MISS PROMISE MEKWUNYE VS EMIRATE AIRLINES (2019)

MISS PROMISE MEKWUNYE VS EMIRATE AIRLINES

(2019) LCN/4629(SC)

In the Supreme Court of Nigeria

Thursday, January 31, 2019


Case Number: SC .488/2014

General Damages- Whether General Damages need to be specifically proven

For the Appellant it is further submitted, and I agree, that compensatory damages and general damages are the same. They are damages recoverable as payment for actual injury or economic loss. They do not include punitive or exemplary damages. In British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253 this Court held that general damages are compensatory damages. At page 286 of the Report Kekere-Ekun, JSC states it clearly – General damages, such as the law presumes to be the natural and probable consequences of the Defendant’s act, need not be specifically pleaded. It arises by reference of law and need not therefore be strictly proved by evidence and may be availed generally.”

General Damages- Meaning of General Damages

“In the earlier decision of this Court, in UBN PLC v. Ajabule (2011) LPELR – 8239, per Fabiyi, JSC, stating that general damages are compensatory damages, states poignantly: Generally damages are said to be damages that the law presumes and they 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 that not be alleged or proved. They need not be specifically claimed. They are also termed damages; necessary damages. See also Odiba v. Adzege (1998) 9 NWLR (Pt. 566) 370, Wahabi v. Omonuwa (1976) LPELR – 3469 (SC)”

Exemplary Damages- What amounts to exemplary damages?

“On what amounts to punitive or exemplary damages, this was dealt with by the court in the case of Odiba v Azege (1998) LPELR-2215 (SC) at Page 25, thus: “Exemplary damages, in particular, also known as punitive or vindictive damages can apply only where the conduct of the defendant merits punishment, and this may be considered to be so where such conduct is wanton, as where it discloses fraud, malice, cruelty, insolence or the like, or where he acts in contumelious disregard of the plaintiff’s rights. But exemplary damages, to some extent, are distinct from aggravated damages whereby the motives and conduct of the defendant aggravating the injury to the plaintiff would be taken into consideration in the assessment of compensatory damages”. Per Iguh JSC.

Courts- Duty of courts to do justice.

“It is therefore in the maintenance of the spirit of justice that the court functions to do justice between parties to a dispute as anything short of that defeats that spirit of the law and constitution and so every wrong not the fault of a party should not be visited on the innocent party in whatever guise as the innocent victim must be atoned”. See Ugba v Suswan (2014) 14 NWLR (Pt.1427) 264 at 341; Engineering Enterprises v A. G. Kaduna State (1987) 2 NWLR (Pt. 57) 381 at 419.

 

JUSTICES:

KUMAI BAYANG AKAAHS

MARY UKAEGO PETER-ODILI

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

AMIRU SANUSI

EJEMBI EKO

 

APPELLANTS

MISS PROMISE MEKWUNYE

 

RESPONDENTS

EMIRATES AIRLINES

 

 

(DELIVERED BY EJEMBI EKO, JSC)
Seven (7) months before her travel dates the Appellant, through Mr. Clement Dolor an officer/employee of the Respondent at the Respondent’s office in Victoria Island, Lagos, bought the Respondent’s airline return ticket (electronic) for $2,067 USD to enable her travel from Dallas – Houston – Dubai – Lagos and back. The ticket, through Clement Dolor, was confirmed more than three (3) times before the Appellant’s travel date on 17th December, 2007. The Appellant, a student of the North Texas University, Denton, Texas USA, came to the Dallas airport on the said 17th December, 2007 to commence her travel to Nigeria whereat she presented the flight ticket for issuance of boarding pass. She was denied boarding, and no reason was given to her; notwithstanding that her ticket, Exhibit PM.2, was three times confirmed with clear inscription thereon “17 Dec OK”. She was merely told that the ticket had been cancelled. She was, previously, not communicated of this fact/development. The Respondent made no alternative travel plans for her. The Appellant, greatly embarrassed, was constrained to stay over without accommodation offered by the Respondent. She had also, through her father, to buy another electronic ticket from American Airlines on 18th December, 2007 for the sum of $3,200.00 to enable her travel on 19th December, 2007 through a longer route: Dallas -Forthworth – London Gatwick – Dubai – Lagos and back. The longer route took stressful 48 hours to complete.
On these facts, the Appellant’s attorney wrote, on 4th January, 2008, Exhibit PM.5, wherein she demanded refund of moneys paid for the two tickets. The Appellant, at all material times, communicated the Respondent through their said desk officer/employee, Clement Dolor. The Appellant handed to the Respondent, through the said Clement Dolor, the tickets for refund. By 25th January, 2008 it came to the Appellant’s knowledge that Clement Dolor had left the services of the Respondent and was operating his personal travel agency, Simba Travel & Tours. The Respondent through the said Simba Travel and Tours, as it is apparent that Clement Dolor was dealing with the Respondent through the said Simba Travel and
Tours, unilaterally paid the sum of $1,777.00 USD purporting to be the refund of their (Respondent’s) own ticket. It withheld the ticket of the American Airline and made no effort to refund the money paid to purchase that ticket. Appellant’s attorney rejected the sum of $1,777 USD alleged to be the refund of the Respondent’s own ticket. Clement Dolor, PW.2, on behalf of Simba Travel & Tours collected the sum of $1,777 USD from the Respondent. When the Appellant’s attorney rejected the said sum of $1,777 USD, he directed the PW.2 to return it to the Respondent. The Respondent also refused to take the said sum of money from the PW.2.

At the suit of the Appellant the Federal High Court, in its judgment delivered on 15th November, 2010, found that the Respondent’s “refusal to carry the (Appellant) from Dallas on the 17th December, 2007 amounts to a breach of contract of carriage with (her),” and that “No limitation to liability applies here”. Consequently, the trial Court ordered “the ticket refund to the (Appellant) should be in full without any deduction or charge,” and a “further grant of U2.S million in general damages and N250,000.00 in legal costs” to the Appellant. Against these judgment and orders therein the Respondent lodged its appeal, as right, to the lower Court on seven (7) grounds of appeal.
Ground 4, out of the said 7 grounds of appeal at the lower Court is a complaint that “the learned trial Judge erred in law when he awarded N250,000.00 in legal fees when the Plaintiff claimed N1,000,000.00 but led no evidence”. The Respondent, as the appellant at the lower Court, raised issue 4 for the determination of the appeal by the lower Court from the said ground 4 of the grounds of appeal in the Notice of Appeal. The lower Court resolved the said issue 4 before it in favour of Respondent holding inter alia, at page 468 of the Record that –
The learned trial Judge consequently erred in granting the sum of N250,000.00 legal costs. Having arrived at the conclusion that the award is for legal costs and not costs simpliciter, leave of Court was unnecessary.
This is the basis of grounds 4 & 5 in the instant appeal before us. Issues 4 & 5 in this further appeal are –
4.Whether the sum of N250,000.00 awarded by the lower trial Court as costs for the suit amounts to special damages and thus requires that there must strict proof of same? (Ground Four).
5.Whether the Court of Appeal has jurisdiction to have considered the issue raised by the Respondent herein to writ -appealing on ground of costs filed without leave of Court? (Ground Five).
I observe, from page 260 of the Record that the trial Court awarded “N250,000.00 in legal costs”. That amount of N250,000.00 was not awarded “in legal fees” as the Respondent’s ground 4 misrepresented to the lower Court. It is trite that the Appellant is not permitted to create a bogus decision, by the distortion of the decision appealed, in order to found or plead his ground of appeal. This point was put beyond doubt by the Court of Appeal in MINIIBIR & ANOR. v. MINJIBIR & ORS. (2008) LPELR – 4486 (CA) – that –
It is settled that a ground of appeal must not only connect with and relate to the decision appealed against, it must also be relevant. Thus any complaint that does not relate to the ruling or judgment appealed against is irrelevant and therefore incompetent. This is moreso, because an unrelated and irrelevant ground of appeal cannot challenge a non-existent decision. What is more, an Appellant’s right of appeal is confined within the decision appealed against. If the judgment says one thing and the ground and issue state another that would be a perfect scenario of talking at cross purposes.
My learned brother, K. M. O. Kekere-Ekun, JCA (as she then was) cited with approval this trite principle, that a ground of appeal raised against a phantom or a non-existent decision is incompetent, in HON. OLEMIJA STEPHEN FRIDAY & ORS. v. THE GOVERNOR OF ONDO STATE & ANOR. (2012) LPELR – 7886 (CA). I need only add that an appeal against a phantom or non-existent decision is an abuse of the Court’s process: R-BENKAY LTD. v. CADBURY NIG. LTD (2012) LPELR – 7820 (SC).
I concede to the lower Court one fact: the point was not brought to their attention. And it eluded them.
The complaint in issue 5 in the instant appeal is that, by virtue of Section 241(2)(C) of the 1999 Constitution, as amended, without leave of Court Respondent’s ground 4 at the lower Court complaining that the trial Court erred in law in awarding costs of N250,000.00 was incompetent. The said Section 241(2)(C) of the Constitution provides –
241(2) Nothing in this Section shall confer any right of appeal –
(C) without leave of the Federal High Court – or of the Court of Appeal from a decision of the Federal High Court – as to costs only.
The Respondent, in his contention, submits “that the award of N250,000.00 granted as legal costs by the trial Court was not an award of costs but damages”, and that from the “the nature of the decision of the trial Court” it was “an award of damages which does not fall within the purview of the provisions of S.241(2)(C) of the 1999 Constitution -“. Respondent further submits that from the phraseology of Section 241(2)(C) of the Constitution, since ground 4 is one of the several grounds of appeal the appeal was not merely “as to costs only”. Attractive or seductive as this argument may appear to be it does not distinguish the facts of this case from the decision of this Court in ADEWUNMI v. OKETADE (2010) 8 NWLR (Pt. 119563 (SC), citing with approval the previous decisions in UNIFAM INDUSTRIES LTD. v. OCEANIC BANK INTERNATIONAL (NIG.) LTD (2005) 3 NWLR (Pt. 911) 83 at 92 and ASIM (NIG.) LTD. v. LOWER BENUE RIVER BASIN DEVELOPMENT AUTHORITY (2002) 8 NWLR (Pt. 769) 349, that it is trite that appeal does not lie as of right against an award of costs by a Court. The order made at page 260 of the Record by the trial Court is not an award of damages but clearly an order for costs assessed at N250,000.00 in favour of the Plaintiff, now the Appellant.

I am the least convinced that the very persuasive decision of the Court of Appeal in A.C.B. v. OKOWNKWO (1979) 1 NWLR (Pt. 480) 194 which applied the provisions of Section 220(2)(C) of the 1979 Constitution, in pari materia with Section 241(2)(C) of the extant 1999 Constitution, is not apposite. Section 241(2)(C) of the Constitution does not intend to confer right of appeal, as of right, on the Appellant complaining about costs in an appeal from the High Court to the Court of Appeal. I completely endorse the statement of law on this by Ejiwunmi, JCA (as he then was) in A.C.B. v. OKONKWO (supra), to wit –
A party cannot appeal on failure of the High Court to award costs without first obtaining the leave of either the Court of Appeal or of the High Court. This is the requirement of Section 220(2)(C) of the 1979 Constitution. In this case, since the 1st Respondent did not obtain leave, the ground of appeal in the cross-appeal complaining against costs ought to be struck out and the issue formulated from it becomes a non-issue.
Accordingly, I agree with the Appellant that the Respondent’s complaint in ground 4 of the Grounds of Appeal at the lower Court, from which the Respondent as the appellant at the lower Court formulated its issue 4, is incompetent having been raised without leave either of the trial High Court or the lower Court. This Court has been consistent on this point as can be seen from GOVERNOR, EASTERN NIGERIA v. ONYELU (1965) ALL NLR 690. The Court of Appeal followed the decisions in UNIFAM IND. LTD. v. OCEANIC BANK (supra); ASIM NIG. LTD. v. LBRDA (supra); ONUIGBO v. NWEKESAN (1993) 3 NWLR (Pt. 283) 533 at 546. I will not depart from these precedents, at least on the doctrine of stare decis. I resolve issue in favour of the Appellant.
The resolution of issue 5 in favour of the Appellant means that the lower Court lacked jurisdiction to entertain the complaint against the award of N250,000.00 as costs. It follows naturally that the question: whether the justices of the Court of Appeal were right to have set aside the sum of N250,000.00 awarded by the trial Court as costs, attracts the answer that the lower Court was not right in setting aside that award: since in the first place it acted ultra vires Section 241(2)(C) of the Constitution. The defect in the competence of the lower Court to entertain that issue is fatal and it renders the proceedings and order on that issue a nullity, no matter how well it may have been well conducted and decided: MADUKOLU v. NKEMDILIM (1962) LPELR – 24023 (SC). In the circumstance, it becomes academic to attempt any discourse now on whether the trial Federal High Court correctly applied the principles for award of costs as stipulated in Order 25 Rules 2 and 7, Federal High Court (Civil Procedure) Rules, 2009.
Issue 4 follows issue 5. Both issues are resolved for the Appellant against the Respondent.
The trial Court, in addition to its ordering ticket refund to the Appellant in full, without any deduction or charge, also ordered general damages put at N2.5 Million to be paid to the Appellant. The lower Court, at pages 466 – 467 of the Record, observed that –
after awarding the (Plaintiff/Appellant) the refund of the amount used in purchasing a ticket to enable her return to Nigeria as planned, the award of additional (42.5m damages is double compensation. More importantly, it is clearly contrary to the provision in the Montreal Convention which placed a limit to what is claimable except where negligence or wilful misconduct is established as in CAMEROON AIRLINES v. OTUTUIZU (2011) 8 WRN 1: (2011) 4 N.W.LR. (Pt.1238) 512.
The complaint under issue 1 settled by the Appellant is: whether the award of N2.5 Million as general damages for breach of contract by the trial Court against the Respondent qualifies and or amounts to a non-compensatory damages contrary to the provisions of the Montreal Convention and the terms of contract between the parties? And in issue 3 the question is: whether the award of N2.5 Million as general
damages in addition to the refund of the tickets amounts to double compensation?

The Respondent seems, in my view, to concede that under the Montreal Convention “compensatory damages may include special and general damages”. It, however, argues that “in aviation claims, as in the law governing the award of damages awardable in breach of contract cases, there is no distinction between special and general damage” and that “any claim for damages must be subsumed in and is circumscribed by the provisions of the statute as provided by Arts 22 and 29 of the Montreal Convention”. The Appellant and the Respondent, on this, appear not too distant apart except for semantics. Appellant’s counsel in paragraph 4.1.9 of the Appellant’s Brief submits-
that Article 29 of the Montreal Convention does not prohibit the grant of general damages but punitive, exemplary or non-compensatory.

For the Appellant it is further submitted, and I agree, that compensatory damages and general damages are the same. They are damages recoverable as payment for actual injury or economic loss. They do not include punitive or exemplary damages. In BRITISH AIRWAYS v. ATOYEBI (2014) 13 NWLR (Pt. 1424) 253 this Court held that general damages are compensatory damages. At page 286 of the Report Kekere-Ekun, JSC states it clearly –
General damages, such as the law presumes to be the natural and probable consequences of the Defendant’s act, need not be specifically pleaded. It arises by reference of law and need not therefore be strictly proved by evidence and may be availed generally.
In the earlier decision of this Court, in UBN PLC v. AJABULE (2011) LPELR – 8239, per Fabiyi, JSC, stating that general damages are compensatory damages, states poignantly:
Generally, damages are said to be damages that the law presumes and they 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 that not be alleged or proved. They need not be specifically claimed. They are also termed damages; necessary damages.
See also ODIBA v. ADZEGE (1998) 9 NWLR (Pt. 566) 370, WAHABI v. OMONUWA (1976) LPELR – 3469 (SC).
In the instant case the Appellant had bought the Respondent’s flight ticket and had, between the date ticket was purchased and the scheduled flight date, three times gotten the Respondent to confirm the ticket and the flight schedule. Exhibit PM.2 attests to this. However, on the flight date and not-withstanding Exhibit PM.2, the Appellant was denied boarding involuntarily and for no reason at all, except only (much later) that the ticket had been cancelled. She was embarrassed and stressfully inconvenienced for two days by the Respondent’s reckless breach of contract. The Respondent provided neither alternative arrangement nor accommodation and feeding. The Appellant was put to extra expenditure of having to buy another ticket more expensive and for longer route. For all the stress, inconvenience and embarrassment caused the Appellant by the Respondent the trial awarded general damages in the sum of N2,500,000.00. It also ordered refund of the tickets. The Lower Court, however, denied the Appellant the general damages holding that ordering the Respondent to pay general damages in addition to the ticket refund amounted to double compensation for the breach of contract by the Respondent.
The facts of BRITISH AIRWAYS v. ATOYEBI (supra) the Lower Court relied on to hold that the award of the sum of N2.5million as general damages, in addition to the tickets refund, amounted to double compensation are clearly distinguished from the facts of this case. The ATOYEBI case was about loss or delayed delivery of checked-in baggage, which Appellant carrier, after finding it, insisted that the Plaintiff/Respondent, who was resident in Lagos, must personally collect it from their London Office. The Plaintiff, Mr. Atoyebi, had to travel to London on First Class ticket to collect his lost and found baggage. The parties were ad idem that the provisions of the Warsaw Convention 1929, domesticated in Nigeria by the Air (Colonies, Protectorates and Trust Territories) Order, 1953 (CAO) contained in Vol. II, 1958 LFN applied. The effect of Articles 19, 22, 24 and 25 of CAO is that “the liability of the carrier” for loss of baggage is limited statutorily. Article 24 (1) of CAO specifically provides:
In cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.
Article 22 of CAO sets the rates payable as the carrier’s liability for loss of registered luggage etc. Article 19 of CAO then provides –
19. The carrier is liable for damage occasioned by delay in carriage by air passengers, luggage and goods.

In the peculiar circumstances of the ATOYEBI case the passenger was held not entitled, in view of the provisions of the CAO, to compensation for delayed delivery of his registered luggage and at the same time general damages for the same delay. Significantly, Kekere-Ekun, JSC, emphasised that a person who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another head. Such, it was held, would amount to double compensation. With all deference to the Lower Court ATOYEBI case lays down no general principle to the effect that a party whose conduct results in the other suffering not only special damages, but also general damages cannot be awarded both where the circumstances demand. Accordingly, I am of the firm view that the Respondent’s flagrant breach of contract whereby it unreasonably denied boarding to a confirmed passenger for no good cause, previous notice and without explanation whereby the passenger, as the Appellant herein, was not only put to extra expenditure of having to buy a more expensive ticket for a longer route, but also to endure the embarrassment, stress and inconvenience for two days of being stranded clearly entitles the passenger to both general damages and the ticket refund.
I have read KAYDEE VENTURES LTD v. HON. MINISTER FCT (2010) 7 NWLR (Pt. 1192) 171; (2010) LPELR – 1681 (SC) cited by the Appellant to the effect that where a breach of contract is of a fundamental nature, such as the one on appeal, the Plaintiff, who suffered as a result, deserves to go home fully compensated. Though in the KAYDEE VENTURES case there was no award of special damages, and no issue of double compensation arose therein; however, there was in that case like the instant, a case of flagrant or reckless breach of contract. In the instant case, the Appellant, as the Plaintiff, paid for flight ticket. She was denied boarding even after confirming the flight three times (Exhibit PM.2). In consequence thereof she was stranded for two days without explanation, apologies and alternative arrangement, and was constrained to pay for a longer route on a more expensive ticket. It would therefore in my view be unfair and unjust for the Respondent, as the carrier, to merely refund the flight ticket without compensatory or general damages for the loss of time, stress, embarrassment and inconvenience she suffered in consequence of the breach of contract by the Respondent. Award of damages for breach of contract is based on resitutio in integrum. That is: in so far as the damages are not too remote, the Plaintiff should be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred: GABRIEL ATIVIE v. KABELMETEL NIG. LTD (2008) 10 NWLR (Pt. 1095) 399 (SC). Damages which are natural and probable consequences of breach of contract are awardable as general damages: MOBIL OIL (NIG.) LTD v. AKINFOSILE (1969) 1 NMLR 227; XTOUDOS SERVICES NIG. LTD & ANOR v. TAISEL (W.A) LTD & ANOR (2006) LPELR – 3504 (SC).
I hold therefore that the trial Court was right in ordering the Respondent, as the Defendant, to pay in the circumstances N2.5Million as general damages in addition to the ticket refund. Issues 1 & 3 are accordingly resolved in favour of the Appellant.
The question under Appellant’s issue 2 is actually whether the limitation of liability under the Montreal Convention, 1999 domesticated by Section 48 of the Civil Aviation Act, 2006, is applicable to the instant case where notwithstanding the fact that the Respondent had three times, at the instance of the
Appellant, confirmed the Appellant’s ticket and flight as scheduled, it nonetheless denied the Appellant boarding on the flight date for no reason or explanation at all. The Appellant submits that denial of boarding without just cause smacks of both wilful misconduct and a breach fundamental term of contract. There could not have been a better case of misconduct and a breach of fundamental term of contract than this case.
Lord Reid’s dictum on breach of fundamental term of contract, in SUISSE ATLANTIQUE SOCIETE D’ARMEMENT MARITIME, SA v. N.V ROTTERDAMSETTE (1967) 1 AC 361 remains evergreen and very apposite to this case. The learned jurist stated on the consequence of breach of fundamental term of contract thus –
a well-known type of breach which entitles the innocent party to treat it as repudiatory and rescind the contract.
Edozie, JSC, in INTERNATIONAL MESSENGERS (NIG) LTD v. PEGOFOR IND. LTD (2005) 15 NWLR (Pt. 947) 1, cited with approval this SUISSE ATLANTIQUE CASE.
I have no doubt the Respondent repudiated their contract with the Appellant. It is submitted for the Respondent that the denial of boarding was provided for and in contemplation of the parties by virtue of the exception clause in Article 9.3.1 of the Emirates Condition of Carriage, 2006 that provides:
If we cannot carry you in your ticketed class of service on a flight for which you have a confirmed reservation and have met all applicable check-in and boarding deadlines, we will carry you on one of our latter flights in your ticketed class of service, or if you choose, we will carry you on another class of service and will refund you the deference between the applicable fare, taxes fees, charges and surcharges paid for your ticketed class of service – alternatively you may choose to receive an involuntary refund in accordance with Article 10.2 –
From the peculiar facts of this case the Article 9.3.1 of Emirates Conditions of Carriage, 2006, cannot and does not avail the Respondent for denying boarding to the Appellant for no just cause and no explanation whatsoever. In spite of the fact that the Respondent for three times had confirmed the Appellant’s reservation she was denied boarding on the confirmed flight date. No other flight arrangement or carriage was offered to her. The Respondent’s conduct tantamount to complete repudiation of the contract it had with the Appellant.
I agree with the Appellant that the Respondent’s repudiation of its contract with the Appellant by the breach of the fundamental term of the contract does not entitle it to plead the Montreal Convention (particularly Articles 17 – 22 thereof). On whether Articles 17 – 22 of the Montreal Convention avail an airline in breach of its fundamental term of contract with the passenger, this Court re-stated the principle clearly in CAMEROON AIRLINES v. OTUTUIZU (supra) thus –
The Articles have nothing to do with the liability of an airline in the event of breach of a contract to transport its customer to a given location. The legislations relied upon by the Appellant have neither provided defence nor set limit to the amount of damages recoverable in the event of the Plaintiffs success in establishing that the Defendant had failed to transport him by air to an agreed destination.
(Emphasis supplied)
It is settled from a number of decisions that a party in breach of a fundamental term of his contract with a third party will not be allowed to benefit from or resort to exclusion clauses: PINNOCK BROTHERS v. LEWIS & PEAT LTD (1956) 2 ALL E.R. 866; ADEL BOSHALLI v. ALLIED COMMERCIAL EXPORTERS LTD (1961) ALL NLR 917 at 922; OWNERS NV GONGOLA HOPE v. S.C. (NIG). LTD. The rationale for the principle is that a party who is guilty of breach of a fundamental term of contract could/should not benefit from his own wrong doing by resorting to exclusionary clauses in order to limit his liability. This is moreso, when a contract of carriage by air is brazenly breached and no explanation is offered, as in the instant case. In which case there is a total failure of consideration and the central purpose or essence of the contract has wholly disappeared. In such a situation, as Okey Achike JSC explained in his book: NIGERIAN LAW OF CONTRACT, at page 107, under the doctrine of fundamental term, the party guilty of breach of a fundamental term will not be availed clauses excluding his liabilities.
No court of justice will aid the party in the wrong to escape his liability for his wrong doing. Tabai, JSC puts it thus in TERIBA v. ADEYEMO (2010) 11 NWLR (Pt. 1211) 242 at 263:
In its adjudication functions, the Court has a duty to prevent injustice in any given circumstance and avoid rendering a decision which enables a party to escape from his obligation under a contract by his own wrongful act or otherwise profit from his own wrongful act.

See also ENGINEERING ENTERPRISES v. A.G, KADUNA STATE (1987) 2 NWLR (Pt. 57) 381 at 419: UGBA v. SUSWAN (2014) 14 NWLR (Pt. 1427) 264 (SC) at 341; HARKA AIR SERVICE (NIG) LTD v. KEAZOR (2011) LPELR – 1353 (SC); CAMEROON AIRLINES v. OTUTIZU (supra).
The Respondent has not shown good cause for me to resolve this issue 2 in their favour. On the other hand, the Appellant has shown good cause why I should resolve the issue in their favour. Accordingly issue 2 is resolved in favour of the Appellant.
The Lower Court, upon finding that the Respondent had refunded the Emirate Airlines ticket less certain deductions to Dement Dolor who applied for the refund on behalf of Simba Travel and Tours, held that the Respondent was liable to pay back to the Appellant the $3,200 USD less the amount already paid to Clement Dolor. The issue arising from the finding/holding is whether Clement Dolor in applying, on behalf of Simba Travel & Tours/for the ticket refund to the Appellant was the Appellant’s agent. The contention of the Appellant is that Clement Dolor was not authorised to collect the money on her behalf. The Lower Court found as a fact, and held so, that Clement Dolor acted as the Appellant’s agent and that he had the authority of the Appellant to collect the money. She premised her contention on the fact that Clement Dolor had, at some material times, been an employee of the Respondent (at least at the time the Appellant bought the ticket). The fact is not in dispute that the time the Appellant bought her ticket up to the time the Appellant was denied boarding the Clement Dolor was an employee of the Respondent as a desk officer in their Victoria Island office. Thereafter he resigned.

Existence of the authority to act an agent is one of facts. The authority could be express or implied. Certain facts can reasonably lead to the inference that a person had the authority, as an agent, to act for the principal. The fact, extracted from Clement Dolor, PW.1, under cross-examination at page 189 of the Record, is very material and germane for the inference that Clement Dolor, PW.1, had authority of the Appellant to collect the refund money. Clement Dolor testified, against the interest of the Appellant –
The Plaintiffs Attorney not only told me but gave me a copy of American Airlines Ticket which he bought in the US –
I was instructed to apply for a refund for the American Airlines Ticket. It is not correct to say that I was (sic: not) instructed to apply for refund of the Emirates Airlines Ticket. I did apply for the refund of the Emirates Airline Ticket.
I did apply for the refund of the Emirates Airlines Ticket later.
In paragraph 17 of the statement of claim it is averred inter alia that the Appellant’s ”Attorney instructed Mr. Clement Dolor – to demand from his employer a refund of a value of the new/alternative Electronic Ticket he purchased from the American Airlines (i.e USD 3,200.00)”. It is further averred in the statement of claim that the Respondent refunded, through Clement Dolor, USD 1,774.00 instead of the USD 3,200.00 and that the Appellant’s Attorney instructed Clement Dolor to refund the said USD 1,774.00 to the Respondent, which sum the Respondent, in turn, refused to collect from Clement Dolor, (PW.1). At page 190 of the record, PW.1, Clement Dolor, admitted that he is “still in possession of the Money”. The PW2, Appellant’s Attorney, confirms at page 196 of the Record that “the refund made is in possession of Clement Dolor”.
At page 201 of the Record, the DW.1, under cross-examination, confirms that “Emirate Airline issued the ticket” to the Appellant “through Simba Travel & Tours”. At page 204 of the Record, the DW.1 testified that “it is Simba Travel & Tours that applied for the refund”. From the totality of evidence Clement Dolor, PW.1, owns Simba Travels & Tours, a travel agency.
For the Respondent it is submitted that the existing facts clearly establish that Clement Dolor, PW.1, was the agent of the Appellant when he applied for the refund of the American Airline ticket and that the Lower Court was right in holding that he was the agent of the Appellant for the purpose of not only the refund of American Airline Ticket but also the refund Emirate Airline Ticket. Existing facts support that inference. Clement Dolor, PW. 1, testified at page 188 of the Record that the Appellant was his client for five years. The Lower Court’s finding of fact on this is not perverse. The Appellant has not established any special circumstance that warrants my disturbing this finding of fact. Accordingly, I affirm the finding of fact, as I resolve issue 6 against the Appellant.
I allow the appeal on all the issues canvassed by the Appellant, except issue 6. On issues 1 – 5 the judgment of the Court of Appeal delivered on 11th April, 2014 in the appeal No. CA/L/1214/2010 is hereby set aside. The judgment of the trial court is restored, subject to the finding of fact by the Lower Court that for the purpose of the refund of the flight tickets, Clement Dolor PW.1 was the agent of the Appellant. The Appellant is entitled to costs which I hereby assess at N500,000.00. The sum shall be paid by the Respondent to the Appellant as costs.
MARY UKAEGO PETER-ODILI, JSC: I am in total agreement with the judgment just delivered by my learned brother, Ejembi Eko JSC and to register the support in the reasoning from which the decision came about, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal Lagos Division or Court below or Lower court, Coram: Amina Adamu Augie JCA (as she then was), Joseph Shagbaor Ikyegh and Chinwe Eugenia Iyizoba DCA on the 11th April, 2014 wherein the Court below upheld the appeal brought by the respondent, upturned and set aside the award of N2,500,000.00 (Two Million, Five Hundred Thousand Naira) general damages and N250,000.00 (Two Hundred and Fifty Thousand Naira) cost of the action awarded by the Federal High Court, Lagos Division, per Charles Effanga Archibong J on 15th November, 2010.
The background facts set out in the lead judgment and I shall not repeat them save for when the occasion warrants a reference to any part thereof.
On the 13th November, 2018 date of hearing learned counsel for the appellant, Dr. Charles D. Mekwunye adopted the brief of argument filed on 6/11/2012 and a reply brief filed on 25/11/2015. The appellant raised six (6) issues for determination which are thus: –
1. Whether the award of N2.5 Million as general damages for breach of contract by the trial court against the respondent qualifies and or amounts to a non-compensatory damages contrary to the provisions of the Montreal Convention and the terms of contract between the parties. (Ground Two).
2.Whether the Court of Appeal was right to have held that the limitations as to damages claimable under a contract for the carriage of passengers, baggage and cargos provided in the Montreal Convention was applicable to this case? (Ground Three).
3.Whether the award of N2.5 Million general damages by the trial court in favour of the appellant in addition to the refund of the exact amount expended by the appellant in purchasing an alternative ticket to Nigeria through longer routes amount to double compensation. (Ground One).
4.Whether the sum of N250,000.00 awarded by the lower trial court as cost for the suit amounts to special damages and thus requires that there must be strict proof of same? (Ground Four).
5.Whether the Court of Appeal has jurisdiction to have considered the issue raised by
MISSING PAGE 4
2.Whether the court below applied the right principle of law when it reversed the award of N2.5 Million as general damages granted by the trial court in order to avoid double compensation.
3.Whether the court below was right to reverse the trial court’s decision that the limitation of liability in the Montreal Convention was not applicable and whether the appellant is permitted to raise and argue new issues of gross negligence and wilful misconduct not raised at the trail court.
4.Whether the court below was right to hold that the “cost of instituting this action” constitutes special damages that should be pleaded and proved.
5.Whether the court below was right to consider the issue of coast without the respondent first seeking leave of court.
6.Whether the court below was right to order the respondent to pay the sum of $3200 after deducting the sum of $1,774 already refunded to the agent of the appellant.

For ease of reference I shall make use of the Issues as crafted by the appellant.
ISSUE 1 & 2:
1.Whether the award of N2.5 Million as general damages for breach of contract by the trail court against the respondent qualifies and or amounts to a non-compensatory damages contrary to the provisions of the Montreal Convention and the terms of contract between the parties.
2.Whether the Court of Appeal was right to have held that the limitations as to damages claimable under a contract for the carriage of passengers, baggage and cargo provided in the Montreal Convention was applicable to this case.

Learned counsel for the appellant contended that Article 29 of the Montreal Convention did not eradicate the right of a non-breaching party to damages or completely prohibit the award of general damages against an airline operator for grievous and reckless breach of contract of carriage by air but merely prohibits the award of aggravated, punitive and other non-compensatory damages. That the Court below erred when they held that the award of N2.5 million general damages for breach of contract against the respondent contrary to the Montreal Convention which had placed a limit to such claims. He cited Cameroon Airline v Otutuizu (2011) 8 WRN 1 or (2011) 4 NWLR (Pt. 1238) 512; British Airways v Atoyebi (2014) 13 NWLR (Pt.1424) 253; UBN Plc v Ajabule & Anor (2011) LPELR – 8239 etc.
On the guiding principles when considering assessment of damages for breach of contract, learned counsel for the appellant referred to Gabriel Ativie v Kabelmental Nig. Limited (2008) 10 NWLR (Pt.1095) 399 per Onnoghen JSC (as he then was).

That the trial court did not declare any intention to award punitive damages just as the appellant did not make such claim and as such the court below had no basis to conclude that the said award made was in contravention of the provisions of the Montreal Convention which prohibit award of non-compensatory and or punitive damages. That this is a proper instance for the interference of the Supreme Court on the findings and conclusion of a court below.
He stated on that the denial of boarding to the appellant without just cause is both a case of wilful misconduct and a breach of fundamental terms of contract- amounting-to failure of performance. He referred to Suisse Atlantiqe Societe d’ Armement Maritime S.A. v N. V. Rotterdamsche (1967) 1 AC 361; International Messengers (Nigeria) Limited v Pegofor Ind. Limited (2005) 15 NWLR (Pt.947) 1.
Responding, learned counsel for the respondent contended that Article 29 of the Montreal Convention does not permit the award of general damages in addition to special damages contrary to the established principles governing award of damages in breach of contract cases and so the further award of N2.5 million as general damages to the appellant in this aviation claim is punitive and cannot be termed compensatory. That the only compensation the appellant is entitled to is for loss that naturally flows from the breach of contract and within the contemplation of the parties at the time of the contract. He cited Tsokwa Motors Ltd v United Bank For Africa (2008) 2 NWLR (Pt.1071) 347 etc.
The contending views are firstly, appellant’s stance that the court below erred when it held that the award of N2.5 million general damages for breach of contract against the respondent is contrary to the provision in the Montreal Convention which had placed a limit to what is claimable except where negligence or wilful misconduct is establish. Also that there is prohibition of the award of general damages against an airline operator for grievous and reckless breach of contract of carriage by air but merely prohibits the award of aggravated, punitive and other non-compensatory damages.

On the other hand, the respondent’s stance is that Article 29 of the Montreal Convention does not permit the award of general damages in addition to special damages contrary to the established principles governing the award of damages in breach of contract cases. That Article 29 limits damages to compensation payable under Article 22 only and nothing more.
I shall quote the said Article 29 for clarity thus: –
“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”. (Underlining mine).
It is to be noted that there are two general categories of damages that may be awarded if a breach of contract claims is proved and these are compensatory damages and compensatory damages also called “actual damages” which cover the loss the non-breaching party incurred as a result of the breach of contract and the amount awarded is intended to make good or replace the loss caused by the breach. This is based on the principle, restitution in integrum. See British Airways v Atoyebi (2014) 13 NWLR (Pt.1424) 253.
Within compensatory damages the innocent party may be entitled to recover general and special damages depending on the circumstances.
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 they 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. A long line of cases this Court have followed this line but I shall refer to a few. British Airways v Atoyebi (supra); Odiba v Azege (1998) 9 NWLR (Pt.566) 370; (1998) LPELR-2215, P. 15, paras. D-F (SC).
“The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages. Vindictive damages, even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like”. PER MOHAMMED, JSC.
As per Kekere-Ekun JSC in the British Airways’v Afbyebi (supra) at page 286: –
“General damages, such as the law presumes to be the natural and probable consequences of the defendant’s act need not be specifically pleaded. It arises by inference of law and need not therefore be strictly proved by evidence and may be availed generally”.

I further refer your Lordships to the following decisions of this Honourable Court to wit: –
AGUNWA v ONUKWE (1962) 1 All NLR 537; SHELL B.P. v COLE (1978) 3 SC 183; W.A.E.C. v KOROYE (1978) 2 SC 45; RENOLDS v ROKONOH 2005 10 MJSC 159.
I agree with learned counsel for appellant, that Article 29 of the Montreal Convention does not prohibit the grant of general damages but punitive, exemplary or non-compensatory. We submit that following the rules of interpretation that “when general and specific words are grouped, the general words are limited by the” specific and will be construed to embrace only objects similar in nature to those things identified by the specific words”. The word non-compensatory damages as stated in the said Article 29 of the Montreal Convention can only be construed in the likes of punitive, aggravated and/or exemplary damages and not general damages or cost of an action awarded to a successful party. I refer your lordships to the decision of this Honourable Court in Ehuwa v Ondo State Independent Electoral Commission & Ors (2006) 10 NWLR (PL 1012) 544; (2006) LPELR-1056, P.61, Paras. G-D.
“I think this is where the Ejusdem generis rule should apply. The rule simply means that in interpreting the provisions of a statute, general words which follow particular and specific words of the same nature as themselves take their meaning from those specific words. In the context of the provisions of Section 246 of the Constitution, it is my view therefore that election petitions on Section 246 (3) of the Constitution should be presumed to be confirmed to the election petitions specifically mentioned in Section 246 (1) (b) of the Constitution that is to say, decisions of National Assembly Election Tribunals Governorship and Legislative Houses Election Tribunals”.
Indeed, Compensatory Damages is the same as General Damages which is damages recovered in payment for actual injury or economic loss, which does not include punitive damages. A sum of money awarded in a civil action by a court to indemnify a person for the particular loss, detriment, or injury suffered as a result of the unlawful conduct of another. Compensatory damages provide a plaintiff with the monetary amount necessary to replace what was lost, and nothing more. Indeed, this Honourable Court has held in the British Airways v Atoyebi (supra) that general damages are compensatory damages. See also UBN Plc v Ajabule & Anor (2011) LPELR-8239 (supra).
In Artra Ind. Nig. Ltd v N.B.C.I. (1998) LPELR-565, P.48, Pafas.T-G3C, it was held that “the award of general damages is another way of compensating the plaintiff or the loss of expected profit and the freight on the goods”. Per Onu JSC.
Also in Wahabi v Omonuwa, (1976) LPELR-3469) at page 17, paras. C-D, the Supreme Court held that: –
“General damages are those which the law implies in every breach of contract (see also Marzetti v Williams (1830) 1 BFA d.415), and where no real damage has been suffered may be a trifling amount”. Per Igigbe, JSC.
See in Cameroon Airlines v Otutuizu, (2011) LPELR-827 SC, the Apex Court held at page 31.
I am not stating anything new in saying that general damages are different from punitive damages, as while general damages or compensatory damages provide the claimant with the monetary amount necessary to replace what was lost, punitive damage punishes a defending party for his or her conduct as a deterrent to the future commission of such acts. What is required of the claimant or plaintiff to qualify for the award of compensatory damages is to prove that he or she has suffered a legally recognisable harm that is compensable by a known amount of money that would be objectively determined by a judge and this was the stand the learned trial judge took.
That position has long been recognised by this Court and my learned brother, Rhodes-Vivour in the case of Cameroon Airlines v Otutuizu (2011) LPELR-827 SC stated as follows at page 31 this: –
“Once breach of contract is established, damages follow. General damages are thus losses that flow naturally from the adversary and it is generally presumed by law, as it need not be pleaded or proved. See BUN Ltd v Odusote Bookstores Ltd (1995) 9 NWLR (Pt.421) P558, general damage is awarded by the trial court to assuage a loss caused by an act of the adversary”.
On what amounts to punitive or exemplary damages, this was dealt with by the court in the case of Odiba v Azege (1998) LPELR-2215 (SC) at Page 25, thus:
“Exemplary damages, in particular, also known as punitive or vindictive damages can apply only where the conduct of the defendant merits punishment, and this may be considered to be so where such conduct is wanton, as where it discloses fraud, malice, cruelty, insolence or the like, or where he acts in contumelious disregard of the plaintiff’s rights. But exemplary damages, to some extent, are distinct from aggravated damages whereby the motives and conduct of the defendant aggravating the injury to the plaintiff would be taken into consideration in the assessment of compensatory damages”. Per Iguh JSC.
In the case at hand, the appellant as plaintiff at the trial court led evidence to establish that she suffered economic loss, loss of valuable time, great anxiety, trauma and emotional stress between 17th December 2007 when she was refused boarding without reason and without any explanation or alternative arrangement and 19th December, 2007 when she was eventually able to partly mitigate her loss by procuring alternative flight arrangement with American Airlines routed through Dallas – Fort Worth – London Gatwick – Dubai – Lagos and back which is a longer route and also lost time to return to Dallas USA because both tickets in issue were return tickets.

It follows that since general damages are meant to compensate such class of injury or loss, she suffered from the wrongful and deliberate denial of boarding and it can be seen that general damages in that wise are naturally flowing from the act of the defendant and implied by law in the breach of contract that has ensued and so there is no need, for it to be specifically proved. See Wahabi v Omonuwa (1976) LPELR-3469 (SC) Page 17.
In reiteration on an already over flogged principle is the equitable one that where there is a right established a remedy must be in place and it is within that ambit that the interpretation of the provision of the Montreal Convention would be made in order that the intendment that propelled the enactment would be best understood so that the consumer has better protection and compensation and the facilitation of faster air cargo shipments. In other words, the courts are not to be enslaved with a tight, inequitable literal interpretation of Article 29 to the detriment of consumer and so the convention is to be read as a whole and not in bits and pieces so as to see through the intention of the legislators. See Onyeniran v Egbetola (1997) 5 NWLR (Pt.504) 1997; Kaydee Ventures Ltd v Minister FCT (2010) 7 NWLR (Pt.1192) 171.
Taking the guiding principles of general damages or compensatory damages, the trial court awarded the special damage of the refund of the American Airline ticket but clearly that cannot afford adequate compensation for the loss suffered by the appellant which were clearly shown in evidence or discerned therefrom, hence that award of 142.5 million general damages is justified in the circumstance. This is viewed within the precinct of the Supreme Court decision in Gabriel Ativie v Kabelmetal Nig. Limited (2008) 10 NWLR (Pt.1095) 399 per Onnoghen JSC (as he then was) thus: –
“Assessment of damages for breach of contract is based on the doctrine of restitution in integrum, which is to the effect that in so far as the damages are not too remote, a plaintiff should be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred. It is in line with the above principle that award of damages in breach of contract cases should be such as:
may fairly and reasonably be expected to arise naturally, i.e. according to the usual course of things from such breach of contract itself; or
‘(b) may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it. Okongwu v N.N.P.C. (1989) 4 NWLR (Pt.115) 296”.
The follow up to the above is that the general damages awarded by the trial court were within the contemplation of the parties and the Court of Appeal had no excuse to interfere in that exercise of discretion of the trial court by setting aside that award as the award was compensatory damage for losses reasonably expected to arise naturally from the nature of the particular breach of contract. The interference by the Lower court being unjustified, should be disturbed at this level.
The next question to address is whether the limitation of liability under the Montreal Convention is applicable to the instant case in relation to damages or compensation. Indeed, it is the law that the limitation as to damages or compensation provision under the said convention is subject to the exception that the respondent is not found to have acted with intent to cause damage or acted recklessly with knowledge that damage would be the probable result. This can be seen in Article 22 (5) of the Convention for the Unification of certain Rules Relating to International carriage by Air (Montreal 1999) which was domesticated pursuant to Section 48 of the Civil Aviation Act 2006.
It has to be said that the Montreal Convention would not provide a cover to arm carriers in cases where they deny boarding to a passenger. This is to ensure that cases of wilful misconduct and gross negligence are exempted under Article 212 (2), 22 (5), 30 (3) of the Montreal Convention. Therefore, the denial of boarding without just cause is both a case of wilful misconduct and a breach of fundamental terms of contract in fact and law and translates to failure of performance and the carrier cannot run away from its obligations in that regard under cover of the Montreal Convention Fundamental breach of contract was defined by Lord Reid in the case of Suisse Atlantique Soceite d’ Armement Maritime S.A. v N.V. Rotterdamsche (1967) 1 AC 361 thus: –
“a well – known type of breach which entitles the innocent party to treat it as repudiatory and to rescind the contract”.
Also in the case of International Messengers (Nig.) Limited v Pegofor Ind. Limited (2005) 15 NWLR (Pt.947) 1 per Edozie JSC in his definition of fundamental breach stated as follows: –
“The expression “fundamental breach” is used to denote a performance totally different from that which the contract contemplated or a breach of contract more serious than one which would entitle the other party merely to damages and which at least would entitle him to refuse further performance of the contract: Suisse Atlantique case (1967) 1 AC 361 at 392; 399″.
The same root had been followed in the case of Niger Insurance Company Ltd v Abed Brothers Ltd & Anor (1976) LPELR-1995 (SC), thus: –
“A fundamental term of a contract is a stipulation which the parties have agreed either expressly or by necessary implication or which the general law regards as a condition which goes to the root of the contract so that any breach of that term may at once and without further reference to the fact and circumstances be regarded by the innocent party as a fundamental breach and thus is conferred on him the alternative remedies at his option”. Per Bello JSC (as he then was) at Pages 18-19.

The bottom line as exotic and sophisticated as an airline flight may be with the International trappings in tow what I see before me is a simple contract of carriage of a passenger and goods in relation to the carrier and so as in this case there is a contract of the parties with the party being the respondent who shall upon the purchase of the flight ticket by the appellant being obligated to carry the appellant aboard its flight on the 17th December, 2007 from Dallas Texas in U.S.A. en route to Lagos Nigeria and back. Therefore, the failure on the part of the respondent to allow the appellant to board its flight on the agreed date of departure is a breach of a fundamental term because carriage of the appellant is central to the entire contract as it is. This is because as submitted by learned counsel for the appellant and I accept it as the law that there is no contract without consideration, consequently, the court will not allow a party to a contract to refuse to carry out its obligation without justification and then rely on exclusionary or limiting terms to escape liability when the said exclusionary term or limitations of liability negates the essence of the entire contract. I refer to the book, “Nigeria Law of Contract 1st Edition by Okay Achike, JSC (as he then was) published by N.P. Publishers, at page 107, where the learned jurist opined that:
“It is now common place that a defendant may exclude liability under the contract by the insertion of very wide exclusionary terms, yet the court will not allow him to obtain protection from such limiting clauses if their provision will defeat the performance of the fundamental or basic obligation created by the contract”.
The learned jurist further opined that:
“under the doctrine of fundamental terms, no clauses excluding liabilities from warranties and condition will avail the supplier from his breach of a fundamental obligation under this contract…. Clearly, where the consideration wholly fails, the central purpose of the contract disappears”.

See also the case of Adel Boshalli v Allied Commercial Exports Ltd, (1961) All NLR 917 at page 922, where the Privy Council Per Lord Guest held inter alia as follows: –
“an exemption clause can only avail a party if he is carrying out the contract in its essential respects. A breach which goes to the root of a contract disentitles a party from relying on an exemption clause”.
Again the Privy Council case of Pinnock Brothers v Lewis & Peat Ltd (1956) 2 All E. R. 866, where the Privy Council Per Denning, U (as he then was) stated inter alia that:
“It is now settled that exempting clauses of this kind no matter how wisely they are expressed, only avail the party when he is carrying out his contract in its essential respects”.
What I am attempting to communicate with humility is that the limitation of liability under the Montreal Convention cannot find anchor in a clear case of breach of a fundamental term of a contract of carriage by air as the case in hand in the prevailing circumstances and similar situation was tackled by this court in Owners, M. V. Gongola Hope v S.C. (Nig.) Ltd (2007) 15 NWLR (Pt.1056) 189 per Mudsdapher JSC (as he then was) thus: –
“I am also of the view that the appellants having admitted the loss of the goods without any explanation and without disproving that they were negligent or fraudulent cannot avail themselves of the defence of the limitation of liability. From the facts, the appellants were guilty of a fundamental breach of the contract and they could not therefore rely on their own wrong doing to limit their liability. In any event, they led no evidence whatsoever to support their entitlement to the defence. When a contract of carriage is breached in such a manner and when no explanation is offered as to how the loss occurred and where the shipper pleads and proves fraud, misrepresentation and negligence The Hague Rules and the per package limitation will not apply. See The Pembroke (1993) Lloyds Rep. 230, The Chanda (1989) 2 Lloyds Rep (494). I accordingly discountenance the two issues formulated by the appellants and consequently strike out the appeal as incompetent”. (Underlining mine).
My learned brother, Kekere-Ekun JSC recently dealt with a similar scenario in British Airways v Mr. P. O. Atoyebi (2014) LPELR-23120 as follows: –
“I am of the view that the averments in the paragraphs reproduced above clearly disclose an allegation of wilful misconduct on the part of the appellant. Though described as particulars of negligence, the facts set out in sub-Paragraphs (a) to (e) of paragraph 21 are facts tending to illustrate the acts of wilful misconduct allegedly committed by the appellant. The respondent gave copious oral and documentary evidence in support of the above pleadings. The two lower courts, reiving on these facts rightly concluded in my view, that having regard to the circumstances of the case, the appellant was not entitled to avail itself of the provisions of the CAP to limit or exclude its liability towards the respondent. I agree with the findings of the two lower courts that the acts of the appellant in this case were reckless and deliberate. It not only failed to deliver the respondent’s checked baggage upon his arrival in Lagos, after several fruitless trips by him to the airport in Lagos over a period of three days on the appellants promise that the baggage would arrive, it deliberately refused to deliver the said baggage to his duly authorised agents in London when it was located at their office at Heathrow Airport, and continued to withhold it until the respondent had to travel back to the U.K. to retrieve it at great personal expense. It was clear from the evidence led at the trial that the appellant had no intention of delivering the respondent’s baggage to him in Lagos, having abandoned it at its Lost Baggage store in London. It was on this basis that both courts considered the respondent’s claim for damages. I agree with both courts that in view of the appellant’s acts of wilful misconduct, it was not entitled to restrict or limit its liability to the amount provided for in Article 22 (2) of the CAO. By virtue of Article 25, once wilful misconduct was established, the respondent was entitled to damages”. (Underlining mine).
The situation as I see it is that in the adjudicatory functions of the court, it behoves it as a duty to prevent injustice in any given circumstance and ensure that in delivering a decision a party is not allowed to escape his obligation under a contract by his own wrongful act or derive a benefit from his own wrongful act. See Teriba v Adeyemo (2010) 11 NWLR (Pt. 1211) 242 per Tabai JSC.

It is therefore in the maintenance of the spirit of justice that the court functions to do justice between parties to a dispute as anything short of that defeats that spirit of the law and constitution and so every wrong not the fault of a party should not be visited on the innocent party in whatever guise as the innocent victim must be atoned. See Ugba v Suswan (2014) 14 NWLR (Pt.1427) 264 at 341; Engineering Enterprises v A. G. Kaduna State (1987) 2 NWLR (Pt. 57) 381 at 419.
I would not end the answer to the question herein raised if the matter of “wilful misconduct is not tackled since it takes the offending party out of the protective shield of the Montreal Convention. The concept of “wilful misconduct is defined in the English case of Horabin v BOAC (1952) 2 All ER 1016 at 1020 as follows: –
“Wilful misconduct is misconduct to which the will is a party and it is wholly different in kind from mere negligence or carelessness, however gross that negligence or carelessness may be …. To be guilty of wilful misconduct, the person concerned must appreciate that he is acting wrongfully, or is wrongfully omitting to act, and yet persists in so acting or omitting to act regardless of the consequences, or acts or omits to act with reckless indifference as to what the result may be; all the problems… must be considered in the light of that definition”.
In a localised definition of the situation this court stated in the case of Cameroon Airlines v Otutuizu (supra) thus: –
“It is well settled that the appellant was in breach of contract as principal and agent in not flying the
respondent to Manzini, Swaziland, (Exhibits A and B). It is reasonably foreseeable that a passenger (the respondent) arriving in South Africa without a transit visa would be arrested, with grave consequences for the passenger. Consequently, the act of the appellant flying the respondent to South Africa with no that the respondent did not have a transit visa, apart from being a clear breach of the agreed route, it amounts to a negligent breach of contract. A wilful misconduct in the extreme. By the provision of Article 25 of the convention a carrier (the appellant) loses its entitlement to rely on the limit set on its liability by Article 22 (1) where a briefcase containing $20,000 and valuables of the respondent is taken away (and never returned) by South African Immigration officials as a result of the wilful act of the appellant in flying the respondent to South Africa, when it knew the respondent did not have a South African transit visa. When the carrier commits wilful misconduct, the respondent is entitled to more damages than the limit set in Article 22 of the convention. Oshevire v British Caledonia Airways ltd 1990 7 NWLR P.507 presents similar reasoning. In that case it was held that where a parcel containing valuable cargo is stolen as a result of concerted action taken within the scope of their employment by one or more employees of the carrier who also most probably stole the documents, the plaintiff would be entitled to more damages than the limit in Article 22 supra, since the carrier had committed wilful misconduct. I am highly swayed by this reasoning. Indeed, in all other cases spelt out in the convention the limits on liability must be followed but where there is a breach of contract of such magnitude that it amounts to a wilful act, a wilful misconduct the limits are no longer applicable”. Per RHODES-VIVOUR, JSC (pages 28-29 paras. E-E) (Underlining supplied).
Also in a language very similar, the Apex Court of Nigeria in Harka Air Service (Nigeria) Ltd v Keazor (2011) LPELR-1353 at pp.30-32, paras. A-B while considering Air Carrier’s Liability held:

“By virtue of Article 17 of the Warsaw Convention, the Carrier is liable for the damages sustained in the event of the death or wounding of a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. To establish liability, the claimant must prove that: (a) the passenger must have been wounded or suffered bodily injury; (b) the injury must have arisen from the accident; (c) the accident must have occurred on board the aircraft or during the course of embarking. Article 22 makes provision for the limitation of the liability of the carrier for each passenger and for registered baggage and cargo, it reads – (10 in the carriage of passengers, the liability of the carrier for each passenger is limited to the sum of 125,000 francs, where in accordance with the law of the courts seized of the case, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 125,000 francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability. (2) In the carrier of registered luggage and of goods, the liability of the carrier to the sum of 250,000 francs per kilogram unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case, the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that the sum is greater than the actual value to the consignor at delivery. (3) As regards objects of which the passenger takes charge himself, the liability of the carrier is limited to 5000 francs per passenger, (a) The sums mentioned above shall be deemed to refer to the French franc consisting of 65% milligrams gold of millesimal fineness 900. The sums may be converted into any national currency in round figures. Article 25 stipulates that – (1) the carrier shall not be entitled to avail himself of the provisions of this Convention which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as in accordance with the law of the court seized of the case, is considered to be equivalent to wilful misconduct. (2) Similarly, the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment. By virtue of Article 25 (1), the carrier shall not be entitled to avail himself of the provisions of this convention which limit or exclude his liability if the damage is adjudged by a court seized of the case to be caused by his wilful misconduct. Similarly, the carrier shall not be entitled to avail himself of the provisions, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment. Where there is default of such magnitude that it amounts to a wilful misconduct, the limits provided by the convention to liability of the carrier are not applicable”. Per Adekeye, JSC
(Underlining mine).
The resultant effect of all I have been trying to impart is that the respondent was in fundamental breach of the contract and so cannot call in aid the Montreal Convention as it cannot apply to limit the liability of the respondent to the appellant for that breach. These issues are resolved against the Respondent.
ISSUES 3 & 4:
3. Whether the award of N2.5 Million general damages by the trial court in favour of the appellant in addition to the refund of the exact amount expended by the appellant in purchasing an alternative ticket to Nigeria through longer routes amount to double compensation.

4. Whether the sum of f4250,000 awarded by the trial court as cost for the suit amounts to special damages and thus requires that there must be strict proof of same.
Learned counsel for the appellant submitted that the law against double compensation does not completely eradicate the right of a non-breaching party to both general and special damages in a deserving case such as where a party is able to show or it is apparent from the circumstance of the case and nature of injury suffered by the party that special damages would not adequately compensate for all the loss, the court must go ahead and award both special and general damages. That the fact that the appellant underwent financial loss, frustration, emotional distress and anxiety were clearly deciphered from the evidence led before the trial court and these were not denied by the respondent and so they are taken as admitted and therefore needed no further proof. He cited Efet v INEC (2011) 7 NWLR 423.

That the court below erred in setting aside the cost awarded by the trial court. He cited Haco Ltd v Brown (1973) 4 SC (Reprint) 103; Order 25, Rules 2 and 7 of the Federal High Court (Civil Procedure) Rule 2009.
Learned counsel for the respondent contended that the case of British Airways v Atoyebi (supra) is distinguishable from this case at hand as the pleadings of the appellant at the trial court in no way alleged misconduct. That the contract of the parties is strictly governed by its terms and conditions as contained in the contractual documents and various laws regulating the contract and rules of equity and public policy considerations are irrelevant in determining the contractual rights of the parties.
Indeed, alarm bells would ring out where it seems double compensation is being awarded by the court and though the law guards against double compensation that principle does not rule out the award of both general and special damages in a deserving situation. This occurs where a party is able to show or where it is glaring from the surrounding circumstance of the case and nature of injury suffered by the party that special damages would not adequately compensate for all the loss, the court must go ahead to award both special and general damages and this cannot be termed double compensation. The Court of Appeal case of S.P.D.C. Nig. v Okonedo (2008) 9 NWLR (Pt.1091) 85 at 125 echoed this principle which I adopt wholeheartedly and it is as follows: –
“The law frowns at double compensation in award of damages to a successful litigant. In the instant case, the respondent’s claim was for trespass and having established ownership and unlawful interference, the award of N2,000,000.00 Million Naira, general damages by the trial court in addition to the award of special damages did not amount to double compensation in the circumstances of the case”.
The case of Odinaka v Moghalu (1992) NWLR (Pt.233) 1, expatiated the concept fully and thus: –

“It is not being contested that the 29 crates of motorcycle spare parts entrusted to the appellants were not lost. The issue which the appellants are contesting now is the loss of profit. For the purpose of clarity and easy understanding of this issue, it is desirable even at the risk of repetition to set out paragraph 14 of the Statement of Claim. It reads thus:
“14. The plaintiff claims against the defendants jointly and severally the total sum of N32.246.07 made up as follows: –
(a)N16,246.07 being the total cost of the 29 cases of Motorcycle spare parts.
(b)N16,000.00 loss profit on the 29 cases of Motorcycle spare parts”.
The plaintiff/respondent in his evidence after referring specifically to the contents of the 29 cases said: “The goods were shipped from Taiwan. The total cost was N16,246.07. I imported the goods for sale. If I had sold the goods, I would make a profit of N16,000,00″. He was cross-examined in respect of the profit only. The plaintiff/respondent said: – ” make 100% profit because I buy the parts at Taiwan where they are cheaper. Those from Japan are cheaper. I have been in the motorcycle business since 1974. The defendants are liable to me”. The defendants/appellants did not call any evidence in rebuttal. What is required in a case of this nature is credible evidence. Counsel are always carried away in respect of claims tagged special damages. A host of witnesses if not reliable cannot sustain a claim based on special damages. Once their credibility is in doubt, the claim will be rejected. The truth of any claim does not depend on the number of witnesses except where the law requires more than one witness, then the claim will fail without that specified number of witnesses. The probative value of the evidence is the guiding principle in the award under this head: OSHIMINRIN v ELIAS (1970) 1 All NLR 153. See the case of WEST AFRICAN SHIPPING AGENCY (NIG.) LTD & ANOR v ALHAJI MUSA KALA (1978) 3 SC 21/32 Where this court agreed with the Privy Council decision in ADEL BOSHALI v ALLIED COMMERCIAL EXPORTERS LTD. (1961) 2 SCNLR 322 (1961) 4 All NLR, 917 where their Lordships of the Judicial Committee said “The Federal Supreme Court took the view that the figure of 6d per yard for loss of profit on the sale of the goods awarded by the trial judge res led on the ipse dixit of the appellant that he would have made a profit of 6d and that this was not sufficient proof of his actual loss of profit. The only evidence as to loss of profit came from the appellant who was an expert in the trade and whose evidence was accepted by the trial judge. He was not cross-examined on the basis that his claim was excessive. The trial judge was in their Lordship’s view fully entitled in the absence of any contrary evidence to take the figure of 6d per yard as the appellants’ loss of profit. It is wrong in law to regard this award as double compensation. The case of EZEANI v EJIDIKE (1964) 1 All NLR 402 relied upon by the appellants does not apply. That was a case where a tenant who was allowed to put up a building on a piece of land granted to him by the community was given notice to leave the site and remove all his belonging from the site. He instructed a contractor to demolish the building and remove the materials. The Community prevented the tenants from removing the materials from the site. The members of the community on their own removed both the materials from the site and other materials the tenants stored within the premises. The tenant sued for conversion and also claimed general damages. The trial judge granted the amount claimed in full. On appeal the Federal Supreme Court said: “The measure of damages in an action in tort is not the same as in an action in contract, but the rule against double compensation remains the same. In an action for conversion, it is well settled that the normal measure of damages is the market value of the goods converted though in certain cases, of which this is not one, the plaintiff may be able to recover damages for consequential losses as long as the damage is not remote”. In this appeal, it is a case of bailment. The delivery of the goods, rightly expected by the plaintiff, was based on the contract. The respondent’s evidence of profit was not controverted, nor could it be said it was false. Definitely the profit in this case is completely outside the rule against double compensation”.
Within the concept of where there is a wrong the court must provide a remedy is a principle with universal application and in so doing technicalities are taken aside in the determination of disputes and so in line with that justice based concept in the consideration of the matter before this court where the appellant occasioned incidental loss, injuries, costs and other consequences resulting from the misconduct of the respondent and so the court is obliged to make an assessment in general damages with the standard of the reasonable man and that would certainly not exclude the award in actual cost of an alternative ticket purchased by the appellant. This cannot be to deny the appellant of both the general and special damages. See Saleh v Monguno (2006) 15 NWLR (Pt.1001) 316.
The clear distinction has to be made between general and special damages as the former lies in the fact that the court is entitled to presume or infer the injury as the plaintiff is not under any obligation to set out the particulars of general damages and specifically prove them while special damages are of a different
kind being that which has to be specifically pleaded and proved. See Akinkugbe v Ewulum (2008) Vol.6 MJSC 134 at 146; S.P.D.C (Nig.) Ltd v Tiegbo VII (2005) 9 NWLR (Pt.931) 439.
On the Court of Appeal setting aside the sum of N250,000.00 awarded by the trial court as cost for the suit which that trial court referred to as “an order for the payment of the sum of N1,000,000.00 being the cost of instituting this action. The Court of Appeal took the view it was solicitor’s fees which it felt the court should not venture into. The point has to be made that a successful party to litigation is entitled to be awarded costs except where she misconducts herself. This court in Haco Ltd v Brown (1973) 4 SC (Reprint) 103 per Irikefe Ag. JSC (as he then was) held thus: –
“We are satisfied that there is abundant authority in support of the proposition that a successful party in an action, unless he misconducts himself, is entitled to costs as of right. See Cooper v Whittingham (1880) 15 Ch.D. 501, at P.504; Inneh v Obaraye (1957) 2 FSC 58, at P.59; and Ladega v Akinliyi & Ors, SC.1/1969 delivered on 19/1201969”. Per IRIKEFE, AG. JSC.

see Article 22 (6):
“6. The limits prescribed in Article 21 and in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest. The foregoing provision shall not apply if the amount of the damages awarded, excluding Court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later”.
Clearly the Court of Appeal had not adverted its mind to the Federal High Court Rules on the discretionary powers of the trial court to award costs. I shall cite order 25 Rules 2 and 7 of the Federal High Court (Civil Procedure) Rule 2009 provide thus; –

“Subject to the provisions of any applicable law and these Rules, the costs of and incidental to all proceedings in the Court, including the administration of estates and trusts shall be at the discretion of the judge, and the judge shall have full power to determine by whom and to what extent the costs are to be paid”. (Underlining ours for emphasis).
Rule 2 provides thus: –
“2. (1) In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been unnecessarily put in the proceedings, as well as compensated for his time and effort in coming to court. The judge may take into account all the circumstances of the case
(2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the judge at the time of delivering the judgment or making the order,
(3) When the judge deems it to be impracticable to determine summarily the amount of any costs which the judge has adjudged or ordered to be paid, all questions relating thereto shall be referred by the judge to a taxing officers for taxation”.
I agree with the appellant that deducing from the foregoing provisions, it is clear that the power conferred on the court under the legislation in awarding costs is discretionary and not based on pleading of the parties or strict proof before the court determine whether or not to grant same. It is thus that the Court of Appeal was wrong to have held that the award of cost by the trial court amounted to granting special damages not proved.
The discretion of the trial court in awarding cost is one which the Court of Appeal ordinarily ought not to interfere with except and unless the award is manifestly excessive or too low. See the case of Admin v NBC Limited (2010) 9 NWLR (Pt.1200) 543 at 561 paras. F-G (SC); NITEL Ltd v Ikpi (2007) 8 NWLR (Pt.1035) 96. See also the case of Ekpeyong v Nyong (2003) 51 WNR 44; (1975) 2 SC 71 pages 80/81.
My lords, this honourable court have in several decisions confirmed the foregoing view relating to the exercise of discretion in awarding cost. In the case of NBCI v Alfijir (Mining) Nig. Ltd (1999) 14 NWLR (Pt.638) 179; (1999) LPELR-2015, this court, Per Achike, JSC at PP.42-43, wherein he broke it down as follows: –
“The award of costs of refusal to award costs is a matter in the discretion of the court, subject to the only qualification that the court’s discretion must be seen to have been judicially and judiciously exercised in this regard. It is a popular saying that costs follow the events in the sense that although every litigant has a right to obtain an order as to costs, nevertheless he may waive it. Assessment of the amount allowed in terms of an award of costs is the responsibility of the court who determines what reasonable costs in the circumstances are. And when the court in exercise of its discretion orders the costs payable and does so without being capricious, i.e. in the sense that it is ordered in honest exercise of his discretion. The court’s discretion to order the costs payable may be circumscribed by both parties by making extra judicial arrangement as regards costs of the litigation. It is pertinent to recapitulate that in this case when respondent’s counsel asked for N5,521.00 as costs, appellant’s counsel, who were present did not register any objection, whereupon the learned trial Chief Judge awarded the amount asked by the respondent counsel, i.e. N5,521.00. Clearly, it is not fair or acceptable for appellant’s counsel to subsequently complain of the amount awarded by the trial Chief Judge when no opposition was raised by the appellant’s counsel when the order was made in open court. Indeed, in my judgment, the amount of costs asked for and awarded cannot be said to be exceptionally high or punitive as to hold that the courts discretion was capriciously exercised. Indeed, in our adversary system of jurisprudence, it would have been quite uneasy and unfair for the trial court, to as it were, enter into the arena and make a case for the reduction of costs payable while the opponent who was physically present remained indifferent and muted. It will therefore not be in the interest of justice to interfere with the amount of costs awarded by the trial court, if this point were to be pursued to its logical conclusion”.
Clearly, there was no basis for the intervention of the court below in interfering with the award of costs which was within the discretionary power of the trial court which it carried out as a follow up to the event of the litigation and judiciously made. See NNPC v Klifco Nig. Ltd (2011) LPELR-2022 (SC) Per Rhodes-Vivour JSC at Page 26; Anyaegbunam v Osaka (1993) 3 NWLR (Pt.294) 449; Obayagbona v Obazee (1972) 5 SC 247.
The issues herein are resolved against the respondent and in favour of the Appellant.
ISSUE 5;
Whether the Court of Appeal has jurisdiction to have considered the issue raised by the respondent herein to wit – appealing on ground of cost filed without leave of court.
For the appellant it was submitted that the ground of appeal at the lower court complaining against the award of costs was an incompetent ground having been set off without leave of court. He cited Section 241 (2) (c) of the Constitution and Governor of Eastern Nigeria v Onyelu (1965) All NLR 197 at 198 etc.
Learned counsel for the respondent stated that the award of N250,000.00 granted as legal cost by the trial court was not an award of cost but damages and so the matter was outside the purview of Section 241 (2) (c) of the 1999 Constitution for which leave to appeal on the ground was necessary.
The question herein raised has brought into focus Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria and sub-section (2) (c) thereof provides thus: –
“Nothing in this section shall confer any right of appeal –
(c) without the leave of the Federal High Court or High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only”. (Underlining mine).
On this issue of cost the Court of Appeal and the Apex Court have set the record straight thereof to the effect that an appeal complaining on the issue cost is not as of right. I shall cite a few of those cases for effect. See Governor, Eastern Nigeria v Onyelu (1965) All NLR 197 at 198 thus: –
“there is no power to make an order relating to costs in vacuo and such an order must always be linked to a judgment dealing with other rights of the parties but it is still a distinct order”.
See also Adeyemi v Awobokun 1968 All NLR 690 where the position in the Oyelu case was adopted intoto. The Court of Appeal lately in Asims Nig. Ltd v LBRBDA (2002) 8 NWLR (Pt.769) 349, held that “at any rate, Section 241 (2) (c) of the 1999 Constitution which corresponds with Section 220 (2) (c) of the 1979 (sic) constitution does not confer right of appeal on a party on issue of costs” Per Muhammad JCA (as he then was) at page 366, Para. D.
The Court of Appeal reiterated the same legal position in Unifam Ind. Ltd v Ocean Bank Int’l (Nig.) Ltd (2005) NWLR (Pt.911) 83 when it held that: –

“a successful party is generally entitled to the cost of the litigation. However, if a party is aggrieved by the order of a court of law as it relates to cost, he does not appeal as of right. He must first seek and obtain the leave of court before an appeal can be lodged against an order relating to cost” Per Aderemi JCA (as he then was) at page 102, paras. E-G. (Underlining mine).
Recently in Oketade v Adewunmi (2010) 3 (Pt.11) MJSC 31 where the appellant filed three (3) grounds of appeal (see page 39, paragraphs D-F thereof) the Supreme Court confirmed the above decisions of the Court of Appeal on the issue of costs when it held at page 42, paras. F-G and page 45, paras. C-E that: –
“it is trite that appeal does not lie as of right against an award of costs by a court. The cases of Unifam Ind. Ltd v oceanic Bank Int’l (Nig.) Ltd (2005) 3 NWLR (Pt.911) 83 at 102 and Asims (Nig.) Ltd v Lower Benue River Basin Dev. Authority (2002) 8 NWLR (Pt.769) 349 cited by learned counsel for the respondents are in point. I endorse the views ably expressed in both cases” Per Fabiyi 3SC at page 45.
The issue herein has been rested as the cases above cited show and so the Court of Appeal had no jurisdiction sequel to Section 241 CFRN to entertain the appeal on ground of legal costs without leave of either the trial court or of itself, the Court of Appeal. See Oniugbo v Nwekeson (1993) 3 NWLR (Pt.283) 533 at 546 (CA), A.C.B. v Okonkwo (1997) 1 NWLR (Pt.480) 194 at 207 (CA).
The issue is resolved against the Respondent.
ISSUE 6:
Whether the learned Justices of the Court of Appeal were right when they held that the appellant (respondent herein) is liable to play back to the respondent (appellant herein) the sum of $USD3,200 (Three Thousand, two hundred US Dollar) less the amount already paid to Mr. Dolor when the said Clement Dolor does not have the authority of the appellant herein to receive any money whatsoever on her behalf.
Learned counsel for the appellant contended that there was no ground at all warranting the Court of Appeal to imply that Mr. Clement Dolor acted as an agent of the appellant or applied for refund as an agent of the respondent. Also that there was no evidence led before the trial court that appellant purchased the ticket from Simba Travel and Tours or that Simba Travel and Tours is one and the same person as the appellant. He cited Edem v Canon Balls Ltd (2005) 12 NWLR (Pt.938) 27; Samuel Osigwe v PSPLS Management Consortium Ltd & Ors (2009) 3 NWLR (PL 1128) 378 etc.
In response, learned counsel for the respondent stated that it is trite that a disclosed principal in law is not bound by any act of his agent which is outside the agent’s implied or apparent authority unless the principal in fact authorised the agent to do the particular act as in the case at hand. He referred to Okwejimnor v Gbakeji (2008) 5 NWLR (Pt.1079) 172; Bamigboye v Unilorin (1991) 8 NWLR (Pt.207) 415, Jallco Ltd v Owoniboys Technical services (1995) 4 NWLR (Pt.391) 534.
The question herein raised brings up the matter of agency and the principle guiding agency is already trite in law. in the case of Okwejimnor v Gbakeji (2008) 5 NWLR (Pt.1079) 172 Mohammed JSC defined the concept of agency thus: –
“Agency is the relationship which exists or arises where one person called the agent has the authority or capacity to create legal relations by acting on behalf of another person called the principal, whereby the latter undertakes to be answerable for the lawful acts of the former provided it was done within the scope of the former’s authority, or ratified by the latter”. (Underlining mine).
In Bamigboye v Unilorin (1991) 8 NWLR (Pt.207) 415, the Supreme Court Per Akintan JSC held thus: –

“An agency is relationship exists only where a person called the agent has the authority to act on behalf of another called principal”.
In Jallco ltd v Owoniboys Technical Services (1995) 4 NWLR (Pt.391) 534. this honourable Court held that; –
“Under the doctrine of apparent or ostensible authority where a person by words or conduct represents to a third party that another has authority to act on his behalf, he may be bound by the acts of that other as if he had in fact authorized litem”.
The facts elicited from the evidence is that Mr. Dolor was the appellant’s agent for the purpose of obtaining a refund of American Airline ticket and was the agent of the appellant for the purpose of obtaining a refund of the Emirates ticket and so the court below was right when he held Mr. Dolor the agent of the appellant to whom a refund had been made on behalf of the appellant. Therefore, the court below was right to order the respondent to pay the sum of $3200 (Three Thousand, Two Hundred US Dollars) to the appellant after deducting the sum of $1774 (One Thousand, Seven Hundred and Seventy-Four US Dollars) already refunded to the agent of the appellant as the appellant being the principal could not establish that the agent acted outside the authority granted him.
This is a cut and dried issue which is resolved against the Appellant.
In conclusion save for the Issue 6 resolved against the Appellant, all the other issues are resolved in favour of the Appellant and so the appeal is allowed in that regard meaning in part except for the issue 6.
I abide by the consequential orders as made.

KUMAI BAYANG AKAAHS JSC: My learned brother, Eko JSC availed me before now his judgement, just delivered. He allowed the appeal on all the issues canvassed by the appellant, except issue 6. I am in agreement with the resolution of the issues in this appeal and wish to chip in a little on issues 4 & 5. The said issues were distilled from grounds 4 and 5 of the Notice of Appeal and they are as follows: –
“4. Whether the sum of N250, 000.00 awarded by the lower trial court as cost for the suit amounts to special damages and thus requires that there must be strict proof of same? (Ground Four)
5. Whether the Court of Appeal has jurisdiction to have considered the issue raised by the Respondent herein to wit-appealing on ground of cost filed without leave of court? (Ground Five).
The respondent’s issues 4 and 5 are materially the same as those framed by the appellant and I do not find it necessary to reproduce them. I wish to observe that the formulation of issue 4 at page 6 of the appellant’s brief related to what the trial court did but when learned counsel reproduced the issue at page 50 it was properly framed and it reads: –
Whether the learned Justices of the Court of Appeal were right to have set aside the sum of N250,000.00 awarded by the lower trial court as cost for the suit (Ground 4)
When the plaintiff/appellant instituted the action at the Federal High Court, Lagos in suit No. FHC/L/CS/5258/ 2008, she claimed the following reliefs in paragraph 33 of the Amended Statement of Claim: –
“33 WHEREOF, the plaintiff claims as follows: –
(a)A declaration that the refusal of the Defendant to carry the Plaintiff from Dallas-Houston-Dubai-Lagos on the international flight amounts to breach of contract of carriage by air.
(b)An order of this Court that the Defendant pays the sum of USD 3, 200 (Three Thousand, Two Hundred US Dollars/ being special damages or the cost of the alternative arrangement the Plaintiff made in buying the American Airline ticket from Dallos-F Worth. London-Gatwick-Lagos.
(c)An order for the payment of N10, 000,000.00 (Ten Million Naira) for the great anxiety, trauma and emotional stress caused to the Plaintiff and her family.
(d)An order for the payment of the sum of N1, 000,000.00 (One Million Naira) being the cost for instituting this action”
In his judgement delivered on 15 November 2010, Archibong J. found that the Defendant’s refusal to carry the Plaintiff from Dallas on the 17th December 2007 amounted to a breach of its contract of carriage with the Plaintiff and limitation to liability did not apply to the action. He then ordered that the ticket refund to the Plaintiff should be in full without any deduction or charge. He awarded N2.5million in general damages and N250, 000,00 legal costs (underlining mine for emphasis).

The Emirates Airlines felt aggrieved with the decision and appealed against it and the complaint in Ground 4 centred on the award of N250, 000.00 in legal fees awarded to the Plaintiff. I reproduce ground 4 with particulars (i)-(iv) as follows: –
“GROUND FOUR
The learned trial Judge erred in law when he awarded the sum of N250, 000.00 in legal fees when the Plaintiff claimed N1,000,000.00 but led no evidence in proof.
PARTICULARS
(i)Cost of legal fees are not awardable under Nigerian laws,
(ii)Cost of legal fees is in the nature of special damages and must be proved strictly.
(iii) The Plaintiff led no evidence of the cost of N1, 000,000 by the tendering of any document showing such payment.

(iv) There is no basis for awarding the head of claim when it was not proved strictly.
It is to be observed that the Plaintiff/Respondent at the Court of Appeal did not file Notice of preliminary objection challenging ground 4 but learned counsel for the respondent proceeded to formulate issue 4 raising the competency of the ground and the issue formulated there from. Despite the non-formal filing of a preliminary objection I am of the considered view that what respondent’s counsel did, gave the defendant/appellant notice of the challenge to the ground. Learned counsel filed a Reply Brief. Learned counsel argued that the One Million Naira which plaintiff claimed as “cost of instituting the action” and the award of Two Hundred and Fifty Thousand Naira as ‘legal cost” are one and the same and this includes legal or solicitor’s fees or cost which require strict proof; consequently, the ground does not require leave before it can be argued and relied on Civil Procedure in Nigeria 2nd Edition by Fidelis Nwadialo.
In resolving this issue the lower court held per lyizoba JCA at page 467 of the record: –
“The learned trial Judge had awarded N2.5 million damages and N250, 000 in legal costs without giving reasons for the award. In the circumstances it is right to assume that the N250, 000.00 legal costs were in lieu of the claim for one million naira costs of instituting the action. I agree with the view of learned counsel for the appellant in his reply brief that “costs of instituting the action” and legal costs'” mean the same thing and refer (sic) to cost incurred in instituting the action ……………………. the claim is for special damages and the law requires that there must be strict proof of same.”
Learned counsel for the appellant submitted that the learned Justices of the Court of Appeal were in error when they equated the N250, 000.00 awarded by the trial court as cost for the suit with special damages which requires strict proof. He pointed out that the claim put forward by the appellant at the trial for “an order for the payment of the sum of N1, 000,000.00 being the cost of instituting this action” was not for Solicitor’s fees as misconstrued by the Court of Appeal He also contended that the position of the law in this regard is that a successful party to litigation is entitled to be awarded costs except where she misconducts herself and the amount to be so awarded is at the discretion of the court. He cited the case of Haco Ltd v. Brown (1973) 4 SC (Reprint) 103 in support. He went further to submit that the discretion of the trial court in awarding cost is one in which the Court of Appeal ordinarily ought not to interfere with except and unless the award is manifestly excessive or too low and relied on Adim v. N.B.C Limited (2010) 9 NWLR (Pt. 1200) 543 at 561 and NITEL Ltd v. lkpi (2007) 8 NWLR (Pt. 1035) 96 for the submission.
The view held by learned counsel for the respondent is that the cost of N250, 000.00 awarded by the trial court and subsequently upturned by the Court of Appeal is one in the category of special damages that required the appellant to substantiate by adducing credible evidence in support. He said that the law on award of post-judgement cost is very clear which is to compensate the successful party and not meant to punish the unsuccessful party. He submitted that the legal cost awarded by the trial court was arbitrarily made and it was not a post-judgement cost and the court below was right in reversing it since it was meant to be a bonus and a punitive measure against the respondent. He advanced the argument that whether as legal fees, solicitor’s fees, cost of the action or cost of instituting the action, the claimant must lead evidence to show that such cost was incurred. The evidence led in support of “cost of the action” is given after judgement has been delivered wherein the successful party itemises his cost with proof and the court awards such cost as has been reasonably incurred.
RESOLUTION OF THE ISSUE
In a civil suit, a successful party is generally entitled to be compensated by way of cost, the amount of which the court has discretion to determine regardless of whether it was pleaded and/or proved. The fact that the trial court used the word “legal” to qualify the cost awarded makes no difference whatsoever. The trial court had discretion to take account of any or all expenses incurred by the appellant in awarding it so long as the rule permits in the instant case. The Federal High Court (Civil Procedure) Rules 2009 applied in awarding cost.
Order 25 Rule 2 (1) & (2) provides: –
“2-(l) In fixing the amount of costs the principle to be observed is that the party who is in the right is to be indemnified the expense to which he has been unnecessarily put in the proceedings, as well as compensated for his time and effort in coming to Court. The Judge may take into account all the circumstances of the case.
(2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of delivering the judgement or making the order.”
In the Book, ‘Civil Procedure in Nigeria’ 2no Edition by Fidelis Nwadialo at pages 879, the Author stated: –
“The assessment of costs is a matter in the discretion of the court of trial but the discretion must be exercised judicially and if not so exercised, the Court of Appeal would be entitled to interfere and set aside an unjustifiable award.” See: Chanrai & Co. Ltd v. K hawam (1965) 1 All NLR 188 at 196 and Nwadialor v. Onyia (1971)1 UILR 524.
The author went further to say at page 880: –
“The trail Judge should therefore show for what items he allowed costs and how much was allowed in respect of each. The Court of Appeal is thereby placed in a good position to review the costs if they are challenged on appeal. Where a trial court awards costs that are ex facie excessive but does not state his reason for so doing or gives a wrong reason or one for which no valid reason can be seen, the appellate court may reduce the costs'” See: Wurno v. U.A.C. (1956) 1 FSC 33; Ladega v. Akinbiyi (1975) 2 SC 91.
The appeal against the award of N250,000.00 as legal cost attacked the exercise of discretion by the trial court which advanced no reason whatsoever for the amount. The appellant before the Court of Appeal ought to have sought leave of that Court to raise and argue the issue. Without the leave the ground was incompetent. See: Section 241(2)(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides: –
“241(2) Nothing in this section shall confer any right of appeal –
(c) without the leave of the Federal High Court or High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only”.
I therefore agree with the learned counsel for the appellant that the learned Justices of the Court of Appeal failed to consider the discretionary power granted to the trial Judge to award costs. Ground 4 in the lower court was not a competent ground of appeal and the lower court lacked the jurisdiction to entertain it. Issue 5 in this appeal is therefore resolved in favour of the appellant.
It is for this reason and the more comprehensive reasons contained in the judgement of my learned brother, Eko JSC, that I too find merit in the appeal on issues 1-5 which are hereby allowed. I endorse the order made on costs in the leading judgement.
AMIRU SANUSI, JSC: I had the opportunity of reading before now; the Judgment prepared and delivered by my learned brother Ejembi Eko JSC, in this appeal.
I find myself in entire agreement with the reasoning and conclusion he arrived at in the said Judgment that this appeal has substance and deserves to be allowed. I adopt his reasoning and conclusion as mine and abide by the consequential orders made therein including one on costs,

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC: I have read in advance a copy of the judgment of my learned brother, EJEMBI EKO, JSC just delivered.

This resolution of the issues in contention in this appeal are comprehensive and in accord with my views in this appeal.
I adopt the reasoning and conclusion as mine. The appeal succeeds on issues 1-5 notwithstanding the resolution of issue 6 against the appellant. I abide by the consequential orders made in the lead judgment including the order for costs.

COUNSELS

DR. CHARLES MEKWUNYE with Ekene Nwonu, Esq., for the Appellant|OSAYOBA GIWA-OSAGIE, Esq., with Ikechukwu Odozor, Esq., for the Respondent|

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