ANIBABA v. DANA AIRLINES LTD & ANOR
(2022)LCN/16220(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, June 09, 2022
CA/LAG/CV/570/2020
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
MR. FEMI ANIBABA (Suing As Administrator Of The Estate Of Mrs. Oluwatosin Ibironke Anibaba (Deceased) For And On Behalf Of The Dependents Of The Deceased And The Estate Of The Deceased) APPELANT(S)
And
1. DANA AIRLINES LIMITED 2. STACY VEOLETTE SELLERS (Sued As The Personal Representatives Of The Estate Of Mr. Peter Simon Waxtan-Deceased) RESPONDENT(S)
RATIO
THE DOCTRINE OF ISSUE ESTOPPEL
Generally, the doctrine of issue estoppel postulates that within a cause of action, several issues may come into question which are necessary for the determination of the whole case. The rule is that once one or two of such issues have been distinctly raised in a cause of action and appropriately determined or resolved between the same parties by a Court of competent jurisdiction, neither party nor his servant, agent or privy is allowed to re-open or relitigate that on those decided issues all over again in another matter between the same parties or their agents or privies on the same issues. For issue estoppel to apply, the parties, the issues, the subject matter (res) in the previous proceeding and the current action must be the same and the issue must have been resolved in the previous case, see Ladega v. Durosimi (supra); Ikeni v. Efamo (supra); Salami v. Sokefun (2004) All FWLR (Pt. 207) 672; Omnia (Nig.) Ltd. v. Dyktrade (2007) 15 NWLR (Pt. 1058) 576; Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) 638; Ikotun v. Oyekanmi (2008) 10 NWLR (Pt. 1094) 100; Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83; Oshoboja v. Amida (2009) 18 NWLR (Pt. 1172) 188; Gbemisola v. Bolarinwa (2014) 9 NWLR (Pt. 1411) 1; APC v. PDP (2015) 15 NWLR (Pt. 1481) 1; Esuwoye v. Bosere (2017) 1 NWLR (Pt. 1546) 256. PER OGBUINYA, J.C.A.
THE TEST TO DETERMINE WHETHER A DECISION OF A COURT IS FINAL OR INTERLOCUTORY
For a long time, it has been a thorny exercise for the Courts to determine whether a decision of a Court is final or interlocutory. In this wise, two tests, propounded in the English Courts, had competed for the attention of the Nigerian Courts. One is the nature of the proceedings test invented by Fry. L.J. in the case of Salaman v. Warner (1891) 1 QB 734 at 736. The other is the nature of the order test evolved by Lord Alverstone, C.J. in the case of Bozson v. Altrincham Urban District Council (1963) 1 KB 547 at 548-549, wherein the law Lord stated.
“It seems to me that the real test for determining this question ought to be this. Does the judgment or order as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion, an interlocutory order.”
The Nigerian Courts have accepted and followed the latter, id est, that where an order made by a Court finally determines the rights of the parties to an action, then it is final and where it does not, it is interlocutory, seeIgunbor v. Afolabi (2001) 11 NWLR (Pt. 723) 148;Ogolo v. Ogolo (2006) 5 NWLR (Pt. 1112) 113; Owoh v. Asuk (2008) 16 NWLR (Pt. 1112) 173; Gomez v. C. & S.S. (2009) 10 NWLR (Pt. 1149) 223; General Electric Co. v. Akande (2010) 18 NWLR (Pt. 1225) NWLR 596; N.A.O.C. Ltd v. Nkweke (2016) 7 NWLR (Pt. 1512) 588; Ngige v. Disu (2017) 16 NWLR (Pt. 1590) 1; C.G.G. (Nig.) Ltd. v. Odurusam (2017) 17 NWLR (Pt. 1595) 476; Ugo v. Ugo(2017) 18 NWLR (Pt. 1597) 218; Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 395; Fapohunda v. R.CC.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163. PER OGBUINYA, J.C.A.
WHETHER OR NOT AN EXEMPTION CLAUSE CAN AVAIL A PARTY THAT IS GUILTY OF A FUNDAMENTAL BREACH OF CONTRACT
It is settled law that an exemption clause does not avail a party that is guilty of a fundamental breach of contract save that party is made aware or it is intended/provided in the contract, see Narumal & Sons Nig. Ltd v. Niger Benue Transport Co. Ltd. (supra) Akinsanya v. UBA (1986) 4 NWLR (Pt. 35) 273; IMNL v. Pegofor Ind. Ltd. (supra); Eagle Superpack (Nig.) Ltd. v. ACB Plc (2006) 19 NWLR (Pt. 1013) 20. PER OGBUINYA, J.C.A.
DEFINITION OF DAMAGES
Damages have been defined as: “that pecuniary compensation which law awards to a person for the injury he has sustained by reason of the act or default of another whether that act or default is a breach of contract or tort”, see Iyere v. B.F.F M Ltd (2008) 18 NWLR (Pt. 1119) 300 at 345, per Muhammad, JSC; Ukudie v. SPDCN (1975) 8-11 SC 155 at 162; Neka B.B.B. Mfg. Co. Ltd. v. A.CB. Ltd (2004) 2 NWLR (PH. 858) 521.
General damages are those damages that the law presumes as flowing from the wrong complained of by the victim. They need not be specifically pleaded and strictly proved, see U.B.N. Plc v. Ajabule (2011) 18 NWLR (Pt. 1278) 152; Neka B.B.B. Mfg. Co. Ltd. v. A.C.B. Ltd. (supra); Ajigbotosho v. R.C.C. Ltd. (2019) 3 NWLR (Pt. 1659) 289; UBN Plc v. Nwankwo (2019) 3 NWLR (Pt. 1660) 474; Ibrahim v. Obaje (2019) 3 NWLR (Pt. 1160) 389; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227. PER OGBUINYA, J.C.A.
WHETHER OR NOT COMPENSATROY DAMAGES AND GENERAL DAMAGES ARE THE SAME
It is now settled law, beyond any peradventure of doubt, that compensatory damages (called actual damages) and general damages are the same. They are damages recoverable as payment for actual injury or economic loss but do not include punitive or exemplary damages, see Odiba v. Azege (1998) 9 NWLR (Pt. 566) 370; British Airways v. Atoyebi (supra). In Mekwunye v Emirates Airlines (2019) 9 NWLR (Pt. 1677) 191, at 223, Peter Odili, JSC, incisively, declared:
“General damages are monetary recovery in a law suit for injuries suffered such as pain, suffering, opportunity cost, economic loss suffered and inability to perform certain functions or breach of contract for which there is no exact monetary value which can be calculated. General damages are distinct from special damages which are specific costs and so is different from punitive (exemplary) damages for punishment when malice, interest or gross negligence was a factor and to punish the defendant for his conduct in inflicting that harm.
I shall with humility reiterate that, general damages are said to be damages that the law presumes and that flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved.” PER OGBUINYA, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal probes into the correctness of the decision of the Federal High Court, Lagos Division (hereinafter addressed as “the lower Court”), coram judice: C.J. Aneke, J., in Suit No. FHC/L/CS/836/2014, delivered on 20th February, 2020. Before the lower Court, the appellant and the respondents were the plaintiffs and the defendants respectively.
The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The first respondent, a registered company under the Laws of Nigeria, a domestic air carrier of passengers and cargo, was/is the owner and operator of MC Donnell Douglas 84 aircraft with registration number: 5N-RAM. By a contract of carriage, the first respondent agreed to convey one Mrs. Oluwatosin Ibironke Anibaba, the wife of the appellant, from Abuja to Lagos on 3rd June, 2012 in its Flight No. 9J-992. At about 3.35pm, the aircraft crashed at the Iju-Ishaga sector of Lagos State and all the 153 passengers on board the aircraft, including Mrs. Oluwatosin Ibironke Anibaba, died in the crash. The appellant, the husband and personal representative of Mrs. Oluwatosin Ibironke Anibaba (the deceased), alleged that the crash was due to the negligence of the deceased pilot, Mr. Peter Simon Waxtan, whose personal representative is the second respondent. The appellant further alleged that the deceased’s death subjected him and her dependents to enormous losses and hardships. Sequel to that, the appellant, as the administrator of her estate for and on behalf of her dependents, beseeched the lower Court, via a writ of summons filed on 30th May, 2014, and tabled against the respondents, jointly and severally, the following reliefs:
1. The sum of N3,516,000.00 (Three Million Five Hundred and Sixteen Thousand Naira) being funeral expenses incurred for burying the deceased or the equivalent in USD which is USD$22,647.343;
2. The sums of N290,000 (Two Hundred and Ninety Thousand Naira) and £4,000.00 (Four Thousand Pounds Sterling) being the estimated costs of the Deceased’s personal belongings that were in her possession and that were lost at the time of the air crash or the equivalent in USD which is USD$1,867.96 and USD$6,146.4;
3. The sum of N7,609,988.69 (Seven Million Six Hundred and Nine Thousand Nine Hundred and Eighty-Eight Naira and Sixty-Nine Kobo) as past dependency on the Deceased’s earnings or the equivalent in USD which is USD$49,017.64;
4. The sum of N149,831,926.04 (One Hundred and Forty-Nine Million Eight Hundred and Thirty-one Thousand Nine Hundred and twenty-Six Naira and Four kobo) as future dependency on the Deceased’s earnings or the equivalent in USD which is USD$965,100.973;
5. The sum of N10,961,865.98 (Ten Million Nine Hundred and Sixty-One Thousand Eight Hundred and Sixty-Five Naira and Ninety-Eight Kobo) as the Plaintiff’s past loss earnings or the equivalent in USD which is USD$70,607.83;
6. The sum of N200,208,688.58 (Two Hundred Million Two Hundred and Eight thousand and Six Hundred and Eighty- Eight Naira and Fifty-Eight Kobo) as the Plaintiff’s future loss of earnings or the equivalent in USD which is USD$1,289,588.98;
7. The sum of N570,749.15 (Five Hundred and Seventy Thousand Seven Hundred and Forty-Nine Naira and Fifteen Kobo) as past dependency on the Deceased’s pension equivalent in USD which USD$3,676.323;
8. The sum of N14,920,128.54 (Fourteen Million Nine Hundred and Twenty Thousand One Hundred and Twenty-Eight Naira and Fifty-Four Kobo) as future dependency on the Deceased’s pension or the equivalent in USD which is USD$96,103.8875;
9. The sum of N898,639.55 (Eight Hundred and Ninety-Eight Thousand Six Hundred and Thirty-Nine Naira and Ninety-Five kobo) as past dependency on the Plaintiff’s pension or the equivalent in USD which is USD$5,788.34;
10. The sum of N29,480,516.24 (Twenty-Nine Million Four Hundred and Eighty Thousand Five Hundred and Sixteen Naira and Twenty-Four Kobo) as future dependency on the Plaintiff’s pension or the equivalent in USD which is USD$189,890.604;
11. The sum of N1,423,200.00 (One Million Four Hundred and Twenty-Three Thousand and Two Hundred Naira) as past dependency on the Deceased’s services or the equivalent in USD which is USD9167.15;
12. The sum of N31,722,000.00 (Thirty-One Million Seven Hundred and Twenty-Two Thousand Naira) as future dependency on the Deceased’s services or the equivalent in USD which is USD$204,328.502.
13. The sum of N147,400.00 (One Hundred and Forty-Seven Thousand Four Hundred Naira) as past health-care costs or the equivalent in USD which is USD$949.44;
14. The sum of N4,417,841,00 (Four Million Four Hundred and Seventeen Thousand Eight Hundred and Forty-One Naira) as future health-care costs or the equivalent in USD which is USD$28,456.3;
15. The sum of USD$1,000,000.00 (One Million United States Dollars) for the Deceased’s pre-death pain and suffering;
16. The sum of USD$1,000,000.00 (One Million United States Dollars) for the Plaintiff’s Pain and Suffering and Loss of Wife’s Companionship and Affection;
17. The sum of USD$500,000.00 (Five Hundred Thousand United States Dollars) for the Deceased’s daughter’s pain and suffering and loss of mother’s companionship and affection;
18. The sum of USD$1,000,000.00 (One Million United States Dollars) for the deceased’s parents pain and suffering and loss of daughter’s companionship and affection;
19. Interest on the damages claimed in paragraphs 41.1 – 41.18 above at the rate of 21% per annum from the 3rd of June, 2012 until the date of judgment and at the rate of 10% per annum from the date of judgment until the date the judgment is finally liquidated;
20. The costs of this action.
In reaction, the respondents’ joined issue with the appellant’s and denied liability by filing separate statements of defence hosting variegated defences in law.
Following the discordant claims, the lower Court had a full-blown determination of the case. In proof of the case, the appellant called two witnesses, PW1 and PW2, and subpoenaed four witnesses. In disproof of the case, the 1st respondent fielded two witnesses: DW1 and DW2. The second respondent called no witness. Tons of documentary evidence were tendered by the parties. At the closure of evidence, the parties, through their respective counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 20th February, 2020, reflected at pages 2598-2631, volume v, of the record, the lower Court granted the claim in part.
The appellant was dissatisfied with the judgment. Hence, on 18th May, 2020, the appellant lodged a 6-ground notice of appeal, which is copied at pages 2632-2645, volume v, of the record. Subsequently, the appellant, with the leave of Court, filed a 6-ground amended notice of appeal on 27th August, 2020 and deemed properly field on 28th October, 2021, wherein he prayed this Court for:
1. An order allowing the appeal.
2. An order setting aside the parts of the judgment of Honourable Justice C.J. Aneke of the Lagos Judicial Division of the Federal High Court delivered on Thursday the 20th of February 2020, that have been appealed against and invoking the powers of this Honourable Court under Section 15 of the Court of Appeal Act to grant the claims sought by the Plaintiff/Appellant by his Amended Statement of Claim dated 17th November 2015;
OR IN THE ALTERNATIVE
An order remitting this case for retrial before another Judge of the Federal High Court.
Thereafter, the parties, through their counsel, filed and exchanged their briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 14th March, 2022.
During its hearing, learned counsel for the appellant, Dr. B.A.M. Ajibade, SAN, adopted the appellant’s brief of argument, filed on 27th August, 2020, and appellant’s reply brief of argument, filed on 24th December, 2020 and deemed properly field on 28th October, 2021, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondents, Taiwo Kola-Balogun, Esq., adopted the respondents’ brief of argument, filed on 28th September, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it.
In the appellant’s brief of argument, learned senior counsel distilled four issues for determination, to wit:
1. Whether the learned trial Judge arrived at the wrong decision when, in interpreting the provisions of Article 21(1) and (2) of the Montreal Convention, his Lordships resolved that no matter the quantum of damages proven by the Appellant the Court cannot award more than the equivalent of USD 100,000.00 (One Hundred Thousand Dollars) as damages.
2. Whether the trial Judge’s erroneous finding as to the statutory limit imposed on the damages he could award adversely impacted the Court’s ensuing consideration of the Appellant’s claims, particularly the award of the paltry sums of USD20,000.00, USD30,000.00 and USD10,000.00 respectively, as damages for the Appellant’s loss of his wife’s companionship and affection, the Deceased’s daughter’s loss of her mother’s companionship and affection; and the Deceased’s Parent’s loss of their daughter, as against the sums of USD1,000,000, USD500,000 and USD1,000,000 respectively, claimed under these heads.
3. Whether the learned trial Judge erred in dismissing several heads of the Appellant’s claim on the basis that they were “remote” or “speculative” or “irrelevant” without properly considering, assessing, evaluating and/or providing any reasoning for his findings.
4. Whether, having regard to the facts and circumstances of this case and evidence adduced by parties, the learned trial Judge erred in dismissing several heads of the Appellant’s claim on the basis that there was either insufficient evidence or lack of evidence to support these claims.
In the respondents’ brief of argument, learned counsel crafted three issues for determination, namely:
1. Whether the learned trial Judge, in his interpretation of the provision of Article 21(1), (2) and 29 of the Montreal Convention, rightly held that with regards to the facts of this case the convention sets the limit of the Appellant’s entitlement to US$100,000 having failed to allege negligence of the Carrier.
2. Whether the learned trial Judge’s award of US$20,000.00, US$30,000.00 and US$10,000.00 as damages for the Appellant’s claim for loss of his wife’s companionship and affection; the Deceased’s daughter’s loss of her mother’s companionship and affection and the Deceased’s Parent’s loss of their daughter respectively was based on his assessment of the circumstances of the Appellant’s case and evidence before the Court.
3. Whether the learned trial Judge, upon considering, assessing and evaluating the evidence of the Appellant, rightly dismissed the affected heads of claims for reasons that the evidence were “remote”, “speculative”, “irrelevant”, “insufficient” and “lacking”.
A close look at the two sets of issues shows that they are identical in substance. in fact, the respondents’ issues can be, conveniently, subsumed under the appellant’s. Given this sameness, I will decide the appeal on the issues nominated by the appellant: the undoubted owner of the appeal.
Arguments on the issues.
Issue one.
Learned senior counsel for the appellant submitted that the lower Court wrongly misconstrued Article 21 (1) and (2) of Montreal Convention for the Unification of Certain Rules for International Carriage by Air of 28th May, 1999 (the Montreal Convention).
He noted that Article 17 of the Montreal Convention imposed strict liability on a carrier on damages sustained by a passenger. He explained that a carrier can only be limited to the damage of US$100,000.00 if it is able to discharge the reverse burden of proof under Article 21 (2) of the Montreal Convention. He observed that the lower Court followed the usual approach to burden of proof instead of the strict liability regime and reverse burden of proof in Articles 17 and 21 of the Montreal Convention. He reasoned that these Articles required literal interpretation. He relied on Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344. He stated that the lower Court, per M. B. Idris, J (now JCA), had properly interpreted those provisions and the lower Court refused to follow it. He asserted that the lower Court was bound by the ruling based on issue of estoppel. He cited Section 174 of the Evidence Act, 2011; Nikagbatse v. Opuye (2010) 14 NWLR (Pt. 1213) 50; Makun v. FUT, Minna (2011) 18 NWLR (Pt. 1278) 190; Al-Bishak v. National Productivity Centre (2015) LPELR-24659 (CA).
On behalf of the respondents, learned counsel reproduced the provisions of Article 17 and 21 of the Montreal Convention and explained their intendment. He stated that Article 21 envisaged a claim below US$100,000.00. He further explained the reason for lack of minimum liability requirement in the provision. He opined that where damages proved are above US$ 100,000.00 the carrier can prove its defence in the provision. He maintained that all compensation must be linked to actual damage sustained and remains strictly subject to proof of loss. He took the view that issue estoppel was inapplicable because the conditions for its application were not met and the ruling was an interlocutory decision. He relied on Bamgbegbin v. Oriare (2009) LPELR-733 (SC); Ebba v. Ogodo (2000) LPELR-983 (SC).
On points of law, learned Silk posited that the ruling, which was based on the appellant’s application made under Order 16 Rule 2 of the Federal Court (Civil Procedure) Rules, 2009 (the FHC Rules), was a final decision and not interlocutory decision. He referred to Kasandubu v. Ultimate Petroleum Ltd. (2007) LPELR-8228 (CA). He insisted that the lower Court was functus officio over the ruling. He cited Gitto Costruzioni Generali (Nig.) Ltd. v. Innovate & Co. Enterprises (2015) LPELR-25725 (CA).
Issue two.
Learned appellant’s counsel contended that the lower Court’s misinterpretation of Article 21 of the Montreal Convention led to its award of paltry sums for some of the claims without proper evaluation of the evidence. He asserted that all the heads of damages claimed, whether economic, non-economic or non-pecuniary, were legal and recoverable in law. He relied on Adeleke v. Anike (2006) 16 NWLR (Pt. 1004) 1311. He stated that the award of US$60,000.00 for three heads of claim of US$2,500,000.00 was influenced by the lower Court’s finding on limit of US$100,000.00. He noted that the lower Court failed to consider the unrebutted evidence of $4,400,000.00 paid to the second respondent and the fact that the deceased was pregnant. He added that the lower Court did not consider awards of damages made in similar circumstance by other Courts in fatal aviation accident claims. He cited 742 F.2d45 – Shu-Tao Lin v. MC Donnell Douglas Corporation 39 Fed. R. Ser. 2d 958, 16 Fed. R. Evid. Serv.487; Long v. City of New York, 81 A.D. 2d. 880, 439 N.Y. S. 2d. 58 (2d Dep’t 1981); Jurditta v. Bethlehem Steel Corp; 75 A.D.2d. 126, 428 N.Y.S. 2d 535 (4th Dep’t 1980); Yowell v. Piper Aircraft Corp., 703 S.W. 2d 630, 634 (Tex. 1986); Lang v. Bonju, 667 N.Y.S. ad – 440, 442 (App. Div. 1997). He said that the death of the deceased caused pain and suffering to the appellant and her dependents. He urged the Court to interfere and reverse the paltry sums awarded. He referred to Alawiye v. Ogunsanya (2004) 4 NWLR (Pt. 864) 486. He further urged the Court to set aside the lower Court’s decision and grant the claims under Section 15 of the Court of Appeal Act.
For the respondent, learned counsel submitted that the heads of claim granted are non-pecuniary and, therefore, non-compensatory damages that are excluded and not recoverable under Article 29 of the Montreal Convention. He added that the lower Court wrongly awarded those damages under the Fatal Accident Law of Lagos State, 2003 and Administration of Estate Law of Lagos State, 2003 that were inapplicable to aviation suits. He cited Article 29 supra. He stated the objective of the Convention as noted in Harka Air Services (Nig.) Ltd. v. Emeka Keazor (2011) LPELR-1353 (SC). He described the case of Adeleke v. Anike (supra) as inapplicable and the foreign decisions as persuasive.
Learned counsel postulated, in the alternative, that the lower Court properly assessed those awards since the claims were non-pecuniary and there is no guide for assessment. He claimed that the allegation that the second respondent was paid US$4,400,000.00 was speculative and unproved. He added that the decision in a separate case in a different jurisdiction was irrelevant in evaluating claims in Nigeria. He cited Tanko v. Nongha (2005) LPELR-11405 (CA); Al- Haleel v. FRN (2015) LPELR-25902 (SC). He opined that all the appellant’s evidence were challenged. He repeated the conditions in Article 29 of the Montreal Convention and that the claims of loss of companionship and affection are non-compensatory damages that are not recoverable.
On points of law, learned Senior Advocate of Nigeria posited that the exhibits B40 and B41 proved the payment of the second respondent. He persisted that the burden to prove the amount paid shifted to the respondents and failure meant withholding of evidence.
He referred to Sections 133 (2) and 167 (d) of the Evidence Act, 2011; Akinbade v. Babatunde (2017) LPELR-43463 (SC); The People of Lagos State v. Umaru (2014) 7 NWLR (Pt. 1407) 584; Inuwa v. B.U.K. (2016) LPELR-4161 (CA).
Issue three.
Learned senior counsel for the appellant submitted that the lower Court wrongly dismissed the appellant’s several heads of economic and non-economic claims on the basis that they were remote, speculative or irrelevant without evaluating and/or providing any reasons. He claimed that the claims were properly pleaded and evidence given thereon. He stated that the economic claims were based on Section 6 of the Fatal Accident Law of Lagos State which is same with Section 3 of the Fatal Accident Act of the United Kingdom, 1976. He opined that local and foreign decisions have awarded damages in such claim. He relied on Mallet v. Mc Monagle (1969) 2 All ER 178 at 191; Mehmet v. Perry (1977) 2 All ER 529; Cresswell v. Eaton (1991) All ER 484 QBD; Berry v. Humm & Co. (1915) IKB 627; Burgess v. Florence Nightingale Hospital for Gentlewomen (1955) 1QB 349 at 361-362; Hay v. Hughes (1975) 1 All ER 257 CA; NBC v. Ogundele (1997) 9 NWLR (Pt. 521) 446; Adeleke v. Anike (supra). He described the foreign decisions as persuasive. He explained when a claim is speculative. He cited A-G., Plateau State v. A-G., Fed (2006) 3 NWLR (Pt. 967) 346. He insisted that the lower Court did not provide any reason or rational for holding those heads of claims to be speculative or remote.
Learned Silk further submitted that the lower Court wrongly refused the claims for pre-death pain and suffering by the deceased despite the evidence which it did not evaluate. He stated a victim is entitled to general damages for pain and suffering. He referred to Julius Berger Nig. Ltd. v. Ugo (2015) LPELR-24408; Adeleke v. Anike (supra). He said that the head of claim was brought under Section 12(1) of the Administration of Estates Law of Lagos State, 2003 on behalf of deceased’s estate. He claimed that exhibits A2 and B31 showed that the deceased did not die immediately. He postulated that the lower Court failed to make any pronouncement on the claim for future dependency. He relied on Ulegede v. The Mil. Adm. Benue State (2001) 2 NWLR (Pt. 696) 73. He added that reason(s) must be given for any decision in a judgment. He cited Daudu v. FRN (2018) LPELR-43637 (SC); Agbanelo v. UBN Ltd. (2000) 7 NWLR (Pt. 666) 534. He concluded that the lower Court was wrong when it declared the claims as speculative or remote without reasons and evaluation of the evidence.
On the side of the respondent, learned counsel argued that any claim not directly connected to the personal loss of the passenger (whether injured or dead) is remote to the Montreal Convention. He agreed with the lower Court for not awarding damages for those remote claims. He stated that the appellant wrongly relied on Fatal Accident Law of Lagos State and Administration of Estate Law of Lagos State, which deals with road accident cases, contrary to Section 48 (2) of the Civil Aviation Act, 2006 (CAA). He relied on Article 29 of the Montreal Convention. He maintained that all the economic and non-economic claims were remote. He took the view that the heads of claim on future losses were speculative and were not supported by evidence. He observed that the evidence did not factor uncertainties of life- loss of jobs, economic recession, pandemic, road accident, sickness. He reasoned that findings of facts should be based on evidence adduced and not on speculations probabilities. He cited State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548, Al-Haleel v. FRN (2015) LPELR-25902; ACB Plc. v. Emostrade Ltd. (2002) LPELR-207 (SC).
Learned counsel posited that damages are not given for pre-death pain and suffering. He stated that the appellant admitted that he did not know when the deceased died. He asserted that exhibits A2 and A31 were not evidence of when the deceased died. He described the claim as speculative/guess work which a Court would not grant. He referred to Obiechina v. Dan Dev. Co. Ltd (2019) LPELR- 49091 (CA); U.T.C (Nig.) Ltd v. Peters (2009) LPELR-8426 (CA); Adekanbi v. Oseni (2017) LPELR-42370 (CA). He noted that when the decision of a Court is valid, the reason is immaterial. He cited Dairo v. UBN Plc (2007) 16 NWLR (Pt. 1059) 99; Odunlami v. The Nigerian Navy (2013) LPELR- 20701 (SC). He persisted that the lower Court provided the reasons and evaluated the evidence before declaring the claims as remote and speculative.
On points of law, learned Silk argued that the fact that there is no Nigerian case in which damages have been awarded for pre-death pain and suffering is no basis to reject the claim. He cited Packer v. Packer (1954) P. 15 at 22. He postulated that the Fatal Accidents Law and the Administration of Estates Law permit the estate of the deceased to get damages for the pain and suffering endured before her death.
Issue four.
Learned appellant’s counsel contended that it is the quality of evidence that discharges the burden of proof, He relied on Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172; Neka B.B.B. Manufacturing Co. Ltd. v. ACB Ltd. (2004) 2 NWLR (Pt. 858) 521. He claimed that the appellant led evidence to prove funeral expenses but the lower Court failed to take cognisance of them for lack of receipts. He relied on exhibit A1, A2 and B 31; Adeleke v. Anike (supra). He reasoned that evidence were led to prove personal belongings but the lower Court wrongly refused them for lack of receipts. He cited Adeleke v. Anike (supra). He took the view that the lower Court wrongly refused to accept sufficiency of unrebutted evidence. He referred to Esene v. State (2017) LPELR-41912 (SC); Amobi v. Nzegwu (2013) LPELR-21863 (SC); Kopek Construction Ltd. v. Ekisola (2010) LPELR-1703 (SC). He stated that the appellant gave oral evidence and tendered exhibits B, B1, E, F and J to prove past dependency on the deceased’s earnings but the lower Court wrongly refused it because the appellant earned more than her. He said unchallenged evidence must be accepted. He referred to Kopek Construction Ltd. v. Ekisola (supra). He described the finding of the lower Court as a miscarriage of justice. He observed that the past dependency on the deceased’s pension was wrongly refused for lack of evidence when exhibits E, E1 and E2 were tendered. He concluded that the lower Court wrongly refused the claim for past dependency on the deceased’s services for lack of evidence from employed maids, househelps and drivers.
On behalf of the respondents, learned counsel argued that the appellant failed to prove special damages for funeral expenses as pleadings do not constitute evidence. He relied on NBC v. Ogundele (supra); Ngilari v. Mother Cat Ltd (1999) 12 5C (Pt. II) 1. He opined that the appellant failed to prove the claim for past dependency on deceased’s earnings and personal belongings which were special damages to be strictly proved. He cited NBC Plc. v. Ogundele (supra); Alhaji Otaru & Sons Ltd. v. Idris (1999) 6 NWLR (Pt. 606) 330; Adeleke v. Anike (supra). He added that the appellant failed to prove past dependency on the deceased’s pension and services. He maintained that the Court would not grant a relief not sought or proven. He referred to Gani-Tarzam Marine Enterprises Ltd. v. Caravelle Resource Ltd. (2011) 14 NWLR (Pt. 1266) 125.
Resolution of the issues.
In the spirit of orderliness, I will attend to the quartet of issues in their numerical sequence of presentation by the parties. To this end, I will, without much ado, kick-off with the consideration of issue one. The main plank of the appellant’s agitation on the issue is plain. It chastises the lower Court’s interpretation of Article 21 (1) and (2) of the Montreal Convention. it is a mild summon on this Court to superintend over the interpretative prowess of the lower Court on the ambitious provision of Article 21 within the firmament of Montreal Convention.
There is one tangential/auxiliary point that cries for the attention and resolution by this Court. It appertains to the appellant’s allegation that the lower Court disrespected the doctrine of issue estoppel in that it failed to follow the earlier ruling, per M.B. Idris, J (now JCA), on the provision of the Article 21 (1) and (2) of the Montreal Convention.
Generally, the doctrine of issue estoppel postulates that within a cause of action, several issues may come into question which are necessary for the determination of the whole case. The rule is that once one or two of such issues have been distinctly raised in a cause of action and appropriately determined or resolved between the same parties by a Court of competent jurisdiction, neither party nor his servant, agent or privy is allowed to re-open or relitigate that on those decided issues all over again in another matter between the same parties or their agents or privies on the same issues. For issue estoppel to apply, the parties, the issues, the subject matter (res) in the previous proceeding and the current action must be the same and the issue must have been resolved in the previous case, see Ladega v. Durosimi (supra); Ikeni v. Efamo (supra); Salami v. Sokefun (2004) All FWLR (Pt. 207) 672; Omnia (Nig.) Ltd. v. Dyktrade (2007) 15 NWLR (Pt. 1058) 576; Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) 638; Ikotun v. Oyekanmi (2008) 10 NWLR (Pt. 1094) 100; Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83; Oshoboja v. Amida (2009) 18 NWLR (Pt. 1172) 188; Gbemisola v. Bolarinwa (2014) 9 NWLR (Pt. 1411) 1; APC v. PDP (2015) 15 NWLR (Pt. 1481) 1; Esuwoye v. Bosere (2017) 1 NWLR (Pt. 1546) 256.
It is decipherable, based on the hallmarks of issue estoppel chronicled above, that the doctrine contemplates two actions for its employment, as a shield, by a party. The one is that there must be a previous matter wherein the issue, sought to be impugned, has been decided/determined by a Court of competent jurisdiction. The other is a current/an existing action wherein the contested issue is greeted with a protestation. In this case, there is total absence of two actions as envisaged in the connotation of issue estoppel. It is still the same and one matter, which parented the appeal, that the appellant deployed the doctrine of issue estoppel to emasculate the jurisdiction of the lower Court to construe, rightly or wrongly, the provision of Article 21 (1) and (2) of the Montreal Convention. In my humble view, the invocation of the doctrine by the appellant is not, in the least, in alignment with the spirit and letter of the law.
That is not all. An interlocutory decision is not submissive to the doctrine of issue estoppel, see Bamgbegbin v. Oriare (supra). The feuding parties took diametrically opposed stands on the state of the ruling. While the appellant categorised it as a final decision, the respondents christened it with the appellation of an interlocutory decision.
For a long time, it has been a thorny exercise for the Courts to determine whether a decision of a Court is final or interlocutory. In this wise, two tests, propounded in the English Courts, had competed for the attention of the Nigerian Courts. One is the nature of the proceedings test invented by Fry. L.J. in the case of Salaman v. Warner (1891) 1 QB 734 at 736. The other is the nature of the order test evolved by Lord Alverstone, C.J. in the case of Bozson v. Altrincham Urban District Council (1963) 1 KB 547 at 548-549, wherein the law Lord stated.
“It seems to me that the real test for determining this question ought to be this. Does the judgment or order as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion, an interlocutory order.”
The Nigerian Courts have accepted and followed the latter, id est, that where an order made by a Court finally determines the rights of the parties to an action, then it is final and where it does not, it is interlocutory, seeIgunbor v. Afolabi (2001) 11 NWLR (Pt. 723) 148;Ogolo v. Ogolo (2006) 5 NWLR (Pt. 1112) 113; Owoh v. Asuk (2008) 16 NWLR (Pt. 1112) 173; Gomez v. C. & S.S. (2009) 10 NWLR (Pt. 1149) 223; General Electric Co. v. Akande (2010) 18 NWLR (Pt. 1225) NWLR 596; N.A.O.C. Ltd v. Nkweke (2016) 7 NWLR (Pt. 1512) 588; Ngige v. Disu (2017) 16 NWLR (Pt. 1590) 1; C.G.G. (Nig.) Ltd. v. Odurusam (2017) 17 NWLR (Pt. 1595) 476; Ugo v. Ugo(2017) 18 NWLR (Pt. 1597) 218; Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 395; Fapohunda v. R.CC.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163.
The ruling, which encompasses the finding or construction on Article 21 (1) and (2) of the Montreal Convention by M. B. Idris, J. (now JCA), is wrapped between pages 264-286, volume l, of the wordy record. Indisputably, it falls within the wide perimeter of a Court decision. A decision of a Court means “in relation to a Court, any determination of that Court and includes judgment, decrees, order conviction, sentence or recommendation”, see Section 318 of the Constitution, as amended,Yusuf v. Obasanjo(2003) 15 NWLR (Pt. 843) 293, Kubor v. Dickson(2013) 4 NWLR (Pt. 1345) 534, Omisore v. Aregbesola (supra); CPC v. INEC (2012) 13 NWLR (Pt. 1317) 260; Madumere v. Okwara(2013) 12 NWLR (Pt. 1368) 303; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; Otti v. Ogah (2017) 7 NWLR (Pt. 1563); FRN v. Atuche (2019) 8 NWLR (Pt. 1674) 338.
Interlocutory connotes an occurrence/happening which is provisional, temporary, interim and not a final resolution of the whole controversy. It intervenes between the commencement and the end of the suit, see N.A.O.C Ltd. v. Nkweke(2016) 7 NWLR (Pt. 1512) 588; Agwu v. Julius Berger (Nig.) Plc. (2019) 11 NWLR (Pt. 1682) 165; C.G.C. (Nig.) Ltd. v. Eronini (2019) 14 NWLR (Pt. 1692) 219.
The mission of the appellant’s application, which midwifed the ruling, was clear. It was intended to elicit a pronouncement from the lower Court on the proper interpretation of the provision of Article 21 (1) and (2) of the Montreal Convention. In that premise, the ruling was not intended to be a final decision. In other words, the lower Court’s proclamation on the import of the Article 21 supra was to be in incubation, throughout the gestation of the main suit, waiting to be harnessed by the appellant in the prosecution of its principal claim. Put differently, the ruling, which houses the interpretation, to all intents and purposes, never disposed/terminated the rights of the parties in the suit before the lower Court. The lower Court had not become functus officio over the suit on the footing of the ruling of 11th May, 2025. The warring parties must, as a matter of legal command, return to the lower Court to ventilate their pending grievances and harvest their rights in the main suit before the lower Court. I, therefore, hold that the ruling, which was being masqueraded as a final decision, is not enmeshed in the intractable vortex of issue estoppel so as to drain the lower Court of the requisite vires to interpret, rightly or wrongly, the provision of Article 21 (1) and (2) supra.
This is more so as the hearing on the action was commenced de novo before the lower Court, presided by C.J. Aneke, J., thereby neutralising its supremacy in the latter proceeding. In all, the appellant’s defence of issue estoppel against the decision is disabled from its birth. It cannot fly.
That brings me to the marrow of the issue. It orbits around the propriety or otherwise of the lower Court’s interpretation of the provision of Article 17 (1) and 21 (1) and (2) of the Montreal Convention. It was domesticated by the provision of Section 48 of the Civil Aviation Act, 2006 (NCAA). Since the provisions of the Articles are the cynosure of the stubborn point, it is imperative to pluck them out, whence they are ingrained in the statute book, ipsissima verba, as follows:
17 (1) The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
ARTICLE 21 – COMPENSATION IN CASE OF DEATH OR INJURY OF PASSENGERS.
(1) For damages arising under paragraph 1 of Article 17 not exceeding 100,000 United States Dollars for each passenger, the carrier shall not be able to exclude or limit its liability.
(2) The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 United States Dollars if the carrier proves that:
(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.
These provisions are disobedient to ambiguity. On this score, the law compels the Court to accord them their ordinary grammatical meanings without any interpolations, see Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606; PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205; Kawawu v. PDP (2017) 3 NWLR (Pt. 1553) 420; Setraco (Nig) Ltd. v. Kpaji (2017) 5 NWLR (Pt. 1558) 280; Adeokin Records v. MCSCN (2018) NWLR (Pt 1643); Ecobank v Honeywell Flour (2019) NWLR (Pt. 1655) 55; Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503.
In the first place, the provision of Article 17 (1) of the Montreal Convention, which is comprehension-friendly based on its tenor, imposes on a carrier a strict liability: “Liability that does not depend on proof of negligence or intent to do harm but that is based instead on a duty to compensate the harms proximately caused by the activity or behaviour subject to the liability rule”, see Bryan A. Garner Black’s Law Dictionary, 10th edition (USA, West Publishing Co., 2014) 1055. It bears another cognomen – liability without fault. In this wise, the provision must be interpreted strictissimi juris – of the strictest right or law; in the strictest manner. In view of foregoing, by virtue of Article 17 (1), a carrier incurs liability in damages when death or bodily injury of a passenger occurs provided that the accident that occasioned the death or injury took place on board the carrier’s aircraft or in the course/process of any of its operations of embarking or disembarking therefrom without the necessity of proof of negligence against it. Thus, proof of negligence by a personal representative of the dead or injured passenger is not a sine qua non for the liability of the carrier. Any death or injury to the passenger on board a carrier’s airplane fetches liability to it without any fault of it – the carrier.
Then, the provision of Article 21 of the Montreal Convention is a quintessence of an exemption clause. It is important to appreciate the purport of exemption clause. It is: “A contractual provision providing that a party will not be liable for damages for which that party would have ordinarily been liable” see Bryan A. Garnner, Black’s Law Dictionary, 8th edition (U.S.A, West Publishing Co., 2004) 612. It wears other interchangeable appellations, videlicet: Exception, Exculpatory or Exclusion clause. The case-law has ordained a limitation clause, which limits liability, as a specie of the genus of exemption clause, see IMNL v. Pegofor Ind. Ltd. (2005) 15 NWLR (Pt. 947) 1. It is settled law that an exemption clause does not avail a party that is guilty of a fundamental breach of contract save that party is made aware or it is intended/provided in the contract, see Narumal & Sons Nig. Ltd v. Niger Benue Transport Co. Ltd. (supra) Akinsanya v. UBA (1986) 4 NWLR (Pt. 35) 273; IMNL v. Pegofor Ind. Ltd. (supra); Eagle Superpack (Nig.) Ltd. v. ACB Plc (2006) 19 NWLR (Pt. 1013) 20.
The provision of Article 21 (1) of the Montreal Convention is rebellious to woolliness. Its import, on the footing of its phraseology, is that where there is death or bodily injury to a passenger, the liability of the carrier, national/local or international, to the passenger is circumscribed and restricted to 100,000 United States Dollars without exclusion or limitation of its financial liability. In other words, it creates a pecuniary ceiling of 100,000 United States Dollars as the fiscal liability of a carrier to a passenger who incurred damage in the circumstances presented under Article 17 (1) supra, see Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512; Harka Air Serv. (Nig.) Ltd v. Keazor (2011) 12 NWLR (Pt. 1264) 320; British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253; Mekwunye v. Emirates Airlines (2019) 9 NWLR (Pt. 1677) 191.
Be that as it may, the provision of Article 21(1) supra is not an absolute prescription. It is a qualified provision. Its elasticity is located in Article 21 (2) of the selfsame Montreal Convention catalogued above. The latter provision makes the limitation of financial liability of a carrier per passenger, under Article 17 (1), inapplicable save it proves that the damage was not due to the negligent or other wrongful act or omission of the carrier or its servants or agent; or the damage was solely due to the negligence or other wrongful act or omission of a third party. Put simply, for a carrier to reap from the financial liability circumscription in paragraph 1 of Article 21, it must establish, by dint of evidence, under paragraph 2 of Article 21, that the damage is not an offspring of its own negligence or wrongful act or omission or that of its servants or agents or that the damage germinated from the negligence or other wrongful act or omission of a third party. This is a classic exemplification of reverse burden of proof because it fastens on a carrier defendant the burden to disprove its negligence or wrongful act. Thus, the provision of paragraph 2 polices the exproprietary provision in paragraph 1 of Article 21, on the limited liability of the carrier, which erodes on the pecuniary rights of a passenger victim provided the carrier fails to discharge the onus probandi on want of negligence on its part or its servants/agents or third party. The paragraph 2 douses the effervescence of paragraph 1 of Article 21 on the financial limitation of liability of a carrier to a passenger victim under Article 21. In effect, the monetary cap liability of a carrier, warehoused in paragraph (1), vaporizes on confrontation with the a carrier’s failure/neglect to establish the disjunctive conditions in paragraph (2) of Article 21 of the Montreal Convention. Where that is the case, the case-law, in its wisdom, decrees that the “issue of damages is left at large”, id est, without limitation, see Cameroon Airlines v. Otutuizu (supra); Harka Air Serv. (Nig) Ltd. v. Keazor (supra); British Airways v. Atoyebi (supra); Mekwunye v. Emirates Airlines (supra).
The lower Court, at page 2626, lines 4-6, volume, of the mountainous record, declared:
Therefore by Article 21(1) and (2) of the said Convention, in the circumstances of this case places a limit of liability of USD100,000.00 on the 1st Defendant. Therefore no matter the quantum of damages proved by the Plaintiff, the Court cannot award more than the equivalent of USD100,000.00 (One Hundred United States Dollars).
In the light of the above brief legal anatomy on the interpretation of the provisions, done in due obeisance to the law, the lower Court’s finding is highly assailable. It is not in sync with the tenet of the law. It will smack of judicial sacrilege to retain/preserve a finding that has disclosed a serious hostility to the law. In the end, I have no choice than to resolve the issue one in favour of the appellant and against the respondents.
Having dispensed with issue one, I proceed to settle issue two. The kernel of the issue is simple. It quarrels with the lower Court’s failure to grant the total sums of money the appellant claimed for his, the deceased daughter’s and the deceased parents’ pain, suffering and loss of the deceased in the sum of US$1,000,000.00, US$500,000.00 and US$1,000,000.00 respectively.
In spirited bid to castrate the decision of the lower Court on the award, the respondents erected the defence that those heads of claim are not grantable at all to the appellant. The respondents staked their defence on the provision of Article 29 of the Montreal Convention. Owing to its Olympian position on this vexed point, I will mine the provision out from its abode in the legislation, verbatim ac litteratim, as follows:
ARTICLE 29 – BASIS OF CLAIMS
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 thrust of the respondents’ contention is that the appellant’s claims were non-compensatory damages that are prohibited by Article 29 of the Montreal Convention. The appellant’s heads of claim, adumbrated above, are anchored on general damages.
Damages have been defined as: “that pecuniary compensation which law awards to a person for the injury he has sustained by reason of the act or default of another whether that act or default is a breach of contract or tort”, see Iyere v. B.F.F M Ltd (2008) 18 NWLR (Pt. 1119) 300 at 345, per Muhammad, JSC; Ukudie v. SPDCN (1975) 8-11 SC 155 at 162; Neka B.B.B. Mfg. Co. Ltd. v. A.CB. Ltd (2004) 2 NWLR (PH. 858) 521.
General damages are those damages that the law presumes as flowing from the wrong complained of by the victim. They need not be specifically pleaded and strictly proved, see U.B.N. Plc v. Ajabule (2011) 18 NWLR (Pt. 1278) 152; Neka B.B.B. Mfg. Co. Ltd. v. A.C.B. Ltd. (supra); Ajigbotosho v. R.C.C. Ltd. (2019) 3 NWLR (Pt. 1659) 289; UBN Plc v. Nwankwo (2019) 3 NWLR (Pt. 1660) 474; Ibrahim v. Obaje (2019) 3 NWLR (Pt. 1160) 389; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227.
It is now settled law, beyond any peradventure of doubt, that compensatory damages (called actual damages) and general damages are the same. They are damages recoverable as payment for actual injury or economic loss but do not include punitive or exemplary damages, see Odiba v. Azege (1998) 9 NWLR (Pt. 566) 370; British Airways v. Atoyebi (supra). In Mekwunye v Emirates Airlines (2019) 9 NWLR (Pt. 1677) 191, at 223, Peter Odili, JSC, incisively, declared:
“General damages are monetary recovery in a law suit for injuries suffered such as pain, suffering, opportunity cost, economic loss suffered and inability to perform certain functions or breach of contract for which there is no exact monetary value which can be calculated. General damages are distinct from special damages which are specific costs and so is different from punitive (exemplary) damages for punishment when malice, interest or gross negligence was a factor and to punish the defendant for his conduct in inflicting that harm.
I shall with humility reiterate that, general damages are said to be damages that the law presumes and that flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved.”
It is discernible from these magisterial pronouncements, in these ex cathedra authorities, that general damages come within the four walls of compensatory damages but fall outside the wide umbrella of non-compensatory damages which are disallowed by the Article 29 of the Montreal Convention. Incontestably, the appellant’s claims, which are in the heat of decimation and expunction, are hinged on general damages which the law has decreed as being synonymous with compensatory damages which are permissible and submissive to the provision of Article 29 of the Montreal Convention.
My noble Lords, in the spirit of ex abundanti cautela, there is one crucial canon of interpretation of statutes that itches for application on this knotty point. It is the Ejusdem Generis rule of construction of enactments. It denotes that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed. It is a question of an assumed intention of a statute. The rule is planted firmly in our jurisprudence and has received the blessing of the case-law in Nigeria. The rule has received the imprimatur of the case- law in Nigeria, see Jammal Steel Structures Ltd. v. ACB (1973) 8 NSCC 619 at 627; Oyeniran v. Egbetola (1997) 5 SCNJ 94; Shell v. FBIR (1996) 0-10 SCNJ 231; Fawehinmi v. IGP (2002) 7 NWLR (Pt. 767) 606; Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) 169; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446; FRN v. Ifegwu (2003) 15 NWLR (Pt. 842) 113; Okewu v. FRN (2012) 9 NWLR (Pt. 1305) 327; Ochala v. FRN (2016) 17 NWLR (Pt. 1541) 69; APC v. PDP (2015) 15 NWLR (Pt. 1481) 1; Ifeanyi v. FRN (2018) 12 NVVLR (Pt. 1632) 164; Mumini v. FRN (2018) 13 NWLR (Pt. 1637) 568; Mekwunye v. Emirates Airlines (supra).
The twilight of Article 29 of the Montreal Convention hosts the contentious limb of it, id est, in any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable. It can be gleaned from the controversial limb that it terminates with an omnibus phrase “any other non-compensatory damages”, after listing punitive and exemplary damages. In my considered view, the general phrase, “any other non-compensatory damage”, is confined to species of damages that have some romance/semblance with those punitive and exemplary damages outlined therein such as vindictive damages. Put starkly, the phrase, “any other non-compensatory damages”, does not embrace general damages so as to bring it under the canopy of the prohibitive limb of Article 29 of the Montreal Convention. This is another coup de grace to the respondents’ weak-kneed defence.
Flowing from this brief legal dissection on Article 29 of the Montreal Convention, done in keeping with the law, the appellant’s claims, which are under the shelter of general damages, do not, in least, fall within the perimeter of those damages that are disowned and proscribed by Article 29 of the Montreal Convention. It flows that the appellant’s solicitation for general damages does not constitute a defilement of the elastic provision of Article 29 of the Montreal Convention. It is, therefore, intra vires the power and jurisdiction of the lower Court to grant them subject to the overriding necessity of proof. In effect, the defence of non-compensatory damages, brandished and paraded by the respondents against the claims, flies in the face of the law. It cannot attract the approbation of this Court.
Now, the gravamen of the appellant’s nursed grievance, indeed his trump card on the nagging issue, is that the lower Court awarded “paltry sums” of money as damages for those three reliefs outlined at the cradle of this issue. I had, whilst dealing with issue one, arrived at a finding that the lower Court deeply erred in law when it limited the liability of the first respondent to the sum of US$100,000.00 under Article 21 of the Montreal Convention. The appellant had not furnished any extenuating circumstances that will compel me to disturb that finding which I reached after due consultation with the law.
I had, at the dawn of this judgment, found that for the first respondent to reap from the beneficent vineyard of the financial limitation in the prescription of Article 21 of the Montreal Convention, it must satisfy the reverse burden proof, videlicit, that the negligence or wrongful act or omission was not that of it or its servants or agents or that of a third party.
In due fidelity to the desire of the law, I have consulted the record, the spinal cord of the appeal. My port of call is at the residence of the first respondent’s evidence which monopolise pages 1617, 1618, 1642 – 1649 and 1686-1693, volume v, of the elephantine record. I have perused the evidence with the finery of a tooth comb. Admirably, they do not harbour any ambiguity. At once, I have given an in-depth study to its documentary evidence – exhibits K, K1 and K2. Incidentally, I am unable to find, even with the prying eagle-eye of an appellate Court, where the first respondent offered the evidence to show that the negligence or wrongful act or omission, which caused the unfortunate crash of 3rd June, 2012, was not attributable to it or its servants or agents or any third party. In other words, the first respondent, in its infinite wisdom, starved the lower Court of those pieces of critical evidence that would have made it enjoy the financial limitation provision in Article 21 of the Montreal Convention. In a nutshell, the first respondent failed woefully to discharge that reverse burden of proof which the law has laden on it. The caustic consequence of this costly failure is not far-fetched. In the eyes of the law, the financial limitation provision ceases to be available to the first respondent.
As already noted, the appellant pegged those reliefs/claims on general damages. It is at the discretion of the Court to award general damages, see Cameroon Airlines v. Otutuizu (supra); Ahmed v. CBN (2013) 2 NWLR (Pt. 1339); Unity Bank Plc v. Ahmed (2020) 1 NWLR (Pt. 1705) 364. Did the lower Court exercise its discretion properly in awarding the general damages? This involves a little excursion into the large domain of discretionary power of Court.
Discretion connotes: the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina George Ind. Ltd. (2019) 16 NWLR (Pt. 1699) 560. An exercise of discretion does not grant the Court the nod to act arbitrarily or capriciously. Contrariwise, it gives it the latitude to act judicially and judiciously, see Shittu v. PAN Ltd. (2018) 15 NWLR (Pt. 1642) 195; APGA v. Oye (2019) 2 NWLR (Pt. 1657) 472; Adeniyi v. Tina George Ind. Ltd. (supra). To act judicially signifies “…discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances”, see Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand, “Acting judiciously… is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision”, see Babatunde v. P.A.S & T.A Ltd. (supra), at 164, Per Ogbuagu, JSC.
Incontestably, in the wide realm of discretion, previous decisions are not of much relevance. The reason is simple. The facts and circumstances of two cases are not always on all fours. A Court of law is not, willy-nilly, bound by a precedent in an earlier decision as that will be akin to putting an end to the exercise of discretion. It can only use such decisions as guidelines, see Abacha v. State (2002) 5 NWLR (Pt. 761) 638; Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270; Suleiman v. C.O.P., Plateau State (supra); Babatunde v. P.A.S. & T.A. Ltd. (supra); Oyegun v. Nzeribe (2010) All FWLR (Pt. 542) 1612; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581); 1 NJC v. Dakwang (supra); Adeniyi v. Tina George Ind. Ltd. (supra).
An appellate is usually loath to interfere with an exercise of discretion save where it is: wrongly exercised; tainted with irregularity, irrelevant or extraneous matters or defilement of the law, or in the interest of justice, see Ajuwa v. S.P.D.C.N. Ltd (supra); T.S.A. Ind. Ltd v. Kema Inv. Ltd (2006) 2 NWLR (Pt. 964) 300; Dick v. Our and Oil Co. Ltd. (2018) 14 NWLR (Pt. 1638) 13; FRN v. Yahaya (2019) 7 NWLR (Pt. 1670) 85; Nzekwe v. Anaekwenegbu (supra); Takoh v. MTN (Nig) Comm. Ltd. (2019) 10 NWLR (Pt. 1679) 23; Ogunpehin v. Nucleus Venture (2019) 16 NWLR (Pt. 1699) 533.
At this juncture, it is apropos to observe, apace, that the appellant’s suit, which parented the appeal, is an amphibious matter in that it embraces contract and tort. The latter traces its ancestry to the former, see Eagle Superpack Ltd. v. ACB Plc (supra). The first respondent was the tortfeasor in both. In such a double scenario, the law grants the Court, the unbridled liberty to damnify the violator in damages, see Makwe v. Nwukor (supra); Oando (Nig.) Plc. V. Adijere (W.A.) Ltd. (supra); Harka Air Serv. (Nig.) Ltd. v. Keazor (2011) 13 NWLR (Pt. 1264) 320; British Airways v. Atoyebi (supra). Interestingly, in the domain of tort of negligence, the law allows for damages for natural loss, pains, sufferings, injury, mental feelings and discomfort even when they are not monetarily quantified, see Eseigbe v. Agholor (1993) 12 SCNJ 82; Ighreriniovo v. S.C.C. (Nig.) Ltd.(2013) 10 NWLR (Pt. 1361) 138; Muhammad v. IGP (2019) 4 NWLR (Pt. 1663) 492.
In an abiding loyalty to the dictate of the law, I have situated the trinity awards made by the lower Court with the elements of discretion displayed above. The raison d’etre for the juxtaposition is not moot. It is to discover whether the lower Court flouted or respected the elements of discretion in those awards. Unarguably, the awards were plagued by irregularity flowing from the desecration of the law as ordained in the sacrosanct provision of Article 21 of the Montreal Convention. The lower Court, with due reverence, wrongly exercised its discretionary powers which inflicted a serious miscarriage of justice on the appellant’s case. It ignored the competing rights of the parties in the case. In essence, it failed to act judicially and judiciously. On this note, I am compelled to crown the awards with the deserved toga of injudicious awards. In sum, the awards were guilty of the negative elements of discretion that will earn the intervention of this Court.
The appellant implored this Court to interfere with the award of US$60,000.00 general damages as being an affront to the law. An appellate Court does not usually interfere with award of damages unless: (a) the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard of some principles of law; or (c) where the trial Court acted under misapprehension of facts; or (d) where it has taken into account irrelevant matters or failed to take into account relevant matters; or (e) where injustice would result if the appellate Court does not interfere; or (f) where the amount awarded is ridiculously low or high that it must have been a wholly erroneous estimate of the damages, see SPDCN v. Tiebo VII (supra); Cameroon Airlines v. Otutuizu (supra); British Airways v. Atoyebi (supra); Agu v. General Oil Ltd. (supra); Mekwunye v. Emirates Airlines (supra).
I have just found that the lower Court did not pay due allegiance to the law in the award of US$60,000.00 damages in the case. This is because, it treated it with disdain and contempt the principles of the law governing award of damages in aviation accident. Its disrespect for the law snowballed into injustice that begs for an interference by this Court. The award is ridiculously low in the face of the eternal pains, sufferings, eternal loss of companionship and affection occasioned by the sudden death of the deceased. The infinitesimal amount does not serve as sufficient recompense to the appellant for the irreversible loss of the deceased and the concomitant effects associated with it. In all, the appellant showcased sufficient justifications to stimulate this Court to interfere with the minuscule amount of US$60,000.00 awarded to the appellant in the tripartite reliefs. This legal exposition, with due regard, exposes the poverty of the respondents’ scintillating argument to salvage the award within the ambit of the aviation law. The award insulted the law. I will not hesitate to resolve the issue two in favour of the appellant and against the respondents.
It remains to treat issues three and four. A careful look at the duo issues, clearly, reveals that they are intertwined as they share a common target: to puncture the lower Court’s evaluation of the evidence before it on the appellant’s disproof of the claims. In the face of this interwoven relationship, I will, in order to conserve the scarce judicial time and for spatial constraint, amalgamate them and fuse their considerations without each issue compromising its identity. The hub of the two issues is clear. It is an onslaught against the lower Court’s evaluation of the evidence. Put bluntly, the appellant accused the lower Court of improper evaluation of evidence because the judgment was against the weight of evidence.
A castigation of a decision on the premise that a judgment is against the weight of evidence: Invariably couched as an omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law, Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondents is against the totality of the evidence placed before the trial Court. In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC 91 Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362 Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60, Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande 2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412.
Instructively, evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in finding of fact. This primary evidentiary duty falls squarely within the exclusive preserve of a trial Court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate Court, to watch the witnesses, form impression on their demeanour and assess the credibility or otherwise of their evidence, see Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. An appellate Court is disrobed of the vires to interfere with a finding of a trial Court anchored on demeanour and credibility of witnesses, see Adebanjo v. State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt. 1695) 289.
The law has saddled a trial Court, like the lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. it has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135;Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635; Oguntade v. Oyelakin (2020) 6 NWLR (Pt. 1719) 41. I have matched the decision of the lower Court with the positions of law outlined above with a view to identifying their infractions or compliance. I will be guided by these hallowed legal principles as the barometer to gauge the propriety or otherwise of the lower Court’s findings in the case.
The appellant’s foremost grudge pertains to the lower Court’s finding that the appellant’s claims on future dependence on the deceased’s earnings, plaintiff’s loss of earnings, future dependence on deceased’s income, future dependence on plaintiff’s pension, future dependence on deceased’s services, future healthcare costs and deceased’s pre-death pain and suffering were speculative.
To begin with, in the sight of the law, speculation denotes “…a mere imaginative guess which even when it appears plausible should not be allowed by a Court to fill any gap in the evidence before it”, see Olalomi Ind. Ltd. v. N.I.D.B. Ltd. (2009) 16 NWLR (Pt. 1167) 266 at 304, per Adekeye, JSC.
The law forbids a Court of law from indulging in speculation, see Uwagboe v. State (2008) 12 NWLR (Pt. 1102) 621; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; Mohammed v. Wamako (2018) 7 NWLR (Pt. 1619) 573; Gaba v. Tsoida (2020) 5 NWLR (Pt. 1716) 1; Sharing Cross E.S. Ltd. v. Umaru Adamu Ent. Ltd. (2020) 10 NWLR (Pt. 1733) 561; Ashiru v. INEC (2020) 16 NWLR (Pt. 1751) 416.
I have given a microscopic examination to appellant’s army of reliefs which the lower Court branded as speculative. Even from the nomenclature and wordings of those legion of claims, they echo comfortably in the realm of imagination. This is because most of them are couched in futuro without taking into cognisance the inevitable uncertainties of life such as loss/termination of job, infirmity/ailment, disease, remarriage et cetera. On this score, the claims are pressed to extinction by the weight of multiplied contingencies which the appellant failed to factor into them. The appellant overlooked the fact that those earnings are subject to taxation. Curiously, the appellant proffered no concrete evidence, viva voce or documentary, to consolidate the prospective claims. In my view, they can, at least, be described as a mere speculative possibility of pecuniary advantage. The law does not dignify such sentimental/conjectural claims with a success. It stems from the foregoing that the lower Court did not fracture the law when it stigmatised those galaxy of reliefs as speculative. I accord a wholesale affirmation to the solemn finding.
The appellant’s other coup de main circles around the lower Court’s categorisation of his claims for plaintiff’s past loss of earnings and past dependency on the plaintiff’s pension as remote claims.
It admits of no argument that the ancient doctrine of remoteness of damage traces its paternity to the English. case of Hadley v. Baxendale (1854) 9 Exch. 741 at 754, where Aldrson B. , insightfully, proclaimed:
“Now we think the proper rule in such a case as the present is this:- Where two parties have made a contract which one of them has broken, the damages in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”
The doctrine has been propagated properly in the Nigerian corpus juris in an avalanche of authorities, see P-Z v. Ogedengbe (1972) 3 SC 98; Omonuwa v. Wahabi (1976) 4 SC 37; Swiss Nig. Wood Industries Ltd. v. Bogo (1971) 1 UILR 337; Jammal Engineering v. Wrought Iron Ltd. (1970) NCLR 295, Neka B.B.B. Mfg. Co. Ltd. v. ACB Ltd. (2004) 2 NWLR (Pt. 858) 521; G. Chitex Ind. Ltd. v. O.B.I. (Nig.) Ltd, (2005) 14 NWLR (Pt. 945) 392.
In order to pacify the law, I have married the two reliefs with the ingredients of the doctrine of remoteness of damage articulated above. It cannot be gainsaid that those claims are not traceable to the casus belli in the case – deceased’s death. They fall outside the legal province of the appellant’s cause of action which is predicated on the demise of the deceased following the ill-fated crash. The damages flowing from those claims did not reasonably arise naturally from the breach of the contract of carriage of the deceased itself nor were they in the contemplation of the contracting parties, during the formation of the contract, as the probable consequence of the violation. It must be emphasised that, in the varied web of human affairs, the law cannot take account of everything that is associated with a wrongful act. Hence, it regards some anterior or posterior matters outside the scope of its selection. The duo claims are marooned in the murky ocean of remoteness of damage. The lower Court’s finding thereon is unassailable. It does not deserve the reprobation of this Court.
Another grouse which the appellant heaped on the decision centres on the lower Court’s declaration that some of the claims were not proved by evidence. Those claims were/are: funeral expenses, deceased’s personal belongings, past dependency on deceased’s earnings, past dependency on deceased’s person and past dependency on the deceased’s services.
There is no gainsaying the fact that most of these enumerated flood of claims are rooted in special damages. Special or particular damages are those damages which are the actual, but not necessary, result of the injury complained of, but follow it as a natural and proximate consequence in a particular case, that is, by reason of special circumstances or conditions, see Ahmed v. CBN (2013) 2 NWLR (Pt. 1339); U.B.N. Plc v. Ajabule (2011) 18 NWLR (Pt. 1278) 152; Ajigbotosho v. R.C.C. Ltd. (2019) 3 NWLR (Pt. 1659) 287; UBN Plc v. Nwankwo (2019) 3 NWLR (Pt. 1660) 474; Ibrahim v. Obaje (2019) 3 NWLR (Pt. 1660) 389; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227. Special damages must be specially pleaded with particulars and strictly proved. By a strict proof, the law means that a party claiming special damages should establish his entitlement to them by credible evidence of such a nature/character that would suggest he is indeed entitled to them, see Oshinjinrin v. Elias (1969) NSCC vol. 6, 95; Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512; Neka B.B.B. Mfg. Co. v. Ltd. A-C.B. Ltd. (2004) 2 NWLR (Pt. 858) 521; S.P.D.C. (Nig.) Ltd. v. Tiebo VII (2005) 9 NWLR (Pt. 931) 439; Gonzee (Nig.) Ltd. v. N.E.R.D.C. (2005) 13 NWLR (Pt. 943) 634;N.N.P.C v. Clifco (Nig.) Ltd.(2011) 10 NWLR (Pt. 1255) 209; Ahmed v. CBN (supra); Ajagbe v. Idowu (2011) 17 NWLR (Pt. 1276) 422; Akinkugbe v. E.H. (Nig.) Ltd. (2008) 11 NWLR (Pt. 1098) 375. Admission by an opposition party to special damages does not relieve a claimant from strict proof, see S.P.D.C. (Nig.) Ltd. v. Tiebo VII (supra); Akinkugbe v. E.H. (Nig.) Ltd. (supra);N.N.P.C. v. Clifco (Nig.) Ltd (supra).
I have, in other to satisfy the law, given a holistic/global examination to all the pieces of evidence offered by the appellant. The appellant failed to proffer impregnable/compelling evidence to demonstrate that he incurred funeral expenses and did foot the bills for them. Ditto for the deceased’s personal belongings that perished with her. Evidence galore on record that the appellant was an affluent person in the society and richer than the deceased in all ramifications. In the absence of the appellant not wearing the unenviable badge of indigency/impecuniosity, it was difficult to prove that he depended on the deceased’s earnings and pensions. The unchallenged oral evidence, professed by the appellant, was that the family had maids, househelps and drivers. In the presence of that uncontradicted evidence, it will be preposterous to hold that the appellant depended on the deceased’s services on house chores.
The corollary of the paucity/drought of credible evidence in proof of those adumbrated claims is simple. It revealed that the respondents’ pan in the proverbial scale of justice hosted more admissible, credible and conclusive evidence. A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. I. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikepazu (2017) 15 NWLR (Pt. 1589) 345. in the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474.
The lower Court found, rightly in my view, that the evidence of the respondents, based on their qualitative nature, preponderated over those of the appellant’s. The net effect is that the appellant failed to prove his case on the balance of probability as enjoined by the adjectival law. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011;Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399. (Pt. 1372) 474; APC v. Karfi (2018) 6 NWLR (Pt. 1616) 479; Ojobo v Moro (2019) 17 NWLR (Pt. 1700) 166.
Flowing from the expansive tour d’horizon on the evaluation of evidence, done in due obedience to the law, the lower Court’s ultimate findings on those heads of claim, x-rayed above, are immaculate ones. The charge of perfunctory evaluation of evidence, levelled against the findings by the appellant, is a phantom as well as uncharitable and unsustainable. In this wise, all the diatribes, which the appellant rained against them, pale into insignificance. I, therefore, with due deference, dishonour the learned appellant’s counsel’s salivating invitation to sacrifice the findings, on the non-proof of those listed heads of claim, on the undeserved altar of improper evidential evaluation. As a result, I have no option than to resolve the conflated issues three and four against the appellant and in favour of the respondents.
On the whole, having resolved issues one and two in favour of the appellant and issues three and four against him and vice versa, the destiny of the appeal is obvious. The appeal succeeds partly. Consequently, I allow the appeal in part. Accordingly, I set aside the awards of US$20,000,00, US$30,000.00 and US$10,000.00 for the pain, suffering, loss of companionship and affection by the appellant, the deceased’s daughter and parents respectively. I replace them with US$100,000.00, US$100,000.00 and US$50,000.00 respectively totalling US$250,000.00 which, on conversion at the prevailing exchange rate of US$ 1 to N155.25 as at 3rd June, 2012, translates to N38,812,500.00 (Thirty-Eight Million, Eight Hundred and Twelve Thousand, Five Hundred Naira only). The parties shall bear the respective costs which they expended in the prosecution and defence of the partially – fruitful appeal.
Consideration of the cross-appeal.
The respondents were aggrieved by part of the decision of the lower Court. Hence, on 20th May, 2020, the respondents, as cross-appellants, filed a 3 – ground notice of cross-appeal which is found at pages 2646-2652, volume v, of the record. Later on, the cross-appellants, with the leave of this Court, filed an amended 3 – ground notice of cross-appeal on 28th September, 2020 and deemed properly filed on 28th October, 2021 wherein they prayed this Court as follows:
i. An Order setting aside the learned trial judge’s interpretation of Article 29 (Third Schedule) of the “NCAA 2006”.
ii. An Order for determination on the proper interpretation of Article 29 (Third Schedule) of the “NCAA 2006”.
iii. An Order setting aside the decision of the learned trial Judge that the Respondent can bring this action, aviation case, under the Fatal Accident Laws of Lagos State and the Administration of Estate Laws of Lagos State.
iv. An Order for determination on the proper interpretation and application of Article 23 (Third Schedule) of the “NCAA 2006”.
v. An Order setting aside the Learned trial Judge’s finding that the damages award can be made in either USD or Naira.
vi. An order replacing the award of sum of USD61,000.00 (Sixty One Thousand United States Dollars) with an order that the same should be paid in Naira equivalent.
vii. An Order setting aside the Learned Trial judge’s award of the sums of US$20,000 to the Respondent for loss of companionships, US$30,000 for daughter’s pain and loss of mother’s companionship and US$10,000 to the deceased parents for pain and suffering.
Thereafter, the parties filed and exchanged their respective briefs of argument. The cross-appeal was heard, alongside the main appeal, on 14th March, 2022.
During its hearing, learned counsel for the cross-appellants, Taiwo Kola-Balogun, Esq., adopted the cross-appellants’ brief of arguments, filed on 28th September, 2020, and the cross-appellants’ reply brief of argument, filed on 23rd February, 2021, both deemed properly filed on 14th March, 2022, as representing his arguments for the cross-appeal. He urged the Court to allow it. In the same vein, learned senior counsel for the cross-respondent, Dr. B.A.M. Ajibade, SAN, adopted the cross-respondent’s brief of argument, filed on 24th December, 2020 but deemed properly filed on 14th March, 2022, as forming his contentions against the cross-appeal. He urged the Court to dismiss it.
In the cross-appellants’ brief of argument, learned counsel framed three issues for determination, namely:
1. Whether the learned trial Judge was right/correct in holding that the Cross-Respondent can bring their action or claim under the Fatal Accident Law of Lagos State 2003 and the Administration of estate Law of Lagos State 2003 in an aviation matter governed solely by the Convention.
2. Whether the learned trial Judge was right when he held that the judgment sum should be paid in United States Dollars and not Nigerian Naira contrary to the provisions of Article 23 (Third Schedule) “NCAA 2006”.
3. Whether the learned trial Judge was right in making an award for pain & suffering and loss of companionship, which are not quantifiable, non-recoverable, and contrary to Article 29 (Third Schedule) “NCAA 2006”.
In the cross-respondent’s brief of argument, learned senior counsel formulated three issues for determination:
1. Whether the Judge was correct in his interpretation of Article 29 (Third Schedule) of the NCAA 2006 (“the Montreal Convention” or “the Convention”) and its application to this case, when he held that the provisions of Article 29 permitted the Cross-Respondent to bring an action for damages arising from the death of an aircraft passenger, pursuant to and under the Fatal Accidents Law of Lagos State and the Administration of Estates Law of Lagos State?
2. Whether the Judge was correct when he held that he could make an award and the Plaintiff could claim either in United States Dollars (USD) or Naira.
3. Whether Article 29 (Third Schedule) of the NCAA 2006 (“the Montreal Convention” or “the Convention”) or any other law prohibits an award of damages for the pain and loss of companionship suffered by the dependents of a deceased victim of an air crash, such as the Cross- Respondent and the daughter and parents of the Deceased as awarded by the Judge in this case.
The two sets of issues, save for semantics, are symmetrical in substance. For this reason of oneness, I will base the cross-appeal on the issues canvassed by the cross-appellants: the undisputed owners of the cross-appeal.
Submissions on the issues.
Issue one.
Learned cross-appellants’ counsel submitted that the suit is an aviation matter that is governed solely by the NCAA, which incorporated the Montreal Convention, to the exclusion of any other law. He relied on Harka Air Services (Nig.) Ltd. v. Keazor (supra); Otoakhia v, Aero Contractors Nig. Ltd. (2014) LPELR-23319 (CA); Section 48 (2) of the NCAA; Article 29 of the Montreal Convention. He observed that the lower Court’s holding that the action could be brought under the Fatal Accidents Law of Lagos State and the Administration of Estate Law of Lagos State, to govern aviation matters, ran contrary to the provision of Article 29. He asserted that the provisions of the Convention are above those of domestic legislation. He cited Abacha v. Fawehinmi (2000) 4 SC (Pt. 11) 1. He added that the provisions of the Montreal Convention are applicable to aviation matters and a party has no right to choose between it and domestic or common law.
He referred to Cameroun Airlines v. Abdul Kareem (2003) 11 NWLR (Pt. 830); EIAI Israel Airlines Ltd. v. Tseng 919 F. Supp. 155 (S.D.N.Y. 1996); Sidhu v. British Airways (1997) 1 ALL ER 193; Air France v. Saks 105 S.C. 1338 470 US, 392 84 L. Ed 2d 289 (1985). He reasoned that any domestic legislation which is in conflict with domesticated convention is null and void. He cited Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228; Harka Air Services (Nig.) Ltd. v. Keazor (2011) 13 NWLR (Pt. 1264) 320; Emirates Airlines v. Tochukwu Aforka (supra); British Airways v. Atoyebi (2014) LPELR-23120 (SC). He explained that those mentioned domestic laws have their provisions on conditions and limits of liability contrary to those of the Montreal Convention which make their application to aviation matters void. He referred to Harka Air Services (Nig.) Ltd. v. Keazor (supra). He claimed that the lower Court confused “founding” of an action for damages (establishment of cause of action) with “bringing an action” which relates to applicable law. He concluded that the suit could not be brought under the Fatal Accidents Law of Lagos State and the Administration of Estate Law of Lagos State.
For the cross-respondents, learned senior counsel argued that where there is conflict between the domestic law and the Montreal Convention, the latter will prevail but if not the domestic law will operate side by side with it. He relied on Harka Air Services (Nig.) Ltd. v. Keazor (supra); Otoakhia v. Aero Contractors Nig. Ltd. (supra). He took the view that Article 29 of the Montreal Convention recognises the fact that actions could be founded under the Convention, in contract, in tort or under other laws subject to the restriction on conditions and limits of liability therein. He opined that the Article should be given literal interpretation. He cited Abegunde v. Ondo State House of Assembly (2015) LPELR-24588 (SC). He stated that the title of the Convention makes it not a comprehensive code as it deals with certain rules. He observed that there is no conflict between the Montreal Convention and those domestic laws for argument on superiority. He explained that the equivalent provision in the Warsaw Convention has been interpreted in other jurisdiction to include domestic law. He referred to Zicherman v. Korean Airlines Co. (1996) 516 US 217. He analysed the cases of Cameroun Airlines v. Abdul Kareem (supra); El Al Israel Airlines Ltd. v. Tseng (supra); Sidhu v. British Airways Plc (supra); Air France v. Saks (supra); Emirates Airlines v. Tochukwu Aforka (supra) and British Airways v. Atoyebi (supra), cited by the cross-appellants, to show that they are inapplicable and of limited utility to the interpretation of Article 29. He showed the distinction between Article 24 of the Warsaw Convention and Article 29 of the Montreal Convention. He stated that in the United Kingdom, a signatory to the Montreal Convention, aviation claims are brought under domestic law – Fatal Accidents Act, 1976 which the Fatal Accidents Law of Lagos State looks like. He insisted that the action was properly brought under the domestic law forum.
On points of law, learned cross-appellants’ counsel maintained that the Courts in United Kingdom, United States, France, Canada and Nigeria have affirmed the exclusivity principle of the Montreal Convention and Warsaw-Hague Convention. He cited Sidhu v. British Airways Plc, (supra); Abnett v. British Airways Plc (1997) 1 ALL ER 193; El Al Israel Airlines Ltd. v. Tseng (supra); Scott v. Thomas Cook Tour Operators Ltd.; Hook v. British Airways Plc (2012) 2 ALL ER (Comm.) 1265; Harka Air Services (Nig.) Ltd. v. Keazor (supra); Thi Bodeau v. Air Canada; (2014) SCC 67/(2014) 3 S.C.R 340; Zicherman v. Korean Airlines Co. (supra). He added that the effect of Article 24 of the Warsaw Convention and Article 29 of the Montreal Convention is the same and the added words in the latter do not lessen its exclusivity. He referred to Stott v. Thomas Cook Tour Operators Ltd. (Secretary of State for Transport Intervening) (2014) AC 1347; Schaefar-Condumari v. U.S. Airways GP., Inc., 2009 WL 4729882; Fadiiah Societie Air France, 987 F. Supp. 2d 1057, 1062 (C.D. Cal. 2013)
Issue two.
Learned cross-appellants’ counsel argued that the lower Court was wrong when it held that the judgment sum should be paid in United States Dollars instead of the Nigerian Naira contrary to Article 23 of the Montreal Convention. He asserted that the provision should be given literal interpretation. He relied on Gana v. SDP (2019) LPELR-47133 (SC); Lawal v. EFCC (2020) LPELR-49390 (CA); Abegunde v. Ondo State House of Assembly (supra); Nabhan v. Nabhan (1967) 1 ALL NLR 47; Ibrahim v. Mohammed (2003) 2 SC 127; FBN v. Maiwada (2012) LPELR-9713 (SC). He stated that Article 23 is mandatory since the word “shall” is used in it. He cited Onochie v. Odogwu (2006) LPELR-2689 (SC). He persisted that the lower Court had no grounds to interpret the provision contrary to the drafter’s interpretation.
On behalf of the cross-respondent, learned Silk submitted that Section 48 (3) of the NCAA and Article 28 of the Montreal Convention allow for advance payment in United States Dollars. He said that the advance payment by the first cross-appellant was in Dollars – US$30,000.00. He reasoned that the Nigerian Courts have jurisdiction to make awards in foreign currency. He relied on Koya v. UBA Ltd. (1997) LPELR-1711 (SC); Harka Air Services (Nig.) Ltd. v. Keazor (supra). He opined that Article 23 prescribes that the sums stipulated in the Montreal Convention will be converted to Naira at the prevailing exchange rate and the cross-respondent is not asking for anything different. He concluded that provisions of NCAA and the Montreal Convention support the holding of the lower Court.
On points of law, learned cross-appellants’ counsel posited that the provisions of Section 48 (3) and Article 28 of the Montreal Convention relate to advance payment which is distinct from the provision of Article 23 that deals with conversion of the sums mentioned in Article 21.
Issue three.
Learned cross-appellants’ counsel contended that the lower Court was wrong to award damages for pain and suffering and loss of companionship which are not recoverable. He relied on Eagle Transport Co. Ltd. v. Anyia (2017) LPELR-42620; Jenyo v. Akinreti (1990) 2 NWLR (Pt. 135) 633. He opined that the awards for bereavement and emotional stress and loss of companionship are inconsistent with Article 29 of the Montreal Convention as they are non-compensatory damages. He explained that the NCAA and the Montreal Convention only make award for claims for damages in case of death/bodily injury of passengers and loss/damages of baggage under Articles 17, 21 and 22 of the Montreal Convention. He maintained that the award of US$60,000.00 for pain and suffering was wrong as it was non-compensatory damages excluded by Article 29 of the Montreal Convention.
On the part of the cross-respondent, learned senior counsel submitted that awards for pain and suffering and loss of companionship are not excluded by Article 29 of the Montreal Convention. He conceded that they are non-pecuniary (incapable of precise mathematical computation) but not non-compensatory. He stated that Section 4 (1) of the Fatal Accidents Law of Lagos State authorises the Judge to grant damages for injuries suffered without any restriction. He cited Adeleke v. Anike (supra). He analysed the case of Jenyo v. Akinreti (supra) to show that the lower Court was right to award those non-pecuniary damages. He claimed that the Courts have awarded non-pecuniary damages after the case of Jenyo v. Akinreti (supra). He referred to Nzekwe v. NNPC (1990) 5 NWLR (Pt. 153) 691; Adeleke v. Anike (supra). He noted that Fatal Accidents Act, 1846 of the UK, Lord Campell’s Act, had been amended to accommodate awards of damages for bereavement, pain and suffering of the deceased and the same awardable by Section 1A of the UK Administration of Justice Act, 1982 and Section 1A (1) – (5) of the Fatal Accident Act, 1976.
On points of law, learned cross-appellants’ counsel argued that the case of Nzekwe v. NNPC (supra) was decided in error and the case of Jenyo v. Akinreti (supra) overrides it. He insisted that the case of Zicherman v. Korean Airlines Co. (1996) 516 US 217 rejected claim for loss of society-pain and companionship.
Resolution of the cross-appeal.
For purposes of neatness, I will deal with the trinity issues in the cross-appeal seriatim. In view of this, I will kick start with the consideration of issue one. The meat of the issue is not a second guess. It queries the legality/propriety of the lower Court’s finding that the cross-respondent can bring their action under the Fatal Accidents Law of Lagos State, 2003 and Administration of Estate Law of Lagos State when aviation matters are governed solely by the Montreal Convention.
A dispassionate resolution of this nagging issue will necessarily necessitate a beckon on the province of Warsaw Convention in order to connect it with the Montreal Convention. Undoubtedly, the Warsaw Convention, which was the predecessor/forerunner of the Montreal Convention, was domesticated by the Carriage by Air (Colonies, Protectorates and Trust Territories) Colonial Order, 1953 which was repealed by Section 77 (1) the Civil Aviation Act, 2006 (NCAA). It is a recognised canon of interpretation of statute that where the provision of a legislation is in pari materia with a prescription of another enactment that has already been interpreted by a competent Court, the Court will utilise the latter as the yardstick for construing the former especially if they are coterminous and warehoused under kindred legislations, see Okon v. State (1988) 1 NWLR (Pt. 69) 172; Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606; Fasak in Foods (Nig.) Ltd. v. Shosanya (2006) 10 NWLR (Pt. 987) 126; CCB v. A-G., Anambra State (1992) 10 SCNJ 137. In A-G., Abia State v. A-G., Fed (2005) 12 NWLR (Pt. 940) 452 at 506, Ejiwunmi, JSC, incisively, declared:
“I have earlier stated that Section 7 (1) of Decree No. 36 (States (Creation and Transitional Provisions) Decree No. 36 of 1961) is in pari materia with Section 7 (1) of Decree No. 41. May I add that is a recognized principle that where the provisions of a statute or section of a statute are in pari materia, light may be thrown on the meaning of such a provision of a statute or section which is in pari materia by referring to a previous decision of a competent Court where similar provisions had been previously considered.”
Incontestably, the ousted Warsaw Convention and the extant Montreal Convention share a common purpose – regulation of Carriage by Air within and outside Nigeria. In essence, the two conventions come under the wide umbrella of kindred legislations. To this end, a party is at liberty to tap from the decisions weaved on the provision of the repealed Warsaw Convention in deserving circumstances. This is more so as acts done and rights acquired under an expired law are wholly preserved by virtue of Section 6 (1) of the Interpretation Act, Cap I 23, Laws of Federation of Nigeria, LFN 2004, see Lakanmi v. Adene (2003) 10 NWLR (Pt. 828) 353; Abubakar v. Bro. & AP. Ltd. (2007) 147 LRCN 1091; Goldmark (Nig.) Ltd. v. Ibafon Co. Ltd (2012) 10 NWLR (Pt. 1308) 291; L.S.B.P.C. v. Purification Tech. (Nig.) Ltd. (2013) 7 NWLR (Pt. 1352) 82; A. G., Abia State v. A. – G., Fed. (2002) 6 NWLR (Pt. 763) 364; L.S.D.P.C. v. Adeyemi-Bero (2005) 8 NWLR (Pt. 927) 336; A.G Lagos State v. A, – G., Fed. (2003) 12 NWLR (Pt. 833) 11. Taking shelter under the above hallowed principle of interpretation of statute, I will harness from the principles of law enunciated under the erstwhile/defunct Warsaw Convention in deserving circumstances.
The main plinth of the cross-appellants’ contention is that the Montreal Convention governed aviation matters to the exclusion of any other law in Nigeria: common law or statutory. The cross-appellants verged their stance on the prescription of Section 48 (2) of the NCAA Being the pivot of the issue, it is important to extract it from its lodgement in the legislation. It reads:
(2) The provisions contained in the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Montreal on 28th May, 1999 as has been modified and set out in the Third Schedule of this Act and as amended from time to time, shall from commencement of this Act have force of law and apply to non-international carriage by air within Nigeria, irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other person.
In this wise, the law insists that the Court employs the literal canon of interpretation of statute in construing it by giving its words their ordinary grammatical meaning without any embellishments.
Exultantly, the provision has fallen for interpretation before the apex Court in Harka Air Serv. (Nig.) Ltd. v. Keazor (2011) 13 NWLR (Pt. 1264) 320, at 344, where Adekeye, JSC, incisively, declared:
The Warsaw Convention is an International treaty, an International agreement, a compromise principle which the high contracting States have submitted to be bound by the provisions. They are therefore an autonomous body of law whose terms and provisions are above domestic legislation. Thus, any domestic legislation in conflict with the Convention is void. The purpose and intention of the Warsaw Convention is to remove those actions governed by the Warsaw Convention as amended by the Hague Protocol from the uncertainty of the domestic laws of the member States.
The law is that where domestic/common law right has been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right and not the domestic/common law. Hence an air passenger is not at liberty to choose as between the provisions of the convention and the domestic/common law for claims for damages against the carrier. Such claims have to be asserted only in accordance with and subject to the terms and conditions of the Convention and cannot be pursued under any other law.
Cameroon Airlines v. Abdul Kareem (2003) 11 NWLR (Pt. 830) Pg. 1; El Al Israel Airlines Ltd. v. Tseng 919 F-Supp 155 S.D.N.Y 1996
Sidhu v. British Airways (1997) 1 ALL ER pg. 193
Air France v. Saks 105 S. ct. 1338 470 U.S., 392 84 L. Ed 2d 289 (1985)
(Underlinings supplied for emphasis)
This ex cathedra authority, in an unmistakable terms, puts to rest the antithetical arguments of parties on the law that governs aviation matters. It makes it abundantly clear that the Montreal Convention exclusively regulates any actions that sprout from the aviation accidents. The Convention has monopoly on aviation matters. The Montreal Convention lords it over other laws in aviation matters. It is a jealous legislation that does not accommodate any other enactment, State or Federal, or common law in matters involving aviation mishaps. In essence, an injured passenger or personal representative/estate of a deceased passenger is not allowed to take umbrage under the sanctuary of any other statute, State or Federal, or common law in a bid to ventilate his grievances arising from the negligence or any other default occasioned by a carrier whether in the course of international or local carriage by air.
The contending parties cited lavishly foreign decisions to solidify their incompatible stands. The supplication impels me to invoke the doctrine of comparative jurisprudence, on ground of superfluity, by inviting foreign decisions on the knotty point. This judicial voyage is legitimate in the sense that Nigerian Courts are permitted to be persuaded by foreign decisions whilst interpreting identical statues, see A-G., Rivers State v. A-G., Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31 at 177. This is more so when such foreign/alien decisions will “be useful in the expansion of the frontier of our jurisprudence”, see Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1 at 22 per Tobi, USC.
It will be recalled that in Harka Air Serv- (Nig.) Ltd. v. Keazor (supra), the Supreme Court, per Adekeye, JSC, placed him premium on El Al Israel Airlines Ltd. v. Tseng (supra); Sidhu v. British Airways (supra); Air France v. Saks (supra) in holding and confirming that the Warsaw Convention is the exclusive legislation that caters for the rights and liabilities of passengers and carriers in carriage by air. Recently, the English Court of Appeal in Stott v. Thomas Cook Tour Operators Ltd./Hook v. British Airways Plc (supra); the United States Supreme Court in Schaefer-Conumari v. U.S. Airways GP Inc. (supra) and Fadliah v. Societe Air France (supra) and the Supreme Court of Canada in Thibodean v. Air Canada (supra) re-echoed the exclusivity principle in the Montreal Convention, id est, that it holds dominion over other domestic laws in aviation matters. The unanimous and universal decision on exclusivity principle in those authorities are later-in-time to that of Zicherman v. Korean Airlines Co. (supra) which the cross-respondent placed heavy reliance on his stance. Those other later-in-time authorities are in consonance with the decision of the apex Court in Harka Air Serv. (Nig.) Ltd v. Keazor case (supra) and, de jure, overshadow and drown the efficacy of the decision in Zicherman case in the applicable law in matters in aviation landscape.
Flowing from the foregoing, the lower Court’s declaration that the law donates to the cross-respondent the right to bring the action under the Fatal Accident Law of Lagos State and Administration of Estate Law of Lagos State has no imprimatur of the law. It will irritate the law for this Court to approbate the holding which has serious enmity with the law. I resolve the issue one in favour of the cross-appellants and against the cross respondent.
I proceed to handle issue two. The focus of the issue is plain and canalised within a narrow compass. It bemoans the lower Court’s finding that the judgment sum should be paid in the United States Dollars instead of the Nigerian Naira contrary to the provision of Article 23 of the Montreal Convention.
The fulcrum of this vexed issue revolves around the interpretation of the provision of Article 23 of the Montreal Convention. For easy appreciation, let me cull out the terse provision from its domain in the statute book. It states:
ARTICLE 23 CONVERSION OF MONETARY UNITS:
The sums mentioned in Articles 21 and 22 shall be converted to Naira at the existing official exchange rate.
In an avowed bid to deflate the potency of Article 21, the cross-appellant contrived a defence tucked away in Section 48 (3) of the NCAA which allows the carrier to make advance pay meat of at least US$30,000 to the aircraft accident victim or his representative.
In the first place, the draftsman/legislator of Article 23 of the Montreal Convention employed the word “shall”, an auxiliary verb, which, generally, in the mind of the law, denotes/implies compulsion/mandatoriness, see Okonkwo v. UBA Plc. (supra); Ugwuanyi v. NICON Ins. Plc. (2013) 11 NWLR (Pt. 1366) 546; Adeosun v. Gov., Ekiti State (2012) 4 NWLR (Pt. 1291) 581; Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Co. Ltd. (2014) 7 NWLR (Pt. 1405) 165; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 407; Agbiti v. Nigeria Navy (2011) 4 NWLR (Pt. 1236) 17.5; Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 502; BPS Constr. & Engr Co. Ltd v. F.C.D.A (2017) 10 NWLR (Pt. 1572); Adeniran v. Olusokun II (2019) 8 NWLR (Pt. 1673) 98. The import of that is obvious. The stipulation in the Article 23 is mandatory, not directory. The Court must willy-nilly kowtow to the decree of conversion of the judgment sums into the Naira currency as ordained in the provision. it is a sacrosanct provision that does not permit the discretion of the Court vis-a-vis its compliance.
I have matched the provision of Section 48 (3) of the NCAA with Article 23 of the Montreal Convention. To my mind, Section 48 (3) supra deals with advance payment which is anterior to the institution of any action against a carrier. Per contra, Article 23 supra contemplates institution of an action and procurement of judgment against a carrier. Thus, the streams of the two provisions flow in different canals without the possibility of a confluence point.
Besides, the provision of Section 48 (3) wears the colour of general provision whilst that of Article 23 displays the feature of a specific provision. In point of fact, the Article 23 rotates around the applicable currency in the implementation of judgment sums oozing out from the specific provisions of Articles 21 and 22 of the Montreal Convention. It is a notorious principle of law that where there is a special provision in a statute/legislation, a later general provision, in the same law, is not to be interpreted as derogating from what has been specially provided for individually save, an intention to do so is unambiguously declared. In the Latin days of the law, it was encapsulated in the Maxims: Generali specialibus non derogrant: general things do not derogate from special things; or Specilia generalibus derogrant- special things derogate from general one, see Schroder & Co. v. Major & Co. Ltd. (1989) 2 SCNJ 210/(1989) 2 NWLR (Pt. 101) 1; Tukur v. Govt., of Gongola State (supra)Abubakar v. Nasamu (No. 1) 2012) 17 NWLR (Pt. 1330) 40; Adebayo v. PDP (2013) 17 NWLR (pt. 1382) 1; A-G, Lagos State v. A-G. Fed. (2014) 1 NWLR (Pt. 1412) 217; Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 591; Jumbo United Co. Ltd. V. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439; PDP v. Umeh (2017) 12 NWLR (Pt. 1579) 272; A.G., Bauchi State v. A.G., Fed (2018) 17 NWLR (Pt. 1648) 299, Lokpobiri v. APC (2021) 3 NWLR (Pt. 1764) 538.
This cardinal principle of law, known for its antiquity, with due respect, demolishes and displaces the alluring argument of the cross-respondent and renders it a footnote. The provision of Article 23 of the Montreal Convention cannot bow to the superiority of Section 48 (3) of the NCAA on the footing of this ageless principle of law. The end result of this. In respect of sums of money mentioned under Articles 21 and 22 of the Montreal Convention, they must be converted to the Naira currency at the existing official exchange rate. Put the other way round, a claim or judgment sum in another currency must be converted to the Naira currency using the prevailing official exchange rate between that currency and Naira currency. I surmise that the intention of the legislator/maker, in drafting Article 23, is to ensure that the Nigerian Naira Currency, even though its value is highly eroded by the galloping inflation, does not go into extinction in the global economy. It seeks to infuse/breathe life into the Naira currency, halt/heal its depreciation and restore its wobbling value in the international market. It will be highly injudicious for a Court to disrespect, dethrone or curtail the unprecedented heavy statutory patronage of the Naira currency which, to all intents and purposes, exudes the potential to rejuvenate it (the Naira Currency) that has plunged into nosedive for over a decade now.
The import of the cross-respondent’s argument is that Dollar currency should be used in calculating sums in Articles 21 and 22 of the Montreal Convention. It is an elementary law that the primary duty/function of the Court/Judex is jus dicere, not jus dare, id est, to declare what the law is and not to formulate one, see Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367; Kraus Thompson Org. Ltd. v. N.LP.S.S. (2004) 17 NWLR (Pt. 901) 44); Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167; Coca-cola (Nig.) Ltd v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74. It will constitute a serious transgression of the rudimentary and traditional role of the Court to alter/amend the provision of Article 23 of the Montreal Convention by holding tenaciously to United States Dollars in sums relating to Articles 21 and 22 of the Montreal Convention. The law does not donate this Court the licence to indulge in such untoward and injudicious exercise which will smell of judicial legislation – a judgment wearing the garb, colouration or flavour of a statute. That will tantamount to an unjustifiable usurpation, trespass and invasion of the exclusive constitutional territory of the legislature. Such is not only antithetical to the raison d’etre for adjudication, but an amputation of the constitutional doctrine of separation of powers. I must decline such enticing supplication that has the potential to decimate the existential doctrine of separation of powers which is, firmly, entrenched in the Constitution – the fons et origo of our laws.
The lower Court, with due regard, was in grave error in its interpretation of Article 23 of the Montreal Convention. Its finding is impeachable and liable to the reserved penalty of vacation by this Court.
I resolve issue two in favour of the cross-appellant and against the cross-respondent.
Lastly, I will thrash out the tertiary issue in the trilogy issues. The mainstay of the issue is clear. It decries the lower Court’s award for pain, suffering, loss of companionship and affection which are contrary to Article 29 of the Montreal Convention.
An intimate reading of the issue, amply, discloses that it is a clone of the cross-appellants’ defence under issue two in the main appeal. I had, whilst considering the main appeal, treated the point in extenso. I arrived at the finding -that the claims were grantable without any annoyance to the provision of Article 29 of the Montreal Convention. There are no extenuating circumstances that will stimulate me to upset the solemn finding that, to my mind, in tandem with the law. To this end, it will smack of unnecessary surplusage and duplication of efforts to recycle the consideration of the issue. l, therefore, import my view points from the main appeal to this cross-appeal. I adopt my legal reasonings and conclusions in the main appeal vis-a-vis this issue. In consequence, I resolve issue three against the cross-appellants and in favour of the cross-respondent.
Overall, having resolved issues one and two in favour of the cross-appellants and issue three against them and vice versa, the fortune of the cross-appeal is not plain. The cross-appeal succeeds partially. Consequently, I allow the cross-appeal in part. Accordingly, the lower Court’s findings/holdings that the cross-respondent can bring the action under the Fatal Accident Law of Lagos State, 2003 and Administration of Estate Law of Lagos State, 2003 and that judgment sum should be paid in United States Dollars are hereby set aside. The parties shall bear the respective costs they incurred in the prosecution and defence of the partly successful cross-appeal.
MUHAMMAD IBRAHIM SIRAJO, J.C.A.: The composite judgment prepared by my learned brother, OBANDE FESTUS OGBUINYA, JCA, was made available to me in draft, before now. In the said judgment, my lord allowed the appeal in part and the cross-appeal in part for the respective reasons advanced in the body of the judgment. Having read the comprehensively rich judgment, I hereby express my alignment with the raison detre for the decision, with nothing useful to add. I also adopt the order in respect of costs.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have carefully perused the draft judgment delivered by my learned brother, His Lordship, HON. JUSTICE FESTUS OGBUINYA and I found out that His Lordship rightly resolved all the Issues. I am going to make some points on each of the issues raised.
The entire appeal was predicated on the question of damages recoverable by the appellant for damages occasioned by death of the appellant’s wife aboard the 1st respondent’s Aircraft.
An aircraft accident is an occurrence associated with the operation of an aircraft which takes place during the time any person embarks on the aircraft with the intention of flight until such or all persons have disembarked in which the person suffers a fatal or serious injury as a result of being aboard the aircraft.
There are laws regulating the liability of the airline to its passengers. An airline’s liability will arise as a right if:
1. An injury is sustained aboard an aircraft or
2. Death arises from the course of the journey.
3. There is damage or loss of goods
4. There is damage or loss of baggage
5. Delayed flights or denied boarding
6. Interactions in the course of preparing for or during the actual conduct of a flight.
To establish liability of an airline for death or injury under the Montreal Convention, the Claimant has to prove that:
(a) The Passenger died or suffered physical injury.
(b) The death or physical injury was a result of an accident.
(c) The accident must have occurred on board the aircraft or during the cause of embarking or disembarking.
These three conditions must coexist for the Claimant to establish liability of an air carrier.
In this instant case, the 1st respondent operated a McDonnell Douglas MD 83 Aircraft with Registration Number 5N – RAM and flight number 9J – 992 en route Abuja to Lagos. On its approach to Lagos, the aircraft crashed into a residential area leaving 153 people including the Appellant’s wife dead. The evidence before the trial Court was that the appellant’s deceased wife was aboard the ill- fated aircraft. Furthermore, Medical Report tendered before the trial Court showed that the deceased suffered bodily injuries as a result of the impact of the crash and the subsequent post-crash fire. The injuries she suffered resulted to her death.
Thus, the appellant has proven that the 1st respondent is liable to the appellant under the Montreal Convention for the death of the appellant’s wife aboard its aircraft.
Therefore, since the appellant has been able to prove that the 1st respondent is liable under the Montreal Convention, damages will follow. By the interpretation of Article 17 of the Montreal Convention and Article 21 (1) of the Montreal Convention, the 1st respondent is strictly liable to pay the appellant, a minimum sum of $100,000 (One Hundred Thousand Dollars) as provided under the Montreal Convention and Section 48 of the Civil Aviation Act 2006.
However, the Provisions of Article 21 (2) of the Montreal Convention provides an exception to the Strict Liability rule.
According to the provisions of Article 21, the liability of the carrier will exceed $100,000 (One Hundred Thousand Dollars) unless the carrier is able to prove that the accident was not as a result of its own negligence or of omission of its employees or caused by the negligent act of any third party. It is called ‘Reverse Burden of Proof’. Reverse Burden of Proof entails that the Burden. of Proof is shifted to the Defendant to disprove an act or omission. Reference is made to the cases of BUHARI VS INEC & ORS (2008) LPELR-814(SC); NWODO VS STATE (2018) LPELR-46335(SC) IROAGBARA VS UFOMADU (2009) LPELR- 1538(SC)
In respect of aviation claims, the Reverse Burden of Proof is on the carrier to disprove the Presumption that damage suffered by an air passenger aboard its aircraft while in flight occurred as a result of its own negligence or the negligence or omission of its Employees or Agents, or it could prove that the damage suffered by an air passenger aboard its aircraft, occurred as a result of the negligence or omission of a Third Party.
The trial Judge was in error to have misconstrued the provisions of the Montreal Convention by holding that the trial Court cannot award more than the sum of $100,000 (One Hundred Thousand Dollars) no matter the quantum of damages proven. Furthermore, the trial Court was also in error to have held that the Appellant failed to prove that death was due to the negligence of the respondents. Consequently, Issue 1 is resolved in favour of the appellant and against the respondent.
On Issue 2
Damages can simply be described as a monetary compensation that is awarded by a Court in a Civil Action to an individual who has been injured through the wrongful conduct of another Party. Reference is made to cases of SHELL PETROLEUM DEVELOPMENT CO NIG LTD VS TIEBO VII (1996) 4 NWLR (PART 445) 657; UMUDJE VS SHELL PET DEV CO OF NIG (1975) 9-11 SC 155.
Damages could either be special or general. In the case of special damages, the claim must be specifically pleaded and proved.
General damages on the other hand are the kind of damages which the law presumes to flow from the wrong complained of. They are such as the Court will award in the circumstances of a case, in the absence of any yardstick with which to assess the award, except by presuming the ordinary expectations of a reasonable man, and the claimant need not specifically prove any facts in support. Further reference is made to AMAYE VS ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD & ORS (1990) LPELR-3511(SC); LAR VS STIRLING ASTALDI LTD (1977) 11/12 SC 53; OMONUWA VS WAHABI (1976) 4 SC 3.
General damages are usually awarded to assuage such loss which flows naturally from the Defendant’s act. It needs not be specifically pleaded. It arises from the inference of law and need not be proved by evidence. It suffices if it is generally averred. They are presumed to be the direct consequence of the act complained of. Compensatory damages also fall under the purview of general damages as they are damages recoverable for actual injury or economic loss suffered as a result of the act of the Defendant. See BRITISH AIRWAYS VS ATOYEBI (2014) LPELR-23120(SC); MEKWUNYE VS EMIRATES AIRLINES (2019) LPELR-46553(SC).
From the foregoing, it is clear by Article 29 of the Montreal Convention that a Claimant cannot make a claim for punitive, exemplary or other non-compensatory damages.
In this instant case, the appellant’s claim, which are clearly under the category of general damages are within the purview or contemplation of Article 29 of the Montreal Convention.
As regards the Appellant’s contention that the lower Court awarded paltry sums of money as damage, the provisions of Article 21 of the Montreal Convention, disentitles an airline to limit its liability when damage is caused by its direct negligence or omission, or by the negligence or omission of its agent acting within the scope of his employment. Since the respondents failed to disprove the fact of negligence alleged against them, the Appellant is entitled to claim general damages above the stipulated sum of $100,000.
Consequently, the Court is entitled to exercise its discretion to award general damages. See OKOKO VS DAKOLO (2006) LPELR-2461(SC); HAMZA VS KURE (2010) LPELR-1351(SC); OANDO NIGERIA PLC VS ADIJERE WEST AFRICA LTD (2013) LPELR-20591(SC)
Now, it is settled that an appellate Court is at liberty to interfere with the award of damages made by a trial Court.
In HARKA AIR SERVICES VS KEAZOR (SUPRA), the Supreme Court went on to state as follows:
“…the award of damages is essentially the duty of a trial Court and will not be interfered with except unless certain circumstances exist:- a) Where the trial Court acted under a misapprehension of facts or law b) where it failed to take into account relevant matters c) Where the amount awarded is too low or too high, and d) where failure to interfere would amount to injustice.”
It is pertinent to note that this instant suit is a combination of Contract and Tort. The trial Court acted under the misapprehension of the provisions of the Montreal Convention in awarding damages in favour of the appellant, thereby occasioning a miscarriage of justice. It ignored the competing rights of the Parties. In addition, the damages awarded are not in compliance with the provisions of Article 17 and 21 of the Montreal Convention, and this Court is empowered to interfere in the award of damages in favour of the appellant. Therefore, Issue 2 is resolved in favour of the appellant and against the respondents.
On Issue 3 and 4, the grouse of the appellant against the decision of the trial Court is that the trial Court held that the claims were speculative.
A suit is speculative if it is not supported by facts or if it is very low on facts but very high on guesses. Courts are duty bound not to make decisions based on speculations but on facts and Evidence before them. See SALIK VS IDRIS & ORS (2014) LPELR-22909(SC); AWOLOLA VS GOVERNOR OF EKITI STATE & ORS (2018) LPELR-46346(SC); ADEGBITE VS STATE (2017) LPELR-42585(SC); MARTINS VS STATE (2019) LPELR- 48889(SC).
An examination of the Appellant’s flurry of Reliefs which the trial Court held as being speculative, will show that they are indeed speculative. The claims are at best futuristic and failed to take into cognizance the uncertainties that may occur. The Courts are not allowed to give decisions based on speculations and conjectures.
Therefore, for the above reasons, I abide by the decision of His Lordship in allowing the appeal in part. Accordingly, I set aside the awards of $20,000, $30,000 and $10,000 for pain and suffering, loss of companionship and affection by the appellant, the deceased’s daughter respectively. I also abide by his decision as regards the damages awarded and as it relates to the cost of the action.
Cross-Appeal
The cross-appellant contended that a suit in an aviation matter is solely governed by the Civil Aviation Act, while the cross-respondent held the view that once there is a conflict between Domestic Law and the Montreal Convention, the Montreal Convention will prevail, or in certain circumstances, the domestic law will operate alongside it.
It is settled that where Domestic Law/Common Law has been enacted into a Statute, it is the statutory provision that must be considered for such right to be established. In this case, it is Section 48 of the Civil Aviation Act that will govern the liability of airlines as regards right to damages. The claims must be subjected to the conditions of the Montreal Convention. Furthermore, the provisions of Section 48 (2) of the Civil Aviation Act are also applicable to domestic flights. See HARKA AIR SERVICES (NIG) LTD VS KEAZOR (2011) LPELR-1353 SC, IBIDAPO VS LUFTHANSA AIRLINES (1997) LPELR SC; BRITISH AIRWAYS VS ATOYEBI (2014) LPELR-23120 SC; SOUTH AFRICAN AIRWAYS VS OBI (2013) LPELR-40642 (CA).
It can be concluded therefore that claims arising from carriage of passengers by air are largely governed by the Civil Aviation Act and the Montreal Convention. An injured passenger or a representative/estate of a deceased passenger is not allowed to commence an aviation claim under any other Statutes or Common Law. The English Court in SILVERMAN VS RYANAIR DAC [2021] EWHC 2955 QB echoed the principle that the Montreal Convention governs aviation claims. Consequently, the trial Court was in error to have held that the cross-respondent was right to bring the action under the Fatal Accident Law of Lagos State and the Administration of Estate Law of Lagos State, Therefore, Issue 1 is resolved in favour of the cross-appellants and against the cross-respondent.
On Issue 2 and 3, I also abide by the findings of his Lordship on their Resolutions.
In conclusion, I abide with the findings of my learned brother allowing the cross-appeal to succeed in part. Consequently, the trial Court’s findings that the cross-respondent can bring the action under the Fatal Accident Law of Lagos State 2003 and Administration of Estate Law of Lagos State, 2003 as well as his finding that the judgment sum should be paid in Dollars are hereby set aside by me.
Appearances:
Dr. B.A.M. Ajibade, SAN, F. A. Dailey, SAN, with him, P.O. Olalere, Esq. For Appellant(s)
Taiwo Kola-Balogun, Esq., with him, I.S. Ahmad, Esq. For Respondent(s)
