SAUDI ARABIAN AIRLINES & ANOR v. JAHLIVESADAKKA (NIG) LTD

CITATION: (2018) LPELR-46771(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON FRIDAY, 30TH NOVEMBER, 2018Suit No: CA/L/56/2015

Before Their Lordships:

UGOCHUKWU ANTHONY OGAKWU Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of AppealTOBI EBIOWEI Justice, Court of Appeal

Between1. SAUDI ARABIAN AIRLINES2. NIGERIAN AVIATION HANDLING COMPANY PLC(NAHCO AVIANCE)

- Appellant(s)

AndJAHLIVE SADAKKA NIGERIA LIMITED - Respondent(s)

RATIO DECIDENDI

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1. AVIATION LAW - AIR CARRIER LIABILITY: Applicable laws regulating the liability of the carrier to its passengers"Having found that there was proof that twelve (12) pallets were handed over to be air-shipped to Nigeria and only eleven (11) pallets were received by Respondent. The question to beconsidered is which law governs the liability of the Appellants herein. It is of note that after the WARSAW CONVENTION was abrogated, the applicable legal regime is the MONTREALCONVENTION 1999 (MC99) which was domesticated in Nigeria under CIVIL AVIATION ACT 2006. Therefore the focal point is whether the case falls under the exclusion of liability of carrierunder Article 18, 19 and 22 of the MC99 provides thus:"18. (1) The carrier is liable for damages sustained in the event of the destruction or loss of, damage to, cargo upon condition only that the event which caused the damage so sustainedtook place during the carriage by air.(2) However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following:(a) inherent defect, quality or vice of that cargo;(b) defective packing of that cargo performed by a person other than the carrier of its servants or agents;(c) an act of public authority carried out in connection with the entry, exit or transit of the cargo.(3) The carriage by air within the meaning of paragraph 1 of this Article comprises the period during which the cargo is in the charge of the carrier.(4) The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. If however, such carriage takes place in theperformance of a contract for carriage by air, for the purpose of loading, delivery or transshipment, any damage which is presumed, subject to proof to the contrary, to have been theresult of an event which took place during the carriage by air. If a carrier, without consent of the consignor, substitutes carriage by another mode of transport for the whole or part of acarriage intended by the agreement between the parties to the carrier by air, such carriage by another mode of transport is deemed to be within the carriage by air."19. The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned bydelay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take suchmeasures.20....21....22. 1. In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4150 United States dollars.2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage, or delay is limited to 1000 United States dollars for each passenger unless the passengerhas made, at the time when the checked baggage was handed over the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case sorequires. 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 atdestination.3. In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 20 United States dollars per kilogram, unless the consignor hasmade, at the time when the package was handed over the carrier, a special declaration of interest in delivery at a destination and has paid a supplementary sum if the case so requires. Inthat 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 consignor's actual interest in delivery at destination.4. In the case of destruction, loss, damage or delay of part of the cargo, or of any object contained therein, the weight to be taken into consideration in determination the amount to whichthe carrier's liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the destruction, loss, damage of a part of the cargo, or of an objectcontained therein, affects the value of other packages covered by the same air waybill, or the same receipt or, if they were not issued, by the same record preserved by the other meansreferred to in paragraph 2 of Article 4, total weight of such package or packages shall also be taken consideration in determining the limit of liability.5. The foregoing provisions of paragraph 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 servant or agents, donewith 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 provedthat such servant or agent was acting within the scope of its employment.6. The limits prescribed in Article 21 and in this Article shall not prevent the Court from awarding, in accordance with its own rules of procedure in addition, the whole or part of the Courtcosts and of the other expenses of the litigation incurred by the Plaintiff, including interest. The foregoing provision shall not apply if the amount of the damages awarded, including Courtcosts and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the Plaintiff within a period of six months from the date of the occurrencecausing the damage, of before the commencement of the action, if that is later."A review of the facts and argument of counsel reveals that this case falls solely within liability of the Appellant carrier and extent of compensation for damages with respect to cargo andno more. While Article 17 of the Montreal Convention establish that the carrier is liable for damage sustained, in case of an accident causing the death or bodily injury of a passenger onboard the aircraft or in the course of embarking or disembarking as well as in case of destruction or loss of, or of damage to, baggage while in the charge of the carrier, Article 18establish that the carrier is liable for damage sustained in the event of the destruction or loss of, or damage to cargo during carriage and Article 19 establishes that the carrier is liable fordamage occasioned by delay. Generally, the liability of a carrier under MC99 is subject to certain limits. See HALSBURY LAWS OF ENGLAND (2003), 4th Edition, VOLUME 2(3), pp 590 -591. Article 22 limits the liability of carrier in the case of damages for the loss of cargo. Ipso facto, Article 22(3) mandatorily states that unless the consignor, at the time when the cargowas 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, the liability of the carrier in the caseof destruction, loss, damage or delay in the carriage of cargo shall be limited to a sum of 17 Special Drawing Rights per kilogram. Where a special declaration is made by the consignor atthe time of delivery of the cargo to the carrier, the latter will be liable to pay a sum not exceeding the declared sum. The only exception is where it is proven that the sum is greater thanthe consignor's actual interest in delivery at destination of the cargo. On the other hand, Article 22(4) clearly states that the weight to be taken into consideration in determining theamount to which the carrier's liability is limited shall be only the total weight of the package(s) concerned. Meanwhile, Article 29 of MC99 is categorical on the basis of claims under theConvention. It states:"In 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 broughtsubject 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 whatare their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable."The key provision at the core of the Montreal Convention's exclusive set of rules for liability is Article 29. This provision makes clear that the Montreal Convention provides the exclusiverecourse against airlines for various types of claims arising in the course of international carriage by air. Article 29 establishes that in relation to claims falling within the scope of theMontreal Convention, "any action for damages, however founded" may only be brought "subject to the conditions and such limits of liability as are set out in this Convention". SeeTHIBODEAU v AIR CANADA [2014] 3 S.C.R 340.The Respondent has proved that the loss was from the carriage of the cargo and in unexplainable circumstances it landed short of one pallet between the aircraft and before customsinspection who endorsed the discrepancy of 11 found instead of 12. After discharging the burden resting on it to show that in accordance to the terms of the contract, eleven (11) palletswere delivered, the burden shifts to the Appellant to provide the proof of actual lifting and delivery and receipt by the Respondent of twelve (12) pallets.In EMIRATE AIRLINE v AFORKA (2014) LPELR - 22686 (CA) this Court, per IYIZOBA, JCA, said:"Provisions of the Montreal Convention are in the Second Schedule of the Civil Aviation Act 2006. Article 29 of the Montreal Convention 1999 provides: "In 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 andsuch 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 the suit and what are their respectiverights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable." Article 22 (3) of the Montreal Convention 1999 provides: 22(3) In thecarriage of Cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 special Drawing Rights per Kilogram, unless the consignor has made,at the time when the package 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 thatcase the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor's actual interest in delivery at destination."With respect to the liability of a carrier regarding acts and omission of the Appellant carrier, its servant or agent; the provision of Article 22 (3) and (5) of MC99 leaves no one in doubt asto the scope of its liability. For the purpose of emphasis, Article 22(5) reads:"5. The foregoing provisions of paragraph 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 servant or agents, donewith 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 provedthat such servant or agent was acting within the scope of its employment."The plaintiff during their cross-examination and in their statement of claim and reply did not aver to special declaration of the items, their value and the payment at the point ofpresenting the cargo, thereby falling under liability limitation of the MC99. In the case of SOUTH AFRICAN AIRLINE v UBANI CA/L/670/016 delivered by this Court, per TOM YAKUBU, JCA on18/10/2018, the Court held:"It is therefore clear that it is only when a passenger can prove that at the time of handing over the goods to the carrier, he specially declared the value and paid supplementary sum.Article 18 makes the carrier liable without much ado but then qualifies the liability by providing limitations in article 22(3) MC99." This Court had also held, per IYIZOBA, JCA inAFORKA'SCASE (supra) in relation to limitation of liability that:"The only way to escape the limitation of liability with respect to damage or loss of cargo is where the consignor at the time when the package was handed over to the carrier made aspecial declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that situation the carrier will be liable to pay a sum not exceeding thedeclared sum".See IBIDAPO v LUFTHANSA AIRLINES (1997) 4 NWLR (PT 498) SC 124; CAMEROON AIRLINES v ABUL KAREEM (2003) 11 NWLR (PT830) CA 1. CAMEROON ARILINES v OTUTUIZU (2011) 4NWLR (PT 1238) 512.The respondent pleaded negligence in its Statement of Claim and the Appellant averred in paragraph 11 of its reply brief that the liability limitation does not apply. I beg to differ. Again,in the AFORKA'S CASE (Supra), IYIZOBA, JCA had this to say on the MC99:"The concept of negligence or willful misconduct obviously cannot work in the case of loss of cargo. It is difficult to prove willful misconduct as the Plaintiff is not in a position to know howthe loss came about and no help is likely to come from the carrier in that regard. That must be why carriage of cargo was excluded in the provisions. It appears the position may havebeen different under the Warsaw Convention because there are decided authorities where negligence and willful misconduct were considered in cases of loss of cargo...From the exclusionof negligence and willful misconduct in the case of carriage of cargo in article 22(5) and Article 30(3) I am of the firm view the Montreal Convention did not intend that those conceptsshould affect the limitation of liability with respect to carriage of cargo."AUGIE, JCA (now JSC) on object of the MC99 on air carrier liability had this to say in the AFORKA'S CASE:"The Montreal convention 1999 (Convention for the unification of certain Rules for International Carriage by air) is a multilateral treaty adopted by diplomatic meeting of the internationalcivil aviation Organization (ICAO) Member states in 1999, which attempts to reestablish uniformity and predictability of the rules relating to international carriage of passengers, baggageand cargo. Article 29 of the said convention provides: "In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or incontract 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 arethe persons who have the right to bring the suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not berecoverable. "THE OBJECT OF AN INTERNATIONAL TREATY LIKE THE Montreal convention is to provide a uniform international code in areas that it covers - see CAMEROON AIRLINES vOTUTUIZU (2011) 4 NWLR (PT 1238) 512"See also EMIRATE AIRLINES v MISS PROMISE MEKWUNYE (2014) LPELR -22685 (CA) at 52 - 53, para D - C. Without doubt, the applicable legal regime does not accommodate any non-compensatory damages or other extraneous claims unless there is a special declaration of interest when the package was handed over (and payment of supplementary sum). Therefore inthe light of the stark reality of the application of MC99 to this appeal, the applicable rate is limited to 17 Special Drawings Rights (SDR) per kilogram."Per OBASEKI-ADEJUMO, J.C.A. (Pp.17-31, Paras. C-A) - read in context

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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO,

J.C.A. (Delivering the Leading Judgment): This is an

appeal flowing from the judgment of the Federal High

Court of Lagos coram YUNUSA, J delivered on the 30th day

of October 2014 in favour of the plaintiff/Respondent.

The reliefs sought in the lower Court were;

1. An order directing the defendants to deliver to the

plaintiff one 1) outstanding pallet on Airway bill

065-63754810 comprising of 480 (four hundred and

Eighty) pieces of Nokia N-95 cell phone; being the

undelivered part of a consignment of 12 pallets

delivered to the 1st Defendant for carriage and

consigned to the plaintiff but which was subsequently

short–delivered to the plaintiff and has since not been

delivered in spite of letters written to the

defendants’.’

ALTERNATIVELY IN THE EVENT OF LOSS OF THE

PALLET

2. Payment of United States Dollars $317,880 being

the total value for 480 pieces of Nokia N95 cell phone

at the unit price of US$662.25; or, its Nigerian Naira

equivalent of N47,999,880 (Forty Seven Million, Nine

Hundred and Ninety Nine, Eight Hundred and Eighty

Naira) at the prevailing exchange rate of N151 to one

dollar.

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3. Payment of N10,000,000 (Ten Million Naira) as

general or exemplary damages for loss of use of

money involved, inconvenience, embarrassment, and

for taking no serious step to avoid this suit.

4. Payment of interest at the rate of 20% per annum

on the sum claimed for the pallet until judgment and

thereafter at the rate of 30% per annum.

5. N1, 050,000 (One Million, and Fifty Thousand

Naira) being cost of legal action.

The summary of the facts; The twelve(12) pallets of 5760

pieces of Nokia N95 cell phones were deposited with the

1st Defendant in Chennai (India) to be carried and

delivered in Lagos to the Plaintiff as the consignee. The

plaintiff claimed he only received eleven (11) pallets.

Plaintiff also claimed he paid for clearing for the twelve

(12) pallets but only eleven (11) pallets were cleared.

The Defendant stated that the 1st Defendant received

twelve (12) pallets for delivery but denied the content and

loss of any part of the delivery. Dissatisfied with the

decision the Defendants/Appellants appealed to this Court

via Notice of Appeal on 19th December 2014 on 5 grounds

(at pages 514-578).

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The Appellant brief was prepared by I. Olutoba Akande Esq

of Messers Akande & Akande Chambers. Wherein two

issues were formulated thus;

I. Whether the lower Court was right when it directed

the appellants to deliver 480 pieces of Nokia N-95 cell

phones or pay its monetary value of US$317,800 to

the Respondent notwithstanding that there was no

finding of fact that Nokia N-95 cell phones were

delivered to the 1st Appellant by the Respondent

(grounds 1& 4)

II. Whether the lower Court was right when it

directed the Appellants to delivered 480 pieces of

Nokia N-95 cell phones or pay its monetary value of

US $317,800 to the respondent, notwithstanding that

there is nothing on the records showing that the

Respondent made a special declaration in respect of

the lost goods and that it paid a supplementary sum

(if required) (grounds 2,3,& 5))

In the Respondent’s brief filed by I. Fubara Anga-Akinloye

Ajayi of Aelex Law Firm, two issues for determination were

formulated as follows:

i. Whether the plaintiff is not entitled to judgment

having proved breach of contract when it established

that the Defendants failed to deliver complete 12

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pallets to the plaintiff in accordance with the

contract.

ii. Whether the defendant can limit their liability by

relying on exclusion clause/limiting terms?

The issues of parties are interwoven and the resolution of

one will delve into another, in that right it is safer to adopt

the Appellant’s issues, which will encompass the

Respondents issues. I shall take the two issues as one

SUBMISSIONS OF COUNSEL

The Appellant submitted that the bone of contention was

whether the Appellants delivered the goods by the

Respondent to the 1st Appellant for carriage from India to

Nigeria. The Respondent had claimed that the consignor

handed over twelve (12) pallets of Nokia N95 cell phones to

1st Appellant for carriage while the Appellant claimed that

what was handed to them for carriage were marked as

“twelve (12) pallets of transmission apparatus’’. He

contended that exhibit AB3 air waybill incorporating

conditions of contracts tendered by both parties were

described in the column for nature and quantity of goods as

TRANSMISSION APPARATUS’’ also so described in the

cargo manifest Exhibit D2 and therefore the claim before

the

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Court was for N95 Nokia phones and not Transmission

Apparatus, and no finding was made by the lower Court. He

referred to ARCHIBONG v ITA [2004] NWLR (PT. 858)

590; OGBIRI v NAOC LTD [2010] 14 NWLR (PT. 1213)

208 that the claim ought to be dismissed for insufficient

proof of the contents.

He further relied on J.E. OSHEVIRE LTD v TRIPOLI

MOTORS (1997) 5 NWLR (PT 503) 1. He urged the

Court to hold that Respondent is not entitled to claim 1 or 2

and that secondly; prayer 1 ought not be granted as there

was no finding that the missing Phones were in their

possession.

The Respondent submitted that there was proof of

existence of a contract between parties, and that this was

agreed in the pleadings; he referred to paragraphs 5, 6, &

7 of the claim and paragraphs 1, 6, 7, & 8 of Defendant’s

statement of defence. He relied on NIGERIAN BOTTLING

COMPANY v STEPHEN OBOH (2000) 11 NWLR (PT

677) 212; BALOGUN v YUSUFF (2010) 9 NWLR (PT

1200) 515.

The plaintiff pleaded that consignment comprised of 12

pallets and the contents of the twelve (12) pallets were 576

pieces of Nokia N95 cell phones. He tendered Exhibit AB1

PG 481 of record and Exhibit AB2 to

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prove contents of twelve (12) pallets which stated that the

contents of pallets are 576 pieces of N95 cell phones. And

the invoice states the unit price as USD.662.25 and totaled

USD. 3,814,560.00.

Appellant cited NUVO ELECTRONICS INC v LONDON

ASSURANCE & ORS (2000) 49 O.R. (3D) 374, that the

invoice remains the most authentic and admissible

document to prove cost of goods, he referred to Import

Guidelines, procedures and Documentation requirements

under the Destination inspection scheme in Nigeria states

the documents required to accompany importation of goods

into Nigeria.

He relied on CAMEROON v OTUTUIZU (2011) ALL

FWLR (PT. 570)1260, YISI NIG LTD v TRADE BANK

PLC (2013) 2-3 MJSC (PT. IV), OKOSUMAKEDE v

BRITISH AIRWAYS (2009) 3CLRN P 418. He referred

paragraphs 4 & 6, of the claim, Exhibit AB1 & 2, 3, 4

described the goods as Nokia N95 cell phones.

Respondent submitted on breach of contract that Exhibit

AB12 - 14 all show that it was 11 pieces/pallets that arrived

and 1 pallet was short shipped. He referred to Exhibit D2

cargo manifest showing different versions that only 11

pallets landed and the hand written version was

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altered to release twelve (12) pallets and if accepted then it

has resulted in a contradiction in the defence, and further

that it was released to NACOH Shed- 2nd Defendant.

Exhibit AB3 waybill shows that eleven (11) pallets were

released to Plaintiff, Exhibit AB5 shows invoice of twelve

(12)pallets paid but eleven(11) pallets weighing 1353.9kg

was released, this was confirmed by Exhibit AB12 and 13.

He relied on ODULAJA v HADDAD 1973 11 SC 35;

NWABUOKU v OTTIH (1961) 2 SCLR 232, YISI NIG

LTD v TRADE BANK LTD (SUPRA).

On the liability arising from the breach he submitted that

Section 18(1)-(4) of the Montreal convention applied. He

referred to CELSON IND LTD v EGYPT AIR (2010) 4

CLRN 240, LAWSON v CHINA SOUTHERN AIRLINES

COY LTD (2010) 1CLRN 286. He referred to Articles 13

& 14 of the Montreal convention and submitted that the

defendants breached the contract and are liable and cited

SUNLEY & COMPANY v CUNARD WHITE STAR LTD

(1939) 2KB 791 at 788; BRITISH AIRWAYS v

ATOYEBI (2010) 14 NWLR (PT. 1214) Pg 605 para. He

submitted that the cargo was with the 2nd Defendant and

was there and handed over to the consignee.

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On the second issue, the Appellant submitted under two

broad headings that (i) the effect of failure to make a

special declaration and pay a supplementary sum under the

Montreal Convention (MC99). He submitted that the

contract was governed by MC99 but the Court failed to

appreciate the purport of the applicability by awarding

damaged and giving directives on wrong principles.

Appellant referred to Article 18 of the MC99 which make

the carrier liable for damage sustained in the event of loss

of cargo provide it took place during carriage by air and

Article 22 which sets limits of the liability of the carrier in

(3) & (4) and stated that there was no such declaration

made as demanded herein and therefore they fall under

limited liability. He referred to Notice concerning Carriers

liability in Exhibit D1 in Articles 1, 2 & 6 therein and

Articles 22 (3) of MC99.

The Appellant contended that the Court failed to follow

factors set out in Article 22(3) of MC99. He relied on

CA/L/285/2011 EMIRATE AIRLINE v TOCHUKWU

AFORKA delivered Friday 11th April 2014 LPELR -

22686 on proof of special declaration to guide the Court in

an award under the

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MC, and that failure to do this, will not entitle a claimant

escape the limitation liability with respect to damage or

loss of cargo, hence in this case the claim should be

dismissed. He also relied on ODUNZE v NWOSU (2007)

13 NWLR (PT. 1050) 46.

The Appellant contended in the alternative that, under the

MC what the damages the respondent would have been

entitled to had the Court applied the limited liability of MC.

That based on the evidence adduced before the Court the

total monetary value of the lost cargo would have been

US$25.66 X 123.1KG – US$3.158.74. He explained this

based on the weight of 12 pallets which is 1,477 and the

weight of 1 would be total divided by 12 which is 123.1kg

and the rate under MC is 17SDR PER KILO he referred to

Article 23(1) of MC which when converted to dollars from

the web site as at date of judgment 17 SDR – US$25.66 X

123,1 = US$3158.74 .

He urged that the award be set aside and the MC rates be

applied. That the appeal be allowed and part of the

judgment be set aside accordingly.

Responding on question as to whether the defendant can

rely on exclusion clause/limiting terms, the Respondent’s

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counsel contended that there was a fundamental breach

that limitations clause cannot be relied on. He cited IMNL

v PEGOFOR (2005) 15 NWLR (PT 947) 1; DHL INT

NIG LTD v UDECHUKWU CHIDI (1994) 2 NWLR (PT.

329) 720; NIGER INSURANCE LTD v ABED

BROTHERS (1976) 6; UILR A9PT 61; PHOTO

PRODUCTION LTD v SECURITIES LTD (1980) AC;

KRSALE HARRON LTD v WALLIS (1956) 2 ALLER

866; AGIP NIG LTD v AGIP TROLI INT (2010) 1 CLRN

1425-35; NIGERIAN LNG LTD v AFRICAN DEV INS CO

LTD (2005) 8 NWLR (PT. 416) 677; COL KALIEL RTD

v ALH ALIERO (1999) 4 NWLR (PT 597); ACHU v CSS,

CROSS RIVER STATE (2009) 3 NWLR (PT 1129) 475

that having failed to show how Article 24 of MC99 were

complied with they could not take its benefits.

Respondent further contended that a negligent party

cannot rely on an exemption clause to absolve itself from

liability. He relied on PRICE AND CO v THE UNION

LIGHT TRANCE CO 1904 1BB 4R; FBN PLC v

ASSOCIATED MOTORS CO LTD (1998) 10 NWLR (PT.

570) 441; OWNERS OF GONGOLA HOPE v SC NIG

LTD (SUPRA) 207. Respondent lastly submitted that the

MC is not a talisman for commission of fraud or negligent

conduct. Business concerns with bonafide claims borne out

of fundamental

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breaches should not be allowed to suffer unduly.

RESOLUTION

The first question to be considered is whether there was

indeed a finding that the Nokia N-95cell phones were

delivered to the 1st Appellant by the Respondent? At page

565 of the record of appeal the lower Court held:

“In any case the defendants have admitted that 12

pallets were delivered to it, whether it was NOKIA

N-95 or transmission radio, the fact remains that it

was a complete consignment that was delivered to

plaintiff as such there was an existing contract to the

delivery of 12 pallets but at the end of the day one

was yet to be delivered as such an enforceable

contract was breached ….’’

In the statement of claim, the Respondent aver as follows:

4. The Plaintiff entered into a contract of carriage by

air with the 1st Defendant to carry twelve (12) pallets

of 5760 pieces of Nokia N95 cell phone from Chennai,

India to Lagos, Nigeria.

5. On or about 7th May 2010, twelve (12) pallets were

delivered to the 1st Defendant as a carrier by Nokia

India PVT Limited. Each of the pallets contained 480

pieces of Nokia N95 cell phone.

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6. Consequent to paragraph 4 above, the consignment

was delivered to the 1st Defendant and it comprised

of twelve (12) pallets containing a total of 5760

pieces of Nokia cell phone as shown on invoice

number 920417240 dated 16th April, 2010 and

Packing List number 920417240 dated 11th April,

2010. The Plaintiff shall rely on copies of the Invoice

number 920417240 and the Packing List at the trial

of this suit.

7. The 1st Defendant in furtherance of the contract

issued on Air Waybill number 065-63754810 dated

07/05/2010 in which Nokia India PVT Limited was

named as the consignor and the Plaintiff as the

consignee. The Plaintiff shall rely on copy of Air

Waybill number 065-63754810 at the trial of this suit.

8. The Plaintiff avers that the relevant Form M

number MF 1234283 concerning this carriage was

registered with First Bank of Nig. Plc. The Plaintiff

shall rely on copy of Form M number MF 1234283 at

the trial.

9. The Plaintiff avers that upon arrival of

consignment in Lagos, only eleven (11) pallets were

cleared and delivered by the 2nd Defendant to the

consignee represented by Mr. Sule Oladejobi after

“Clearing on Arrival” (COA) based on Invoice no:

180220440 dated

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05/06/2010 issued by the 2nd Defendant. The Plaintiff

shall rely on copy of the invoice during the trial suit.

10. The 1st Defendant gave the impression that only

11 pallets arrived by upon oral complaint of shortage

by the Plaintiff, the 1st Defendant promised that the

remaining pallet would soon arrive.

11. The Plaintiff avers that it was later discovered

from the relevant tally documents/report that all the

total twelve (12) pallets actually arrived. The Plaintiff

shall rely on relevant tally documents and report at

the trial, including the Tally sheet, which is in the

possession of the Defendants. Notice is hereby given

to the 1st and 2nd Defendants to produce these

documents.

Whereas, the Appellants averred as follows:

“2. The Defendants admit paragraph 1, 2, 3, 7, 11 and

12 of the Statement of Claim.

6. The Defendants admit paragraph 4 of the

Statement of Claim only to the extent that the

Plaintiff entered in a contract of carriage by air with

the 1st Defendant to carry twelve (12) pallets of

transmission apparatus with Airway bill No

065-63754810 from Chennai, India to Lagos, Nigeria

and wholly deny all other

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averments therein and put the plaintiff to the

strictest proof thereof.

7. The Defendant admits paragraph 5 of the

Statement of claim only to the extent that on or about

7th May 2010 twelve (12) pallets were delivered to

the 1st Defendant by Nokia India PVT Limited and

wholly deny all other averments therein and put the

Plaintiff to the strictest proof thereof. Eleven (11) of

the pallets contained transmission apparatus of

118x82x73 diementions; while one (1) of the pallets

contained transmission apparatus of 76x46x73

dimensions; (hereinafter called 'cargo’) The

Defendants shall rely on the Air Way bill No

065-63754810 dated 7th May 2010 and 1st defendant

cargo Manifest dated 17th May 2010at the trial.

8. The Defendant admit paragraph 6 of the statement

of Claim only to the extent that twelve (12) pallets

were delivered to the 1st defendants and wholly deny

all other averments therein and put the Plaintiff to

the strictest poof thereof. The Defendants deny that

the said invoice and packing list relates to the

transaction between the plaintiff and the 1st

Defendant.

9. The Defendant deny paragraph 8 of the statement

of

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Claim and state that they are not parties to the Form

M No MF 1234283. The Defendant aver that the form

M has no contention to or relation with the carriage

by air of twelve 12(12) pallets of transmission

apparatus herein."

The Appellants’ witness, a Manager for Medview Airlines,

representatives of Saudi Arabian Airlines at page 282 of the

record of appeal, stated as follows:

“Twelve pallets arrived for the consignees attention;

Exhibit 13 is a sort of tallying in report issued by the

2nd Defendant. In Exhibit 13 eleven pallets were

indicated as having arrived and received. I have seen

Exhibit B2 which the cargo manifests. On the

manifest it is 12 pallets. At the time of clearing, we

have twelve 12 pallets available. Twelve (12)pallets

were released to the plaintiff. Exhibit D1 container

FORM M number. Exhibit 12 was issued by the 2nd

Defendant that eleven (11)pallets were released to

the plaintiff... The Tally officer of the 1st defendant

inscribed 11 pallets."

It is not in dispute that there was an agreement between

the Appellants and the 1st Appellant for contract of delivery

from

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all Exhibits tendered therefore the contention of the

Appellant that the actual items delivered was transmission

apparatus or phones is not important here from the exhibits

they both knew what was to be delivered. Exhibit AB1 & 2

indicated Nokia N95 at page 380 of the record while in

Exhibit D2, 11/12 means 11 was found.

The Respondent from the time of collection complained of

short landing of one (1) pallet. The sole witness for the

Appellants stated clearly under cross-examination that the

1st Defendant is the carrier while 2nd Defendant handles

the cargo from upon arrival till warehousing and final

delivery to the consignee he has a supervisory role to play

for the 1st Defendant. Exhibit D2 is the cargo manifest

listing all cargo on board the aircraft and it is used to tally

the cargo on arrival. It says ‘’11/12’’ and this was endorsed

by Nigerian Customs. He agreed that the 2nd Defendant

issued discrepancy report to 1st Defendant, the document

shows any short shipment. He had nothing to show that

eleven (11) pallets were delivered.

In my view, the lower Court correctly evaluated the

evidence on record. Exhibit AB12 emanating from the 2nd

Appellant is

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clear. It revealed and confirmed that indeed “that 11 pieces

out of 12 pieces weighed 35kg on arrival and 01 piece was

short shipped but clearing payment was for twelve (12)

pallets weight of 1,477kgs, in anticipation that remaining

01 piece will arrive next day". See pages 493 and 494 to

496, of the record of appeal. Item 7 therein has the Airway

Bill No and records that 11 pieces were carried.

Having found that there was proof that twelve (12) pallets

were handed over to be air-shipped to Nigeria and only

eleven (11) pallets were received by Respondent. The

question to be considered is which law governs the liability

of the Appellants herein. It is of note that after the

WARSAW CONVENTION was abrogated, the applicable

legal regime is the MONTREAL CONVENTION 1999

(MC99) which was domesticated in Nigeria under CIVIL

AVIATION ACT 2006. Therefore the focal point is whether

the case falls under the exclusion of liability of carrier

under Article 18, 19 and 22 of the MC99 provides thus:

“18. (1) The carrier is liable for damages sustained in

the event of the destruction or loss of, damage to,

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cargo upon condition only that the event which

caused the damage so sustained took place during the

carriage by air.

(2) However, the carrier is not liable if and to the

extent it proves that the destruction, or loss of, or

damage to, the cargo resulted from one or more of

the following:

(a) inherent defect, quality or vice of that cargo;

(b) defective packing of that cargo performed by a

person other than the carrier of its servants or

agents;

(c) an act of public authority carried out in

connection with the entry, exit or transit of the cargo.

(3) The carriage by air within the meaning of

paragraph 1 of this Article comprises the period

during which the cargo is in the charge of the carrier.

(4) The period of the carriage by air does not extend

to any carriage by land, by sea or by inland waterway

performed outside an airport. If however, such

carriage takes place in the performance of a contract

for carriage by air, for the purpose of loading,

delivery or transshipment, any damage which is

presumed, subject to proof to the contrary, to have

been the result of an event which took place during

the carriage by air. If a carrier, without consent of the

consignor,

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substitutes carriage by another mode of transport for

the whole or part of a carriage intended by the

agreement between the parties to the carrier by air,

such carriage by another mode of transport is deemed

to be within the carriage by air.”

19. The carrier is liable for damage occasioned by

delay in the carriage by air of passengers, baggage or

cargo. Nevertheless, the carrier shall not be liable for

damage occasioned by delay if it proves that it and its

servants and agents took all measures that could

reasonably be required to avoid the damage or that it

was impossible for it or them to take such measures.

20….

21….

22. 1. In the case of damage caused by delay as

specified in Article 19 in the carriage of persons, the

liability of the carrier for each passenger is limited to

4150 United States dollars.

2. In the carriage of baggage, the liability of the

carrier in the case of destruction, loss, damage, or

delay is limited to 1000 United States dollars for each

passenger unless the passenger has made, at the time

when the checked baggage was handed over the

carrier, a special declaration of interest in delivery

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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.

3. In the carriage of cargo, the liability of the carrier

in the case of destruction, loss, damage or delay is

limited to a sum of 20 United States dollars per

kilogram, unless the consignor has made, at the time

when the package was handed over the carrier, a

special declaration of interest in delivery at a

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 consignor’s

actual interest in delivery at destination.

4. In the case of destruction, loss, damage or delay of

part of the cargo, or of any object contained therein,

the weight to be taken into consideration in

determination the amount to which the carrier’s

liability is limited shall be only the total weight of the

package or packages concerned. Nevertheless, when

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the destruction, loss, damage of a part of the cargo,

or of an object contained therein, affects the value of

other packages covered by the same air waybill, or the

same receipt or, if they were not issued, by the same

record preserved by the other means referred to in

paragraph 2 of Article 4, total weight of such package

or packages shall also be taken consideration in

determining the limit of liability.

5. The foregoing provisions of paragraph 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 servant 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.

6. The limits prescribed in Article 21 and in this

Article shall not prevent the Court from awarding, in

accordance with its own rules of procedure in

addition, the whole or part of the Court costs and of

the other expenses of the litigation incurred by the

Plaintiff,

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including interest. The foregoing provision shall not

apply if the amount of the damages awarded,

including Court costs and other expenses of the

litigation, does not exceed the sum which the carrier

has offered in writing to the Plaintiff within a period

of six months from the date of the occurrence causing

the damage, of before the commencement of the

action, if that is later.”

A review of the facts and argument of counsel reveals that

this case falls solely within liability of the Appellant carrier

and extent of compensation for damages with respect to

cargo and no more. While Article 17 of the Montreal

Convention establish that the carrier is liable for damage

sustained, in case of an accident causing the death or

bodily injury of a passenger on board the aircraft or in the

course of embarking or disembarking as well as in case of

destruction or loss of, or of damage to, baggage while in

the charge of the carrier, Article 18 establish that the

carrier is liable for damage sustained in the event of the

destruction or loss of, or damage to cargo during carriage

and Article 19 establishes that the carrier is liable for

damage occasioned by delay.

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Generally, the liability of a carrier under MC99 is subject to

certain limits. See HALSBURY LAWS OF ENGLAND

(2003), 4th Edition, VOLUME 2(3), pp 590 – 591.

Article 22 limits the liability of carrier in the case of

damages for the loss of cargo. Ipso facto, Article 22(3)

mandatorily states that unless the consignor, at the time

when the cargo 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, the

liability of the carrier in the case of destruction, loss,

damage or delay in the carriage of cargo shall be limited to

a sum of 17 Special Drawing Rights per kilogram. Where a

special declaration is made by the consignor at the time of

delivery of the cargo to the carrier, the latter will be liable

to pay a sum not exceeding the declared sum. The only

exception is where it is proven that the sum is greater than

the consignor’s actual interest in delivery at destination of

the cargo. On the other hand, Article 22(4) clearly states

that the weight to be taken into consideration in

determining the amount to which the carrier’s liability is

limited shall be only the total weight of the package(s)

concerned.

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Meanwhile, Article 29 of MC99 is categorical on the basis

of claims under the Convention. It states:

“In 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.”

The key provision at the core of the Montreal Convention’s

exclusive set of rules for liability is Article 29. This

provision makes clear that the Montreal Convention

provides the exclusive recourse against airlines for various

types of claims arising in the course of international

carriage by air. Article 29 establishes that in relation to

claims falling within the scope of the Montreal Convention,

“any action for damages, however founded” may only be

brought “subject to

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the conditions and such limits of liability as are set out in

this Convention”. See THIBODEAU v AIR CANADA

[2014] 3 S.C.R 340.

The Respondent has proved that the loss was from the

carriage of the cargo and in unexplainable circumstances it

landed short of one pallet between the aircraft and before

customs inspection who endorsed the discrepancy of 11

found instead of 12. After discharging the burden resting

on it to show that in accordance to the terms of the

contract, eleven (11) pallets were delivered, the burden

shifts to the Appellant to provide the proof of actual lifting

and delivery and receipt by the Respondent of twelve (12)

pallets.

In EMIRATE AIRLINE v AFORKA (2014) LPELR –

22686 (CA) this Court, per IYIZOBA, JCA, said:

“Provisions of the Montreal Convention are in the

Second Schedule of the Civil Aviation Act 2006.

Article 29 of the Montreal Convention 1999 provides:

"In 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

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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 the suit and what

are their respective rights. In any such action,

punitive, exemplary or any other non-compensatory

damages shall not be recoverable." Article 22 (3) of

the Montreal Convention 1999 provides: 22(3) In the

carriage of Cargo, the liability of the carrier in the

case of destruction, loss, damage or delay is limited

to a sum of 17 special Drawing Rights per Kilogram,

unless the consignor has made, at the time when the

package 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 consignor's actual interest in

delivery at destination."

With respect to the liability of a carrier regarding acts and

omission of the Appellant carrier, its servant or agent; the

provision of Article 22 (3) and (5) of MC99 leaves no one in

doubt as to the scope of its liability. For the purpose of

emphasis, Article 22(5) reads:

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“5. The foregoing provisions of paragraph 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 servant 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 plaintiff during their cross-examination and in their

statement of claim and reply did not aver to special

declaration of the items, their value and the payment at the

point of presenting the cargo, thereby falling under liability

limitation of the MC99. In the case of SOUTH AFRICAN

AIRLINE v UBANI CA/L/670/016 delivered by this Court,

per TOM YAKUBU, JCA on 18/10/2018, the Court held:

"It is therefore clear that it is only when a passenger

can prove that at the time of handing over the goods

to the carrier, he specially declared the value and

paid supplementary sum. Article 18 makes the carrier

liable without much ado but then qualifies the

liability by providing limitations in article 22(3)

MC99.”

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This Court had also held, per IYIZOBA, JCA inAFORKA’S

CASE (supra) in relation to limitation of liability that:

“The only way to escape the limitation of liability with

respect to damage or loss of cargo is where the

consignor at the time when the package was handed

over to the carrier made a special declaration of

interest in delivery at destination and has paid a

supplementary sum if the case so requires. In that

situation the carrier will be liable to pay a sum not

exceeding the declared sum”.

See IBIDAPO v LUFTHANSA AIRLINES (1997) 4

NWLR (PT 498) SC 124; CAMEROON AIRLINES v

ABUL KAREEM (2003) 11 NWLR (PT 830) CA 1.

CAMEROON AIRLINES v OTUTUIZU (2011) 4 NWLR

(PT 1238) 512.

The respondent pleaded negligence in its Statement of

Claim and the Appellant averred in paragraph 11 of its

reply brief that the liability limitation does not apply. I beg

to differ. Again, in the AFORKA’S CASE (Supra),

IYIZOBA, JCA had this to say on the MC99:

“The concept of negligence or willful misconduct

obviously cannot work in the case of loss of cargo. It

is difficult to prove willful misconduct as

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the Plaintiff is not in a position to know how the loss

came about and no help is likely to come from the

carrier in that regard. That must be why carriage of

cargo was excluded in the provisions. It appears the

position may have been different under the Warsaw

Convention because there are decided authorities

where negligence and willful misconduct were

considered in cases of loss of cargo…From the

exclusion of negligence and willful misconduct in the

case of carriage of cargo in Article 22(5) and Article

30(3) I am of the firm view the Montreal Convention

did not intend that those concepts should affect the

limitation of liability with respect to carriage of

cargo.”

AUGIE, JCA (now JSC) on object of the MC99 on air carrier

liability had this to say in the AFORKA’S CASE:

“The Montreal convention 1999 (Convention for the

unification of certain Rules for International Carriage

by air) is a multilateral treaty adopted by diplomatic

meeting of the international civil aviation

Organization (ICAO) Member states in 1999, which

attempts to reestablish uniformity and predictability

of the rules

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relating to international carriage of passengers,

baggage and cargo. Article 29 of the said convention

provides: “In 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

the suit and what are their respective rights. In any

such action, punitive, exemplary or any other non-

compensatory damages shall not be recoverable.

“THE OBJECT OF AN INTERNATIONAL TREATY LIKE

THE Montreal convention is to provide a uniform

international code in areas that it covers – see

CAMEROON AIRLINES v OTUTUIZU (2011) 4 NWLR

(PT 1238) 512”

See also EMIRATE AIRLINES v MISS PROMISE

MEKWUNYE (2014) LPELR -22685 (CA) at 52 – 53,

para D – C. Without doubt, the applicable legal regime

does not accommodate any non-compensatory damages or

other extraneous claims unless there is a special

declaration of interest when the package was handed over

(and payment of supplementary sum).

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Therefore in the light of the stark reality of the application

of MC99 to this appeal, the applicable rate is limited to 17

Special Drawings Rights (SDR) per kilogram.

In the instant case, the total weight of twelve (12) pallets

was 1477kg and this can be gleaned from page 50 of the

record evidencing the letter of 2nd Defendant written to

the Plaintiff and the weight of the 11 pallets received was

put at 1353kg This Court recall that evidence was led and

tendered that clearing was paid on twelve (12) pallets in

anticipation that twelve (12) pallets expected will be

cleared and received.

Therefore the simple arithmetic in calculating the sum due

to the Respondent is to take into consideration the weight

of the lost package which will be gotten by subtracting the

weight of the 11 pallets – 1353kg – from the total 12 pallets

delivered – 1477kg. Thus, the weight of the lost pallet is

calculated to be 124kg.

As to the extent of liability of the carrier, the value of

17SDR as defined by the International Monetary Fund

(IMF) in US Dollars as at the date the judgment of the

lower Court was delivered will be multiplied by the weight

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value of the cargo, subject matter of dispute. As at the 30th

day of May, 2014 when the judgment being appealed

against was delivered, the value of One (1) SDR equals

US$1.480780. See the conversion table accessed on the

website of the International Monetary Fund accessible at

https://www.imf.org/external/np/fin/data/rms_ sdrv.aspx

which reflects as follows:

Thursday, October 30, 2014

Currency Unit Currency amount under Rule O-1 Exchange

rate 1 U.S. dollar equivalent Percent change in exchange

rate against U.S. dollar from previous calculation

Euro 0.4230 1.25850 0.532346 -1.155

Japanese yen 12.1000 109.02000 0.110989 -0.807

U.K. pound 0.1110 1.59860 0.177445 -0.807

U.S. dollar 0.6600 1.00000 0.660000

1.480780

U.S.$1.00 = SDR 0.675320 2 0.578 3

SDR1 = US$ 1.480780 4

Thus, by the above computation 17SDR (multiplied by

US$1.480780 being value of 1SDR) will be US$25.17326.

As the evidence has shown the lost pallet to weigh 124kg,

the implication is that the Appellants are liable to the

Respondent as per the value of 124kg multiplied by

US25.17326, which is US$ 3,121.48424.

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The lower Court after recognizing in its judgment the

applicability of the MC99 erred by granting Reliefs 1 & 2 of

the writ of Summons. The learned trial judge was wrong by

not applying the rule relating to limited liability provided in

the MC99, when he granted the full cost of the lost items.

As a result, I find merit in this appeal. The judgment of the

lower Court, coram YUNUSA, J., is hereby set aside. In its

place, I make the following orders:

1. The sum of US$3,121.484.24 is awarded as damages for

loss of one pallet of Nokia N-95.

2. There shall be interest on the said sum at the rate of 10%

from date of judgment of the lower Court, being 30th

October, 2014 until final liquidation of the judgment debt.

Parties to bear their respective costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was

privileged to read in draft the leading judgment of my

learned brother, ABIMBOLA OSARUGUE OBASEKI-

ADEJUMO, JCA, which has just been delivered.

I entirely agree with, and I do not desire to add to the

reasoning and conclusion in the leading judgment on the

applicability of the stipulations of Article 22 Of the

Montreal

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Convention 1999 in the diacritical circumstances of this

matter.

On account of the said reasoning and conclusion, I equally

allow the appeal on the same terms contained in the

leading judgment.

TOBI EBIOWEI, J.C.A.: I had the privilege of reading the

draft of the lucid judgment just delivered by my learned

brother, Obaseki-Adejumo, JCA. His lordship has

adequately and sufficiently identified the issues involved in

this appeal and resolved same. Obaseki-Adejumo, JCA has

covered the field and I have nothing to add.

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Appearances:

L. Fubara Anga, with him A. F. Ajayi. ForAppellant(s)

Olutoba Akande. For Respondent(s)

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