apply. The foregoing is a correct interpretationof the clear provisions of Article 22(5) of the Convention, which provides thus: Theforegoing provisions of paragraphs 1 and 2 of this Article shall not apply if it isproved that the damage resulted from an act or omission of the carrier, its servantsor agents, done with intent to cause damage or recklessly and with knowledge thatdamage would probably result; provided that, in the case of such act or omission ofa servant or agent, it is also proved that such servant or agent was acting withinthe scope of its employment.The decision of this Court in the case of EMIRATE AIRLINE v. AFORKA & ANOR(2014)LPELR-22686(CA),is clearly to the effect that the above stated provision applies toclaims for baggage.? It is settled beyond any form of controversy that ininterpreting a Statute or written agreement, the Court ought not consider specificsegments in isolation, but look at them in relation with other provisions of theStatute or agreement as a whole. The combined effect therefore of Article 22(2)and (5) of the Montreal Convention is that the limitation of the Carrier's liability willnot apply to cases of negligence where the subject matter of the claim is baggage.The rules as to cargo are different."Per TUKUR, J.C.A. (Pp. 8-11, Paras. C-B) - read incontext

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3. AVIATION LAW - DOMESTIC AIR TRAVEL: The applicable laws governingdomestic air travel in Nigeria"Both parties and the trial Court are correct in agreeing that the provisions of theConvention for the Unification for Certain Rules relating to International Carriage byAir 1999 (the Montreal Convention) apply to air travel in Nigeria, this is the effect ofthe provisions of Section 77 (1) & (2) of the Civil Aviation Act of 2006, whichrepealed the Warsaw Convention of 1929 and gave the Montreal Convention forceof law. The Civil Aviation Act domesticated the Montreal Convention and providedthat the provisions of the Montreal Convention, as contained in the Civil AviationAct and as amended from time to time, shall have the force of law. It fullyincorporated the Montreal Convention and modified it to be applicable to domesticcarriages within Nigeria. There is therefore no doubt that the Montreal Conventionforms the basis of liability of air operators to passengers in domestic air carriage inNigeria. See:VIRGIN ATLANTIC AIRWAYS v. AMARAN (2018) LPELR-44785 (CA)."PerTUKUR, J.C.A. (Pp. 7-8, Paras. D-C) - read in context

4. COURT - JURISDICTION: Conditions that must be satisfied before a Court iscompetent to exercise its jurisdiction in respect of any matter"It is also correct to state that there are specific conditions that must be met beforea Court can properly assume jurisdiction over a case. The applicable principleswere clearly laid down in the popular case of Madukolu v. Nkemdilim, and recentlyrestated in the caseOSI v. ACCORD PARTY & ORS (2016) LPELR-41388(SC) (P. 15,Paras. B-E) Per SANUSI, J.S.C of thus: "Before a Court can assume Jurisdiction on amatter or appeal it must be satisfied that the following conditions are met orsatisfied, namely: (i) That it is properly constituted regarding the number andqualification of its member as the case may be. (ii) That the subject matter of theaction or appeal is within its Jurisdiction as governed or donated to it by Law. (iii)That the action or appeal is initiated by due process of Law; and, (iv) Any conditionprecedent to the exercise of its Jurisdiction must be fulfilled or met. See Madukoluv. Nkemdilim (ALL NLR 687); Dangana Anor v. Usman & 4 Ors (2012) 2 SC (pt III)NURTW & Anor v. RTEAN & Ors (2012) 1 SC (pt I) 119." See: GOVERNING COUNCILOF NTI, KADUNA & ANOR v. NASU (2018) LPELR-44557(CA); NDIC v. MOHAMMED &ORS(2018) LPELR-44744(CA); and JEGEDE v. AFE & ANOR (2017)LPELR-43232(CA)."Per TUKUR, J.C.A. (Pp. 21-22, Paras. C-C) - read in context

5. DAMAGES - NATURE OF DAMAGES: Meaning of damages"The rules as to damages are trite. Damages can be described as compensation inmoney given to a successful plaintiff in compensation for loss or harm suffered byhim. Put in another way, Damages refer to the money paid or awarded to aclaimant or a successful plaintiff in a civil action. Damages in their fundamentalcharacter are compensatory. See: UBN PLC v. CHIMAEZE (2014) LPELR-22699 (SC);PRESENTATION NATIONAL HIGH SCHOOL & ORS v. OGBEBOR (2018)LPELR-44784(CA); and J. I. EFEMINI & SONS (NIG) LTD v. UBA PLC (2018)LPELR-44153(CA)."Per TUKUR, J.C.A. (P. 13, Paras. C-F) - read in context

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6. DAMAGES - SPECIAL DAMAGES: How to plead and prove special damages"The two most common forms of damages, and which the trial Court awarded inthis matter are special damages and general damages. The Supreme Court in thecase of IGHEDO & ANOR V. PHCN (2018) LPELR-43863 (SC) Per ARIWOOLA, J.S.C.(Pp. 55-56, Para. C), gave a succinct exposition of the rules that apply to when andhow special damages should be awarded thus: "It is trite law that "where theprecise amount of a particular item has become clear before the trial, eitherbecause it has already occurred or so becomes crystallized or because it can bemeasured with complete accuracy, this exact loss must be pleaded as specialdamages." In the recent case of AJIGBOTOSHO v. RCC (2018) LPELR-44774 (SC) PerMUHAMMAD, J.S.C. (Pp. 20-21, Paras. E-A), the Supreme Court stressed theimportance of proving every item claimed before an award of special damages maybe granted when it held thus: "It is settled that a claim for special damagessucceeds only on the strict proof of the specifically pleaded facts in relation to thesum claimed. Where items of special damages are not specified and strictly provedas in the instant case, recovery of same will not be granted."See: YENKARTI & ANOR v. ABBAH & ORS (2017) LPELR-43032(CA); and EKIYE v.FRCN (2018) LPELR-44116(CA). The implication of the above is that once theClaimant is able to prove the specific heads, then he is entitled to the specialdamages claimed."Per TUKUR, J.C.A. (Pp. 13-15, Paras. F-A) - read in context

7. DAMAGES - GENERAL DAMAGES: Guiding principles for the award of generaldamages"General damages are said to be damages which the law presume and which flowfrom the type of wrong complained about by the victim. They are compensatorydamages, which require no specific pleading or proof but are solely within thediscretionary power of the trial Court to grant. This Court in the case of CHIA V.FIRST BANK & ANOR (2018) LPELR-44140(CA) (Pp. 9-10, Paras. G-D), Per OTISI,J.C.A stated:- "General damages are such damages as the law will presume to bedirect natural or probable consequence of the act complained of. They are such asthe Court would award in the circumstance of a case, in the absence of anyyardstick with which to assess the award except the expectations of a reasonableman. Unlike special damages, they need not be specifically pleaded and proved;general damages arise from inference of law; Yalaju-Amaye v AssociatedRegistered Engineering Contractors Ltd (1990) LPELR-3511(SC); Incar (Nig) Ltd vBenson Transport Ltd (1975) LPELR-1512(SC); Kopek Construction Ltd v Ekisola(supra) also reported in (2010) LPELR-1703(SC); Xtoudos Services Nigeria Ltd vTaisei (WA) Ltd (2006) LPELR-3504(SC)." See: ELF PETROLEUM v. UMAH & ORS(2018) LPELR-43600 (SC); KUBURI INTL TRADING CO. LTD & ANOR v. MUSTI &ANOR(2018) LPELR-44004(CA); and OKANU v. OKANU & ANOR (2018)LPELR-45021(CA)."Per TUKUR, J.C.A. (Pp. 16-17, Paras. A-A) - read in context

8. DAMAGES - AWARD OF DAMAGES: Object of an award of damages"The whole essence of the award of damages is to put the person damnified by theact of the defendant in the position in which he would have been if he had notsuffered the damage for which he is being compensated. Damages are awarded onsound legal principles and not on sentimental or Arbitrary grounds. See: ANAMBRASTATE SANITATION AUTHORITY & ANOR V. EKWENEM 2009 LPELR - 482 (SC);SOETAN & ANOR V. OGUNWO (1975) LPELR, 3089 (SC)."Per TUKUR, J.C.A. (P. 18,Paras. D-F) - read in context

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9. JURISDICTION - PROCEDURAL/SUBSTANTIVE JURISDICTION: Distinctionbetween procedural/substantive jurisdiction"There is however a distinction between a procedural jurisdiction issue and anissue of substantial jurisdiction. The Supreme Court in the case of A.G KWARASTATE & ANOR v. ADEYEMO & ORS (2016) LPELR-41147(SC) (Pp. 14-15, Paras. E-C)Per RHODES-VIVOUR, J.S.C., gave a comprehensive exposition of this distinctionthus:"Jurisdiction is a question of law. There are two types of jurisdiction: 1. Jurisdictionas a matter of procedural Law 2. Jurisdiction as matter of substantive Law. Alitigant may waive the former. For example a litigant may submit to a proceduraljurisdiction of the Court where a writ of Summons has been served outsidejurisdiction without leave or where a litigant (the defendant) waives compliance bythe claimant of pre-action notice. No litigant can confer jurisdiction on the Courtwhere the Constitution or Statute says that the Court does not have jurisdiction.Why is jurisdiction as a matter of procedural law allowed to be waived but notallowed in the case of substantive law. I gave two examples earlier on whenjurisdiction in the former can be waived. I now explain. Section 99 of the Sheriffsand Civil Process Law, provides for 30 days to serve process if the defendant isoutside the jurisdiction of the Court. The purpose of a pre-action notice is to givethe defendant, usually an agency of Government enough time to negotiate andreach settlement with the claimant, or decide whether it makes sense to submit tojurisdiction and go through a full bloom trial at great expense to resolve the issuein controversy. In both cases, 30 days for service of processes out of jurisdictionand the pre-action notice are for the benefit of the defendant. The position of thelaw is that where a statute gives a party a benefit he may waive it, therebyconferring jurisdiction on the Court to hear the matter. Put in another way,conditions contained in a statute for the benefit of a person or class of persons canbe waived by the person/s to benefit from it. See; Adegoke Motors Ltd v. Adesanya(1989) 3 NWLR (Pt. 109) p. 255, Ezomo v. Oyakhire (1985) 1 SC p. 6, Nwabueze v.Okoye (1985) 1 NWLR (Pt. 2) p. 195. On the other hand where the right conferredby the Constitution or Statute involves an element of public policy, i.e. of interestto the public, such a right cannot be waived. See Ariori v. Elemo (1983) 14 NSCC p.1." See: APC v. LAWRENCE & ORS (2018) LPELR-43662(CA); AG ONDO STATE &ORS v. OKITIPUPA OIL PALM PLC & ORS (2015) LPELR-25800 (CA); and ARUWAJU v.ASHARA (2014) LPELR-22735(CA). The key difference between the two forms ofjurisdiction is that the issue of procedural jurisdiction can be waived, thus it mustbe raised at the earliest opportunity. In light of the facts of this appeal, Appellant'scomplaint as to the legal capacity of the 4th Respondent constituting a bar on theexercise of jurisdiction by the lower Court ought to have been raised at the trialCourt, preferably by a preliminary objection. His failure to so do, therefore meansthat he is deemed to have waived it.See: KALU V. FEDERAL REPUBLIC OF NIGERIA & ORS (2012) LPELR-9287 (CA); andTALLEN & ORS v. JANG & ORS (2011) LPELR-9212(CA)."Per TUKUR, J.C.A. (Pp.22-25, Paras. D-B) - read in context

10. PRACTICE AND PROCEDURE - ISSUE OF JURISDICTION: Importance of theissue of jurisdiction"There is no doubt that the issue of jurisdiction is fundamental, and sui generis, inthat without it a Court cannot properly adjudicate a matter and it can be raised atanytime, by any of the parties, even the Court suo motu, orally or by application.See: ANYANWU v. OGUNEWE & ORS (2014) LPELR-22184 (SC); and BRONWENENERGY TRADING LTD v. CRESCENT AFRICA (GHANA) LTD (2018) LPELR-43796(CA)."Per TUKUR, J.C.A. (P. 21, Paras. A-C) - read in context

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JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the

Leading Judgment): This is an appeal against the

judgment of the Federal High Court Lagos Division in SUIT

NO: FHC/L/CS/1161/2009 delivered by Honourable Justice

M.B. Idris on 5th July, 2013, wherein the Court gave

judgment in favour of the Respondents.

The material facts leading to this appeal, are that the

Respondents dissatisfied with the services provided by the

Appellant with relation to transport by air instituted an

action in the trial Court via a Writ of Summons dated 20th

October, 2009 and claimed the following:

A. Payment of the sum of N2,054,500.00 (Two Million, Fifty

Four Thousand, Five Hundred Naira) being the value of the

items contained in the two large bags lost under the

Defendant’s care and custody.

B. Payment of the sum of N35,000,000.00 (Thirty Five

Million Naira) for breach of contract, cost of this action,

humiliation, public disgrace and emotional crisis suffered

by the Plaintiffs as a result of the loss of two large bags

under the Defendant’s care and custody.

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Both parties filed requisite processes and the matter was

set down for trial. After a full trial, the learned trial Judge

found that the Respondents had proven their case on the

balance of probability and entered judgment in their

favour. He granted the sum of N2,054,500.00 (Two Million,

Fifty Four Thousand, Five Hundred Naira) as claimed and

N10,000,000.00 (Ten Million Naira) for breach of contract,

cost of this action, humiliation, public disgrace and

emotional crisis suffered by the Respondents as a result of

the loss of two large bags under the Appellant’s care and

custody.

Dissatisfied with the above, the Appellant appealed to this

Court vide a Notice of Appeal dated 29th July 2013 and

filed on 29th November, 2013 with six grounds of appeal.

The Appellant’s Brief settled by Bidemi Ademola-Bello of

Olajide Oyewole LLP is dated 20th March, 2017, and filed

on 6th April, 2017, but deemed properly filed on 11th

November, 2017.

Appellant’s counsel formulated three issues for

determination to wit:

1. Whether given the state of the law, the facts and

circumstance of this case, the learned trial Judge was

right to hold that the limitation of liability clause in

accordance with the Montreal Convention in a

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contract duly consented to by the parties would not

be appl icable in determining an award of

compensation to an aggrieved party?

2. Whether or not the award of the whooping sum of

N2,054,500.00 (Two Million, Fifty Four Thousand,

Five Hundred Naira) as special damages and the sum

of N10,000,000.00 (Ten Million Naira) for breach of

contract, cost of this action, humiliation and

emotional trauma suffered by the Respondents by the

learned trial Judge was not excessive.

3. Whether or not the lower Court possessed the

requisite jurisdiction to adjudicate on a suit filed by

an incompetent or non-juristic party in a suit?

On the other hand, the Respondents’ Brief settled by

Clement Onwuenwunor, Esq., was filed on 21st September,

2018 and deemed properly filed on 17th October, 2018.

Respondents’ counsel adopted the issues raised by the

Appellant’s counsel.

I will therefore proceed to determine the appeal on the

issues raised.

ISSUE ONE:

WHETHER GIVEN THE STATE OF THE LAW, THE

FACTS AND CIRCUMSTANCE OF THIS CASE, THE

LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT

THE LIMITATION OF LIABILITY CLAUSE IN

ACCORDANCE WITH THE

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MONTREAL CONVENTION IN A CONTRACT DULY

CONSENTED TO BY THE PARTIES WOULD NOT BE

APPLICABLE IN DETERMINING AN AWARD OF

COMPENSATION TO AN AGGRIEVED PARTY?

Learned counsel for the Appellant argued that the learned

trial Judge’s decision was perverse and that this Court

ought to invoke its power to re-evaluate the evidence where

a trial Court fails to properly do same.

He relied on the cases of: British Airways v. Atoyebi

(2010) 14 NWLR (Pt. 1214); Hamza v. Kure (2010) 10

NWLR (Pt.1023) 630, at 655 paras. A-C.

Learned counsel also argued that a contract of carriage by

air is a contract with statutory flavour and the liability of

the Appellant for loss of 1st Respondent’s luggage is clearly

limited to $1,000.00 (One Thousand Us Dollars). The Court

and the parties are bound by the terms of said contract.

He relied on the following:

Section 48(2) of the Civil Aviation Act 2006; Articles

22(2) and 29 of the Convention for the Unification for

Certain Rules relating to International Carriage by

Air.

Counsel submitted that the claim for the sums of

N2,054,500.00 (Two Million, Fifty-Four Thousand, Five

Hundred Naira) and the sum

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of N10,000,000.00 (Ten Million Naira), does not naturally

flow from the alleged loss, and such an amount was not

claimable under the contract.

He relied on the following:

Section 83 of the Evidence Act; Nneji v. Zakhem Con.

Nig. Ltd (2006) 12 NWLR Pt.994-page 297 pp

319-320; Union Bank of Nigeria Plc v. Emmanuel

Aderewaju Soares (2012) 11 NWLR Pt.1312 page 571

par B-C; and Archbishop Olubunmi Okogie & Ors v.

Mrs Margaret Epoyun (2010) 11 NWLR (Pt.1206)

page 479.

On the other hand, learned counsel for the Respondents

argued that the learned trial Judge properly evaluated the

evidence at trial and the decision arrived at is based on a

proper evaluation of the facts and evidence therein.

He relied on the cases ofUdom v. Umana (No.1), (2016)

2 NWLR (Pt. 1526) 179 at 226 paras F-G; and FCDA v.

Unique Future Leaders Intl Ltd (2014) 17 NWLR (Pt.

1436) 213 at 245 paras D-E.

Learned counsel posited that crucial facts which were

established against the Appellant at trial, especially by the

Appellant’s own admission, include the facts that the

Appellant was aware that the Respondents flight was to

Owerri, that the Respondents checked in

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two large bags with the Appellant, who recklessly tagged

and routed the Respondents’ luggage to Abuja despite the

fact there was no flight to Abuja at the relevant time.

He relied on the following:

Section 123 of the Evidence Act 2011; Jolasun v.

Bamgboye (2010) 18 NWLR Pt. 1225, page 285 at 311

par C; Ogaji v. Ignoikon-Digbani (2010) 10 NWLR Pt.

1202 page 289 at 306 para G; Ogunleye v. Jaiyeoba

(2011) 9 NWLR (Pt.1252) 339 at 351 paras H-A.

Counsel posited that Article 22(2) of the Convention for the

Unification for Certain Rules relating to International

Carriage by Air would not avail the Appellant with regards

to the limitation of liability, because Article 22(5) clearly

renders such limitation inapplicable in a situation as this

one, as the damage here results from the wilful misconduct

or negligence of the Appellant.

He relied on the case of British Airways v. Atoyebi

(2010) 14 NWLR (Pt. 1214) 561.

Learned counsel submitted that there are no terms and

conditions of a contract that could limit the liability of the

Appellant as the document containing them was rejected as

an exhibit by the trial Court on 25th January, 2013, hence

cannot be relied upon by the Court.

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He relied on the following cases:

Olufeagba v. Abdul-Raheem (2009) 18 NWLR (Pt.

1173) 384 @ 439-440 paras H-A; Hausa v. State

(1994) 6 NWLR (Pt. 350) 281; ATP and JAS Nigeria

Ltd v. Drake Skull Nig. Ltd (2003) 3 NWLR (Pt.649)

484 at 491; Jimoh Adebakin v. Sabitiyu Odujebe

(1973) 1 NMLR 148; Union Bank Plc v. Ozigi (1994) 3

NWLR (Pt. 333) 385; Olagbemiro v. Ajagungbade III

(1990) 3 NWLR (Pt.136); Etiko v. Aroyewun (1959) 4

FSC 129; Anyaebosi & Ors v. RT Bribcre (Nig) Ltd

(1987) 6 SC 15; and Skye Bank Plc v. Chief Moses B.

Akinpelu (2010) 9 NWLR (Pt.1198) 179.

RESOLUTION

Both parties and the trial Court are correct in agreeing that

the provisions of the Convention for the Unification for

Certain Rules relating to International Carriage by Air 1999

(the Montreal Convention) apply to air travel in Nigeria,

this is the effect of the provisions of Section 77 (1) & (2) of

the Civil Aviation Act of 2006, which repealed the Warsaw

Convention of 1929 and gave the Montreal Convention

force of law. The Civil Aviation Act domesticated the

Montreal Convention and provided that the provisions of

the Montreal

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Convention, as contained in the Civil Aviation Act and as

amended from time to time, shall have the force of law. It

fully incorporated the Montreal Convention and modified it

to be applicable to domestic carriages within Nigeria.

There is therefore no doubt that the Montreal Convention

forms the basis of liability of air operators to passengers in

domestic air carriage in Nigeria.

See:VIRGIN ATLANTIC AIRWAYS v. AMARAN (2018)

LPELR-44785 (CA).

The main ground for disagreement is whether the limitation

of liability on the Appellant’s part to $1,000.00 (One

Thousand Dollars only) as provided in Articles 22(2) of the

Montreal Convention apply to the circumstances of this

appeal.

The first port of call in the resolution of this issue is to state

that it is clear from the evidence on record that the

Appellant is liable to the Respondents for the loss of their

personal belongings in the two large bags wrongly routed

to Abuja. This is in line with the straightforward provision

of Article 17 of the Montreal Convention, that is:

The air carrier is liable for damage sustained in case

of destruction or loss of, or damage to checked

baggage if

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the event that caused the destruction, or 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.

Article 22(2) of the Convention indeed limits the liability of

the Airline. This is the simple meaning of its provisions,

which are herein reproduced thus:

“In 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.”

The learned trial Judge was well aware of correct principles

of law with regards to the circumstances of the case before

him and did take due note of them. He however did not

apply the limitation of liability reflected above on the

grounds

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that the actions of the Appellant falls within the parameters

of situations where the limitation would not apply. It is

indeed correct to state that where the loss of baggage (not

cargo) was occasioned by the negligence or wilful

misconduct, the liability principle above will not apply. The

foregoing is a correct interpretation of the clear provisions

of Article 22(5) of the Convention, which provides thus:

The foregoing provisions of paragraphs 1 and 2 of

this Article shall not apply if it is proved that the

damage resulted from an act or omission of the

carrier, its servants or agents, done with intent to

cause damage or recklessly and with knowledge that

damage would probably result; provided that, in the

case of such act or omission of a servant or agent, it

is also proved that such servant or agent was acting

within the scope of its employment.

The decision of this Court in the case of EMIRATE

A I R L I N E v . A F O R K A & A N O R ( 2 0 1 4 )

LPELR-22686(CA),is clearly to the effect that the above

stated provision applies to claims for baggage.

It is settled beyond any form of controversy that in

interpreting a Statute or written agreement, the Court

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ought not consider specific segments in isolation, but look

at them in relation with other provisions of the Statute or

agreement as a whole.

The combined effect therefore of Article 22(2) and (5) of

the Montreal Convention is that the limitation of the

Carrier’s liability will not apply to cases of negligence

where the subject matter of the claim is baggage. The rules

as to cargo are different.

In light of the above, this issue is resolved in favour of the

Respondents.

ISSUE TWO:

WHETHER OR NOT THE AWARD OF THE WHOOPING

SUM OF N2,054,500.00 (TWO MILLION, FIFTY FOUR

THOUSAND, FIVE HUNDRED NAIRA) AS SPECIAL

DAMAGES AND THE SUM OF N10,000,000.00 (TEN

MILLION NAIRA) FOR BREACH OF CONTRACT, COST

OF THIS ACTION, HUMILIATION AND EMOTIONAL

TRAUMA SUFFERED BY THE RESPONDENTS BY THE

LEARNED TRIAL JUDGE WAS NOT EXCESSIVE.

Learned counsel for the Appellant argued that assuming

the Appellant was liable in compensation over and above

the limit stipulated by law, the amount awarded by the trial

Judge was not commensurate with the loss suffered by the

1st Respondent.

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Learned counsel also argued that damages though awarded

at the trial Court’s discretion is subject to this Court’s

review if the amount is ridiculously high or low. He

submitted that the damages awarded here is not

commensurate with the items lost, that is family pictures,

and that exemplary damages could not have been the

rationale behind the high amount awarded because the

Appellant could not have deliberately misplaced the

pictures of the Respondents, which would have merited

punishment.

He cited the cases of Acme Builders Limited v. Kaduna

State Water Board (1999) 2 NWLR (Pt. 590) 288;

Eliochin Nig. Ltd Mbadiwe (1986) 1 NWLR (Pt. 14)

47; Odogu v. AG Federation (1996) 6 NWLR (Pt. 456)

508 SC.

On the other hand, learned counsel for the Respondents

argued that the claim and award of the sum of SUM OF

N2,054,500.00 (TWO MILLION, FIFTY FOUR THOUSAND,

FIVE HUNDRED NAIRA) was based on special damages

which was specifically proven at trial, by the testimony of

the PW1 and PW2 in their Witness Statements on oath,

dated 20th October, 2009, together with several receipts of

purchase for the items in the lost luggage tendered through

PW1.

Learned counsel also argued that the claim for

N35,000,000.00 (Thirty Five

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Million Naira) and the award of N10,000,000.00 (Ten

Million Naira) was based on general damages, flowing from

damage suffered from the breach of contract, cost of

action, emotional trauma, and public ridicule suffered at

the burial of 1st Respondent’s deceased mother, due to

failure to make use of the items lost.

He cited the cases of A. Intl Ltd v. S.K Intl Ent. Ltd

(2010) 13 NWLR (Pt. 1211) page 270 at 296 paras E-

F; and British Airways v. Atoyebi (Supra).

RESOLUTION

The rules as to damages are trite. Damages can be

described as compensation in money given to a successful

plaintiff in compensation for loss or harm suffered by him.

Put in another way, Damages refer to the money paid or

awarded to a claimant or a successful plaintiff in a civil

action. Damages in their fundamental character are

compensatory.

See: UBN PLC v. CHIMAEZE (2014) LPELR-22699

(SC); PRESENTATION NATIONAL HIGH SCHOOL &

ORS v. OGBEBOR (2018) LPELR-44784(CA); and J. I.

EFEMINI & SONS (NIG) LTD v. UBA PLC (2018)

LPELR-44153(CA).

The two most common forms of damages, and which the

trial Court awarded in this matter are special damages and

general damages.

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The Supreme Court in the case of IGHEDO & ANOR V.

PHCN (2018) LPELR-43863 (SC) Per ARIWOOLA,

J.S.C. (Pp. 55-56, Para. C), gave a succinct exposition of

the rules that apply to when and how special damages

should be awarded thus:

"It is trite law that "where the precise amount of a

particular item has become clear before the trial,

either because it has already occurred or so becomes

crystallized or because it can be measured with

complete accuracy, this exact loss must be pleaded as

special damages."

In the recent case of AJIGBOTOSHO v. RCC (2018)

LPELR-44774 (SC) Per MUHAMMAD, J.S.C. (Pp.

20-21, Paras. E-A), the Supreme Court stressed the

importance of proving every item claimed before an award

of special damages may be granted when it held thus:

“It is settled that a claim for special damages

succeeds only on the strict proof of the specifically

pleaded facts in relation to the sum claimed. Where

items of special damages are not specified and

strictly proved as in the instant case, recovery of

same will not be granted.”

See: YENKARTI & ANOR v. ABBAH & ORS (2017)

LPELR-43032(CA); and EKIYE v. FRCN (2018)

LPELR-44116(CA).

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The implication of the above is that once the Claimant is

able to prove the specific heads, then he is entitled to the

special damages claimed. In granting the Respondents’

claim for special damages, the learned trial Judge at pages

282 to 284 of the records, clearly relied on the specific

pecuniary losses incurred by the Respondents and

successfully established by them, through their witness

statements on oath and exhibits tendered and admitted in

Court.

From the evidence on record the Appellant failed to

impeach the depositions of the witnesses called by the

Respondents with regard to the claim for special damages.

Exhibits G - G3 which were the proforma invoice and

receipts in proof of the items claimed were not disputed

and neither were they impeached even under Cross

Examination of the two witnesses called by the

Respondents as captured at pages 111-112 and page 113 of

the record. I therefore agree with the learned trial Judge

that the Plaintiffs (Respondents’) have successfully

established their claim for special damages.

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Now the Respondents as Plaintiffs in the lower Court also

claim general damages in the sum of N35,000,000.00

(Thirty five Million naira) only.

General damages are said to be damages which the law

presume and which flow from the type of wrong

complained about by the victim. They are compensatory

damages, which require no specific pleading or proof but

are solely within the discretionary power of the trial Court

to grant.

This Court in the case of CHIA V. FIRST BANK &

ANOR (2018) LPELR-44140(CA) (Pp. 9-10, Paras. G-

D), Per OTISI, J.C.A stated:-

"General damages are such damages as the law will

presume to be direct natural or probable consequence

of the act complained of. They are such as the Court

would award in the circumstance of a case, in the

absence of any yardstick with which to assess the

award except the expectations of a reasonable man.

Unlike special damages, they need not be specifically

pleaded and proved; general damages arise from

inference of law; Yalaju-Amaye v Associated

Registered Engineering Contractors Ltd (1990)

LPELR-3511(SC); Incar (Nig) Ltd v Benson Transport

Ltd (1975) LPELR-1512(SC); Kopek Construction Ltd

v Ekisola (supra) also reported in (2010)

LPELR-1703(SC); Xtoudos Services Nigeria Ltd v

Taisei (WA) Ltd (2006) LPELR-3504(SC)."

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See: ELF PETROLEUM v. UMAH & ORS (2018)

LPELR-43600 (SC); KUBURI INTL TRADING CO. LTD

& ANOR v. MUSTI & ANOR(2018) LPELR-44004(CA);

a n d O K A N U v . O K A N U & A N O R ( 2 0 1 8 )

LPELR-45021(CA).

The learned trial Judge in the judgment awarded the sum of

N10,000.00 (Ten Million Naira) to the Plaintiffs as general

damages for breach of contract, cost of this action

humiliation, public disgrace and emotional crises suffered

by the Plaintiffs as a result of the loss of the two large bags

under the defendants care and custody.

Now learned counsel for the Appellant have invited us to

review this award as being excessive. Now the law is trite

that while this Court has the authority to review an award

made for damages by a trial Court the circumstances in

which it is empowered are narrow and limited to where;

(a) The grant by the trial Court was predicated on a wrong

principle of law;

(b) Where the Trial Court did not take into consideration

relevant facts; or

(c) Where the amount is too high or too low;

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See: UBN PLC V. CHIMAEZE (2014) LPELR – 22699

( S C ) ; V I R G I N A T L A N T I C A I R W A Y S V .

AMARAN LPELR 44785 (A), UMAR & ORS V

MANAGING DIRECTOR FHA ABUJA & ANOR (2018)

LPELR -44703 (CA).

In the instant appeal, learned counsel for the Appellant

complained that the award for general damages in the sum

of N10,000,000.00 was excessive. Now as I pointed out

earlier the learned trial Judge not only granted the claim

for special damages but awarded the sum of Ten Million

Naira as general damages against the Appellant. It seems

to me that the grant of the claimed for special damages has

fully compensated the Respondents for the loss of the

properties involved and the award of the additional sum of

Ten Million Naira as general damages is in my view

excessive upon a consideration of the totality of the

evidence on record. The whole essence of the award of

damages is to put the person damnified by the act of the

defendant in the position in which he would have been if he

had not suffered the damage for which he is being

compensated. Damages are awarded on sound legal

principles and not on sentimental or Arbitrary grounds.

See: ANAMBRA STATE SANITATION AUTHORITY &

ANOR V. EKWENEM 2009 LPELR – 482 (SC); SOETAN

& ANOR V. OGUNWO (1975) LPELR, 3089 (SC).

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In the instant case, I am of the firm view that with the grant

of the special damages to the Respondents by the lower

Court, the award of the princely sum of Ten Million Naira

to the Respondents as general damages by the learned trial

Judge was excessive.

Given the nature and circumstance of the case, I am of the

view that an award of the sum of Two Million Naira

(N2,000.000.00) as general damages will meet the Justice

of the case

This issue is partly resolved in favour of the Respondents

on the award of special damages and partly in favour of the

Appellant with regard to the award of general damages.

ISSUE THREE:

WHETHER OR NOT THE LOWER COURT POSSESSED

THE REQUISITE JURISDICTION TO ADJUDICATE ON

A SUIT FILED BY AN INCOMPETENT OR NON-

JURISTIC PARTY IN A SUIT?

Learned counsel for the Appellant argued that the 4th

Respondent was not privy to the contract of carriage

between the parties and as such ought not to be a party to

the case at trial.

Learned counsel also argued that 4th Respondent, a minor,

does not have the legal capacity to sue and her being part

of the suit robbed the lower Court of

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jurisdiction to hear the matter. He further argued that the

absence of a written authority constituting the 1st

Respondent as the next friend of the 4th Respondent,

meant there was no proper representation.

He relied on the following:

Order 9, Rule 11 of the Federal High Court (Civil

Procedure Rules) 2009; Mozie v. Mbamalu (2006) 15

NWLR (Pt. 1003) SC 466; Olowo Okukuje v.

Odejenima Akwido (2001) 1 SC Pt. II; Augustine

Ndulue v. Nwankwo Ibezim & Anor (2002) 12 NWLR

Pt.780, page 165 para. D-F; E.I.I.A v. C.I.E. Ltd (2006)

4 NWLR (Pt.969) CA 114 at 128, C-D; Emecheta v.

Ogueri (1996) 5 NWLR (Pt. 447) CA 227 at 240-241,

G-A; Trustees P.A.W. Inc. v. Trustees, A.A.C.C (2002)

15 NWLR (Pt. 790) CA 424 at 446; Umar v. W.G.G.

Nig. Ltd (2007) 7 NWLR (Pt. 1032) CA 117 at 150, F-

H; and Madukolu v. Nkemdilim (1962) 1 ALL NLR 587

at 594.

Learned counsel for the Respondents argued that parties

are bound by their pleadings and that since the issue of

capacity of the 4th Respondent was not pleaded at trial,

same should be discountenanced by this Court.

Learned counsel also argued that the actions of the

Appellant affected the 4th Respondent who sued in

the manner allowed by law, that is through her next friend.

He relied on Order 9 Rule 10 of the Federal High Court

Rules 2009.

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RESOLUTION

There is no doubt that the issue of jurisdiction is

fundamental, and sui generis, in that without it a Court

cannot properly adjudicate a matter and it can be raised at

anytime, by any of the parties, even the Court suo motu,

orally or by application.

See: ANYANWU v. OGUNEWE & ORS (2014)

LPELR-22184 (SC); and BRONWEN ENERGY

TRADING LTD v. CRESCENT AFRICA (GHANA) LTD

(2018) LPELR-43796 (CA).

It is also correct to state that there are specific conditions

that must be met before a Court can properly assume

jurisdiction over a case. The applicable principles were

clearly laid down in the popular case of Madukolu v.

Nkemdilim, and recently restated in the caseOSI v.

ACCORD PARTY & ORS (2016) LPELR-41388(SC) (P.

15, Paras. B-E) Per SANUSI, J.S.C of thus:

"Before a Court can assume Jurisdiction on a matter

or appeal it must be satisfied that the following

conditions are met or satisfied, namely: (i) That it is

properly constituted regarding the number and

qualification of its member as the case may be.

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(ii) That the subject matter of the action or appeal is

within its Jurisdiction as governed or donated to it by

Law. (iii) That the action or appeal is initiated by due

process of Law; and, (iv) Any condition precedent to

the exercise of its Jurisdiction must be fulfilled or

met. See Madukolu v. Nkemdilim (ALL NLR 687);

Dangana Anor v. Usman & 4 Ors (2012) 2 SC (pt III)

NURTW & Anor v. RTEAN & Ors (2012) 1 SC (pt I)

119."

See: GOVERNING COUNCIL OF NTI, KADUNA &

ANOR v. NASU (2018) LPELR-44557(CA); NDIC v.

MOHAMMED & ORS(2018) LPELR-44744(CA); and

JEGEDE v. AFE & ANOR (2017) LPELR-43232(CA).

There is however a distinction between a procedural

jurisdiction issue and an issue of substantial jurisdiction.

The Supreme Court in the case of A.G KWARA STATE &

ANOR v. ADEYEMO & ORS (2016) LPELR-41147(SC)

(Pp. 14-15, Paras. E-C) Per RHODES-VIVOUR, J.S.C.,

gave a comprehensive exposition of this distinction thus:

"Jurisdiction is a question of law. There are two types

of jurisdiction: 1. Jurisdiction as a matter of

procedural Law 2. Jurisdiction as matter of

substantive Law. A litigant may waive the former.

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For example a litigant may submit to a procedural

jurisdiction of the Court where a writ of Summons has

been served outside jurisdiction without leave or

where a litigant (the defendant) waives compliance by

the claimant of pre-action notice. No litigant can

confer jurisdiction on the Court where the

Constitution or Statute says that the Court does not

have jurisdiction. Why is jurisdiction as a matter of

procedural law allowed to be waived but not allowed

in the case of substantive law. I gave two examples

earlier on when jurisdiction in the former can be

waived. I now explain. Section 99 of the Sheriffs and

Civil Process Law, provides for 30 days to serve

process if the defendant is outside the jurisdiction of

the Court. The purpose of a pre-action notice is to

give the defendant, usually an agency of Government

enough time to negotiate and reach settlement with

the claimant, or decide whether it makes sense to

submit to jurisdiction and go through a full bloom

trial at great expense to resolve the issue in

controversy. In both cases, 30 days for service of

processes out of jurisdiction and the pre-action notice

are for the benefit of the defendant.

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The position of the law is that where a statute gives a

party a benefit he may waive it, thereby conferring

jurisdiction on the Court to hear the matter. Put in

another way, conditions contained in a statute for the

benefit of a person or class of persons can be waived

by the person/s to benefit from it. See; Adegoke

Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) p.

255, Ezomo v. Oyakhire (1985) 1 SC p. 6, Nwabueze v.

Okoye (1985) 1 NWLR (Pt. 2) p. 195. On the other

hand where the right conferred by the Constitution or

Statute involves an element of public policy, i.e. of

interest to the public, such a right cannot be waived.

See Ariori v. Elemo (1983) 14 NSCC p. 1." See: APC v.

LAWRENCE & ORS (2018) LPELR-43662(CA); AG

ONDO STATE & ORS v. OKITIPUPA OIL PALM PLC &

ORS (2015) LPELR-25800 (CA); and ARUWAJU v.

ASHARA (2014) LPELR-22735(CA).

The key difference between the two forms of jurisdiction is

that the issue of procedural jurisdiction can be waived, thus

it must be raised at the earliest opportunity. In light of the

facts of this appeal, Appellant’s complaint as to the legal

capacity of the 4th Respondent constituting a bar on the

exercise of jurisdiction by the

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lower Court ought to have been raised at the trial Court,

preferably by a preliminary objection. His failure to so do,

therefore means that he is deemed to have waived it.

See: KALU V. FEDERAL REPUBLIC OF NIGERIA &

ORS (2012) LPELR-9287 (CA); and TALLEN & ORS v.

JANG & ORS (2011) LPELR-9212(CA).

In light of the above, this issue is resolved in favour of the

Respondents.

In summation, the Appeal fails and dismissed. The

judgment of the lower Court delivered on 5th July, 2013 is

affirmed save for the award of Ten Million Naira general

damages which is reduced to the sum of Two Million Naira

only.

There shall be costs of N200,000.00 in favour of the

Respondents against the Appellant.

MOHAMMED LAWAL GARBA, J.C.A.: I agree.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read before now

the exhaustive judgment prepared by my learned brother,

Jamilu Yammama Tukur, J.C.A., with which I agree with

nothing extra to add.

 

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Appearances:

Abiola Tella For Appellant(s)

John Hodo, Esq.For Respondent(s)

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