SAUDI ARABIAN AIRLINES & ANOR v. JAHLIVE SADAKKA NIGERIA LIMITED (2018)

SAUDI ARABIAN AIRLINES & ANOR v. JAHLIVE SADAKKA NIGERIA LIMITED

(2018)LCN/12224(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of November, 2018

CA/L/56/2015

RATIO

COURT AND PROCEDURE: LIMITATION OF LIABILITY

“This Court had also held, per IYIZOBA, JCA inAFORKA’S CASE (supra) in relation to limitation of liability that: ‘The only way to escape the limitation of liability with respect to damage or loss of cargo is where the consignor at the time when the package was handed over to the carrier made a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that situation the carrier will be liable to pay a sum not exceeding the declared sum’. See IBIDAPO v LUFTHANSA AIRLINES (1997) 4 NWLR (PT 498) SC 124; CAMEROON AIRLINES v ABUL KAREEM (2003) 11 NWLR (PT 830) CA 1. CAMEROON AIRLINES v OTUTUIZU (2011) 4 NWLR (PT 1238) 512. PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A

JUSTICES

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

TOBI EBIOWEI Justice of The Court of Appeal of Nigeria

Between

1. SAUDI ARABIAN AIRLINES

2. NIGERIAN AVIATION HANDLING COMPANY PLC (NAHCO AVIANCE) Appellant(s)

AND

JAHLIVE SADAKKA NIGERIA LIMITED Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):

This is an appeal flowing from the judgment of the Federal High Court of Lagos coram YUNUSA, J delivered on the 30th day of October 2014 in favour of the plaintiff/Respondent.

The reliefs sought in the lower Court were;

1. An order directing the defendants to deliver to the plaintiff one 1) outstanding pallet on Airway bill 065-63754810 comprising of 480 (four hundred and Eighty) pieces of Nokia N-95 cell phone; being the undelivered part of a consignment of 12 pallets delivered to the 1st Defendant for carriage and consigned to the plaintiff but which was subsequently short ‘delivered to the plaintiff and has since not been delivered in spite of letters written to the defendants’.

ALTERNATIVELY IN THE EVENT OF LOSS OF THE PALLET

2. Payment of United States Dollars $317,880 being the total value for 480 pieces of Nokia N95 cell phone at the unit price of US$662.25; or, its Nigerian Naira equivalent of N47,999,880 (Forty Seven Million, Nine Hundred and Ninety Nine, Eight Hundred and Eighty Naira) at the prevailing exchange rate of N151 to one dollar.

3. Payment of N10,000,000 (Ten Million Naira) as general or exemplary damages for loss of use of money involved, inconvenience, embarrassment, and for taking no serious step to avoid this suit.

4. Payment of interest at the rate of 20% per annum on the sum claimed for the pallet until judgment and thereafter at the rate of 30% per annum.

5. N1, 050,000 (One Million, and Fifty Thousand Naira) being cost of legal action.

The summary of the facts; The twelve(12) pallets of 5760 pieces of Nokia N95 cell phones were deposited with the 1st Defendant in Chennai (India) to be carried and delivered in Lagos to the Plaintiff as the consignee. The plaintiff claimed he only received eleven (11) pallets. Plaintiff also claimed he paid for clearing for the twelve (12) pallets but only eleven (11) pallets were cleared.

The Defendant stated that the 1st Defendant received twelve (12) pallets for delivery but denied the content and loss of any part of the delivery. Dissatisfied with the decision the Defendants/Appellants appealed to this Court via Notice of Appeal on 19th December 2014 on 5 grounds (at pages 514-578).

The Appellant brief was prepared by I. Olutoba Akande Esq of Messers Akande & Akande Chambers. Wherein two issues were formulated thus;

I. Whether the lower Court was right when it directed the appellants to deliver 480 pieces of Nokia N-95 cell phones or pay its monetary value of US$317,800 to the Respondent notwithstanding that there was no finding of fact that Nokia N-95 cell phones were delivered to the 1st Appellant by the Respondent (grounds 1& 4)

II. Whether the lower Court was right when it directed the Appellants to delivered 480 pieces of Nokia N-95 cell phones or pay its monetary value of US $317,800 to the respondent, notwithstanding that there is nothing on the records showing that the Respondent made a special declaration in respect of the lost goods and that it paid a supplementary sum (if required) (grounds 2,3,& 5))

In the Respondent’s brief filed by I. Fubara Anga-Akinloye Ajayi of Aelex Law Firm, two issues for determination were formulated as follows:

i. Whether the plaintiff is not entitled to judgment having proved breach of contract when it established that the Defendants failed to deliver complete 12 pallets to the plaintiff in accordance with the contract.

ii. Whether the defendant can limit their liability by relying on exclusion clause/limiting terms?

The issues of parties are interwoven and the resolution of one will delve into another, in that right it is safer to adopt the Appellant’s issues, which will encompass the Respondents issues. I shall take the two issues as one

SUBMISSIONS OF COUNSEL

The Appellant submitted that the bone of contention was whether the Appellants delivered the goods by the Respondent to the 1st Appellant for carriage from India to Nigeria. The Respondent had claimed that the consignor handed over twelve (12) pallets of Nokia N95 cell phones to 1st Appellant for carriage while the Appellant claimed that what was handed to them for carriage were marked as ‘twelve (12) pallets of transmission apparatus. He contended that exhibit AB3 air waybill incorporating conditions of contracts tendered by both parties were described in the column for nature and quantity of goods as TRANSMISSION APPARATUS also so described in the cargo manifest Exhibit D2 and therefore the claim before the Court was for N95 Nokia phones and not Transmission Apparatus, and no finding was made by the lower Court. He referred to ARCHIBONG v ITA [2004] NWLR (PT. 858) 590; OGBIRI v NAOC LTD [2010] 14 NWLR (PT. 1213) 208 that the claim ought to be dismissed for insufficient proof of the contents.

He further relied on J.E. OSHEVIRE LTD v TRIPOLI MOTORS (1997) 5 NWLR (PT 503) 1. He urged the Court to hold that Respondent is not entitled to claim 1 or 2 and that secondly; prayer 1 ought not be granted as there was no finding that the missing Phones were in their possession.

The Respondent submitted that there was proof of existence of a contract between parties, and that this was agreed in the pleadings; he referred to paragraphs 5, 6, & 7 of the claim and paragraphs 1, 6, 7, & 8 of Defendant?s statement of defence. He relied on NIGERIAN BOTTLING COMPANY v STEPHEN OBOH (2000) 11 NWLR (PT 677) 212; BALOGUN v YUSUFF (2010) 9 NWLR (PT 1200) 515.

The plaintiff pleaded that consignment comprised of 12 pallets and the contents of the twelve (12) pallets were 576 pieces of Nokia N95 cell phones. He tendered Exhibit AB1 PG 481 of record and Exhibit AB2 to prove contents of twelve (12) pallets which stated that the contents of pallets are 576 pieces of N95 cell phones. And the invoice states the unit price as USD.662.25 and totaled USD. 3,814,560.00.

Appellant cited NUVO ELECTRONICS INC v LONDON ASSURANCE & ORS (2000) 49 O.R. (3D) 374, that the invoice remains the most authentic and admissible document to prove cost of goods, he referred to Import Guidelines, procedures and Documentation requirements under the Destination inspection scheme in Nigeria states the documents required to accompany importation of goods into Nigeria.

He relied on CAMEROON v OTUTUIZU (2011) ALL FWLR (PT. 570)1260, YISI NIG LTD v TRADE BANK PLC (2013) 2-3 MJSC (PT. IV), OKOSUMAKEDE v BRITISH AIRWAYS (2009) 3CLRN P 418. He referred paragraphs 4 & 6, of the claim, Exhibit AB1 & 2, 3, 4 described the goods as Nokia N95 cell phones.

Respondent submitted on breach of contract that Exhibit AB12 – 14 all show that it was 11 pieces/pallets that arrived and 1 pallet was short shipped. He referred to Exhibit D2 cargo manifest showing different versions that only 11 pallets landed and the hand written version was altered to release twelve (12) pallets and if accepted then it has resulted in a contradiction in the defence, and further that it was released to NACOH Shed- 2nd Defendant. Exhibit AB3 waybill shows that eleven (11) pallets were released to Plaintiff, Exhibit AB5 shows invoice of twelve (12)pallets paid but eleven(11) pallets weighing 1353.9kg was released, this was confirmed by Exhibit AB12 and 13. He relied on ODULAJA v HADDAD 1973 11 SC 35; NWABUOKU v OTTIH (1961) 2 SCLR 232, YISI NIG LTD v TRADE BANK LTD (SUPRA).

On the liability arising from the breach he submitted that Section 18(1)-(4) of the Montreal convention applied. He referred to CELSON IND LTD v EGYPT AIR (2010) 4 CLRN 240, LAWSON v CHINA SOUTHERN AIRLINES COY LTD (2010) 1CLRN 286. He referred to Articles 13 & 14 of the Montreal convention and submitted that the defendants breached the contract and are liable and cited SUNLEY & COMPANY v CUNARD WHITE STAR LTD (1939) 2KB 791 at 788; BRITISH AIRWAYS v ATOYEBI (2010) 14 NWLR (PT. 1214) Pg 605 para. He submitted that the cargo was with the 2nd Defendant and was there and handed over to the consignee.

On the second issue, the Appellant submitted under two broad headings that (i) the effect of failure to make a special declaration and pay a supplementary sum under the Montreal Convention (MC99). He submitted that the contract was governed by MC99 but the Court failed to appreciate the purport of the applicability by awarding damaged and giving directives on wrong principles.

Appellant referred to Article 18 of the MC99 which make the carrier liable for damage sustained in the event of loss of cargo provide it took place during carriage by air and Article 22 which sets limits of the liability of the carrier in (3) & (4) and stated that there was no such declaration made as demanded herein and therefore they fall under limited liability. He referred to Notice concerning Carriers liability in Exhibit D1 in Articles 1, 2 & 6 therein and Articles 22 (3) of MC99.

The Appellant contended that the Court failed to follow factors set out in Article 22(3) of MC99. He relied on CA/L/285/2011 EMIRATE AIRLINE v TOCHUKWU AFORKA delivered Friday 11th April 2014 LPELR – 22686 on proof of special declaration to guide the Court in an award under the MC, and that failure to do this, will not entitle a claimant escape the limitation liability with respect to damage or loss of cargo, hence in this case the claim should be dismissed. He also relied on ODUNZE v NWOSU (2007) 13 NWLR (PT. 1050) 46.

The Appellant contended in the alternative that, under the MC what the damages the respondent would have been entitled to had the Court applied the limited liability of MC. That based on the evidence adduced before the Court the total monetary value of the lost cargo would have been US$25.66 X 123.1KG US$3.158.74. He explained this based on the weight of 12 pallets which is 1,477 and the weight of 1 would be total divided by 12 which is 123.1kg and the rate under MC is 17SDR PER KILO he referred to Article 23(1) of MC which when converted to dollars from the web site as at date of judgment 17 SDR ? US$25.66 X 123,1 = US$3158.74 .

He urged that the award be set aside and the MC rates be applied. That the appeal be allowed and part of the judgment be set aside accordingly.

Responding on question as to whether the defendant can rely on exclusion clause/limiting terms, the Respondent’s counsel contended that there was a fundamental breach that limitations clause cannot be relied on. He cited IMNL v PEGOFOR (2005) 15 NWLR (PT 947) 1; DHL INT NIG LTD v UDECHUKWU CHIDI (1994) 2 NWLR (PT. 329) 720; NIGER INSURANCE LTD v ABED BROTHERS (1976) 6; UILR A9PT 61; PHOTO PRODUCTION LTD v SECURITIES LTD (1980) AC; KRSALE HARRON LTD v WALLIS (1956) 2 ALLER 866; AGIP NIG LTD v AGIP TROLI INT (2010) 1 CLRN 1425-35; NIGERIAN LNG LTD v AFRICAN DEV INS CO LTD (2005) 8 NWLR (PT. 416) 677; COL KALIEL RTD v ALH ALIERO (1999) 4 NWLR (PT 597); ACHU v CSS, CROSS RIVER STATE (2009) 3 NWLR (PT 1129) 475 that having failed to show how Article 24 of MC99 were complied with they could not take its benefits.

Respondent further contended that a negligent party cannot rely on an exemption clause to absolve itself from liability. He relied on PRICE AND CO v THE UNION LIGHT TRANCE CO 1904 1BB 4R; FBN PLC v ASSOCIATED MOTORS CO LTD (1998) 10 NWLR (PT. 570) 441; OWNERS OF GONGOLA HOPE v SC NIG LTD (SUPRA) 207. Respondent lastly submitted that the MC is not a talisman for commission of fraud or negligent conduct. Business concerns with bonafide claims borne out of fundamental breaches should not be allowed to suffer unduly.

RESOLUTION

The first question to be considered is whether there was indeed a finding that the Nokia N-95cell phones were delivered to the 1st Appellant by the Respondent? At page 565 of the record of appeal the lower Court held:

“In any case the defendants have admitted that 12 pallets were delivered to it, whether it was NOKIA N-95 or transmission radio, the fact remains that it was a complete consignment that was delivered to plaintiff as such there was an existing contract to the delivery of 12 pallets but at the end of the day one was yet to be delivered as such an enforceable contract was breached”.

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

4. The Plaintiff entered into a contract of carriage by air with the 1st Defendant to carry twelve (12) pallets of 5760 pieces of Nokia N95 cell phone from Chennai, India to Lagos, Nigeria.

5. On or about 7th May 2010, twelve (12) pallets were delivered to the 1st Defendant as a carrier by Nokia India PVT Limited. Each of the pallets contained 480 pieces of Nokia N95 cell phone.

6. Consequent to paragraph 4 above, the consignment was delivered to the 1st Defendant and it comprised of twelve (12) pallets containing a total of 5760 pieces of Nokia cell phone as shown on invoice number 920417240 dated 16th April, 2010 and Packing List number 920417240 dated 11th April, 2010. The Plaintiff shall rely on copies of the Invoice number 920417240 and the Packing List at the trial of this suit.

7. The 1st Defendant in furtherance of the contract issued on Air Waybill number 065-63754810 dated 07/05/2010 in which Nokia India PVT Limited was named as the consignor and the Plaintiff as the consignee. The Plaintiff shall rely on copy of Air Waybill number 065-63754810 at the trial of this suit.

8. The Plaintiff avers that the relevant Form M number MF 1234283 concerning this carriage was registered with First Bank of Nig. Plc. The Plaintiff shall rely on copy of Form M number MF 1234283 at the trial.

9. The Plaintiff avers that upon arrival of consignment in Lagos, only eleven (11) pallets were cleared and delivered by the 2nd Defendant to the consignee represented by Mr. Sule Oladejobi after ‘Clearing on Arrival’ (COA) based on Invoice no: 180220440 dated 05/06/2010 issued by the 2nd Defendant. The Plaintiff shall rely on copy of the invoice during the trial suit.

10. The 1st Defendant gave the impression that only 11 pallets arrived by upon oral complaint of shortage by the Plaintiff, the 1st Defendant promised that the remaining pallet would soon arrive.

11. The Plaintiff avers that it was later discovered from the relevant tally documents/report that all the total twelve (12) pallets actually arrived. The Plaintiff shall rely on relevant tally documents and report at the trial, including the Tally sheet, which is in the possession of the Defendants. Notice is hereby given to the 1st and 2nd Defendants to produce these documents.

Whereas, the Appellants averred as follows:

2. The Defendants admit paragraph 1, 2, 3, 7, 11 and 12 of the Statement of Claim.

6. The Defendants admit paragraph 4 of the Statement of Claim only to the extent that the Plaintiff entered in a contract of carriage by air with the 1st Defendant to carry twelve (12) pallets of transmission apparatus with Airway bill No 065-63754810 from Chennai, India to Lagos, Nigeria and wholly deny all other averments therein and put the plaintiff to the strictest proof thereof.

7. The Defendant admits paragraph 5 of the Statement of claim only to the extent that on or about 7th May 2010 twelve (12) pallets were delivered to the 1st Defendant by Nokia India PVT Limited and wholly deny all other averments therein and put the Plaintiff to the strictest proof thereof. Eleven (11) of the pallets contained transmission apparatus of 118x82x73 diementions; while one (1) of the pallets contained transmission apparatus of 76x46x73 dimensions; (hereinafter called ‘cargo?) The Defendants shall rely on the Air Way bill No 065-63754810 dated 7th May 2010 and 1st defendant cargo Manifest dated 17th May 2010at the trial.

8. The Defendant admit paragraph 6 of the statement of Claim only to the extent that twelve (12) pallets were delivered to the 1st defendants and wholly deny all other averments therein and put the Plaintiff to the strictest poof thereof. The Defendants deny that the said invoice and packing list relates to the transaction between the plaintiff and the 1st Defendant.

9. The Defendant deny paragraph 8 of the statement of Claim and state that they are not parties to the Form M No MF 1234283. The Defendant aver that the form M has no contention to or relation with the carriage by air of twelve 12(12) pallets of transmission apparatus herein.”

The Appellants’ witness, a Manager for Medview Airlines, representatives of Saudi Arabian Airlines at page 282 of the record of appeal, stated as follows:

“Twelve pallets arrived for the consignees attention; Exhibit 13 is a sort of tallying in report issued by the 2nd Defendant. In Exhibit 13 eleven pallets were indicated as having arrived and received. I have seen Exhibit B2 which the cargo manifests. On the manifest it is 12 pallets. At the time of clearing, we have twelve 12 pallets available. Twelve (12)pallets were released to the plaintiff. Exhibit D1 container FORM M number. Exhibit 12 was issued by the 2nd Defendant that eleven (11)pallets were released to the plaintiff… The Tally officer of the 1st defendant inscribed 11 pallets.”

It is not in dispute that there was an agreement between the Appellants and the 1st Appellant for contract of delivery from all Exhibits tendered therefore the contention of the Appellant that the actual items delivered was transmission apparatus or phones is not important here from the exhibits they both knew what was to be delivered. Exhibit AB1 & 2 indicated Nokia N95 at page 380 of the record while in Exhibit D2, 11/12 means 11 was found.

The Respondent from the time of collection complained of short landing of one (1) pallet. The sole witness for the Appellants stated clearly under cross-examination that the 1st Defendant is the carrier while 2nd Defendant handles the cargo from upon arrival till warehousing and final delivery to the consignee he has a supervisory role to play for the 1st Defendant. Exhibit D2 is the cargo manifest listing all cargo on board the aircraft and it is used to tally the cargo on arrival. It says 11/12 and this was endorsed by Nigerian Customs. He agreed that the 2nd Defendant issued discrepancy report to 1st Defendant, the document shows any short shipment. He had nothing to show that eleven (11) pallets were delivered.

In my view, the lower Court correctly evaluated the evidence on record. Exhibit AB12 emanating from the 2nd Appellant is clear. It revealed and confirmed that indeed ?that 11 pieces out of 12 pieces weighed 35kg on arrival and 01 piece was short shipped but clearing payment was for twelve (12) pallets weight of 1,477kgs, in anticipation that remaining 01 piece will arrive next day”. See pages 493 and 494 to 496, of the record of appeal. Item 7 therein has the Airway Bill No and records that 11 pieces were carried.

Having found that there was proof that twelve (12) pallets were handed over to be air-shipped to Nigeria and only eleven (11) pallets were received by Respondent. The question to be considered is which law governs the liability of the Appellants herein. It is of note that after the WARSAW CONVENTION was abrogated, the applicable legal regime is the MONTREAL CONVENTION 1999 (MC99) which was domesticated in Nigeria under CIVIL AVIATION ACT 2006. Therefore the focal point is whether the case falls under the exclusion of liability of carrier under Article 18, 19 and 22 of the MC99 provides thus:

18. (1) The carrier is liable for damages sustained in the event of the destruction or loss of, damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air.

(2) However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following:

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

(b) defective packing of that cargo performed by a person other than the carrier of its servants or agents;

(3) The carriage by air within the meaning of paragraph 1 of this Article comprises the period during which the cargo is in the charge of the carrier.

(4) The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. If however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transshipment, any damage which is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. If a carrier, without consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to the carrier by air, such carriage by another mode of transport is deemed to be within the carriage by air.

19. The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

20?.

21?.

22. 1. In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4150 United States dollars.

2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage, or delay is limited to 1000 United States dollars for each passenger unless the passenger has made, at the time when the checked baggage was handed over the carrier, a special declaration of interest in deliver at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination.

3. In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 20 United States dollars per kilogram, unless the consignor has made, at the time when the package was handed over the carrier, a special declaration of interest in delivery at a destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination.

4. In the case of destruction, loss, damage or delay of part of the cargo, or of any object contained therein, the weight to be taken into consideration in determination the amount to which the carrier’s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the destruction, loss, damage of a part of the cargo, or of an object contained therein, affects the value of other packages covered by the same air waybill, or the same receipt or, if they were not issued, by the same record preserved by the other means referred to in paragraph 2 of Article 4, total weight of such package or packages shall also be taken consideration in determining the limit of liability.

5. The foregoing provisions of paragraph 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servant or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.

6. The limits prescribed in Article 21 and in this Article shall not prevent the Court from awarding, in accordance with its own rules of procedure in addition, the whole or part of the Court costs and of the other expenses of the litigation incurred by the Plaintiff, including interest. The foregoing provision shall not apply if the amount of the damages awarded, including Court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the Plaintiff within a period of six months from the date of the occurrence causing the damage, of before the commencement of the action, if that is later.

A review of the facts and argument of counsel reveals that this case falls solely within liability of the Appellant carrier and extent of compensation for damages with respect to cargo and no more. While Article 17 of the Montreal Convention establish that the carrier is liable for damage sustained, in case of an accident causing the death or bodily injury of a passenger on board the aircraft or in the course of embarking or disembarking as well as in case of destruction or loss of, or of damage to, baggage while in the charge of the carrier, Article 18 establish that the carrier is liable for damage sustained in the event of the destruction or loss of, or damage to cargo during carriage and Article 19 establishes that the carrier is liable for damage occasioned by delay.

Generally, the liability of a carrier under MC99 is subject to certain limits. See HALSBURY LAWS OF ENGLAND (2003), 4th Edition, VOLUME 2(3), pp 590 – 591. Article 22 limits the liability of carrier in the case of damages for the loss of cargo. Ipso facto, Article 22(3) mandatorily states that unless the consignor, at the time when the cargo was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires, the liability of the carrier in the case of destruction, loss, damage or delay in the carriage of cargo shall be limited to a sum of 17 Special Drawing Rights per kilogram. Where a special declaration is made by the consignor at the time of delivery of the cargo to the carrier, the latter will be liable to pay a sum not exceeding the declared sum.

The only exception is where it is proven that the sum is greater than the consignor’s actual interest in delivery at destination of the cargo. On the other hand, Article 22(4) clearly states that the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package(s) concerned.

Meanwhile, Article 29 of MC99 is categorical on the basis of claims under the Convention. It states:

“In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”

The key provision at the core of the Montreal Convention’s exclusive set of rules for liability is Article 29. This provision makes clear that the Montreal Convention provides the exclusive recourse against airlines for various types of claims arising in the course of international carriage by air. Article 29 establishes that in relation to claims falling within the scope of the Montreal Convention, ‘any action for damages, however founded’ may only be brought subject to the conditions and such limits of liability as are set out in this Convention. See THIBODEAU v AIR CANADA [2014] 3 S.C.R 340.

The Respondent has proved that the loss was from the carriage of the cargo and in unexplainable circumstances it landed short of one pallet between the aircraft and before customs inspection who endorsed the discrepancy of 11 found instead of 12. After discharging the burden resting on it to show that in accordance to the terms of the contract, eleven (11) pallets were delivered, the burden shifts to the Appellant to provide the proof of actual lifting and delivery and receipt by the Respondent of twelve (12) pallets.

In EMIRATE AIRLINE v AFORKA (2014) LPELR 22686 (CA) this Court, per IYIZOBA, JCA, said:

“Provisions of the Montreal Convention are in the Second Schedule of the Civil Aviation Act 2006. Article 29 of the Montreal Convention 1999 provides: “In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring the suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”

Article 22 (3) of the Montreal Convention 1999 provides: 22(3) In the carriage of Cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 special Drawing Rights per Kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination.”

With respect to the liability of a carrier regarding acts and omission of the Appellant carrier, its servant or agent; the provision of Article 22 (3) and (5) of MC99 leaves no one in doubt as to the scope of its liability. For the purpose of emphasis, Article 22(5) reads:

The plaintiff during their cross-examination and in their statement of claim and reply did not aver to special declaration of the items, their value and the payment at the point of presenting the cargo, thereby falling under liability limitation of the MC99. In the case of SOUTH AFRICAN AIRLINE v UBANI CA/L/670/016 delivered by this Court, per TOM YAKUBU, JCA on 18/10/2018, the Court held:

“It is therefore clear that it is only when a passenger can prove that at the time of handing over the goods to the carrier, he specially declared the value and paid supplementary sum. Article 18 makes the carrier liable without much ado but then qualifies the liability by providing limitations in article 22(3) MC99.”

This Court had also held, per IYIZOBA, JCA inAFORKA’S CASE (supra) in relation to limitation of liability that:

“The only way to escape the limitation of liability with respect to damage or loss of cargo is where the consignor at the time when the package was handed over to the carrier made a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that situation the carrier will be liable to pay a sum not exceeding the declared sum”.

See IBIDAPO v LUFTHANSA AIRLINES (1997) 4 NWLR (PT 498) SC 124; CAMEROON AIRLINES v ABUL KAREEM (2003) 11 NWLR (PT 830) CA 1. CAMEROON AIRLINES v OTUTUIZU (2011) 4 NWLR (PT 1238) 512.

The respondent pleaded negligence in its Statement of Claim and the Appellant averred in paragraph 11 of its reply brief that the liability limitation does not apply. I beg to differ. Again, in the AFORKA’S CASE (Supra), IYIZOBA, JCA had this to say on the MC99:

“The concept of negligence or willful misconduct obviously cannot work in the case of loss of cargo. It is difficult to prove willful misconduct as the Plaintiff is not in a position to know how the loss came about and no help is likely to come from the carrier in that regard. That must be why carriage of cargo was excluded in the provisions. It appears the position may have been different under the Warsaw Convention because there are decided authorities where negligence and willful misconduct were considered in cases of loss of cargo? From the exclusion of negligence and willful misconduct in the case of carriage of cargo in Article 22(5) and Article 30(3) I am of the firm view the Montreal Convention did not intend that those concepts should affect the limitation of liability with respect to carriage of cargo.”

AUGIE, JCA (now JSC) on object of the MC99 on air carrier liability had this to say in the AFORKA’S CASE:

“The Montreal convention 1999 (Convention for the unification of certain Rules for International Carriage by air) is a multilateral treaty adopted by diplomatic meeting of the international civil aviation Organization (ICAO) Member states in 1999, which attempts to reestablish uniformity and predictability of the rules relating to international carriage of passengers, baggage and cargo. Article 29 of the said convention provides: “In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring the suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.” THE OBJECT OF AN INTERNATIONAL TREATY LIKE THE Montreal convention is to provide a uniform international code in areas that it covers. see CAMEROON AIRLINES v OTUTUIZU (2011) 4 NWLR (PT 1238) 512.

See also EMIRATE AIRLINES v MISS PROMISE MEKWUNYE (2014) LPELR -22685 (CA) at 52 – 53, para D – C. Without doubt, the applicable legal regime does not accommodate any non-compensatory damages or other extraneous claims unless there is a special declaration of interest when the package was handed over (and payment of supplementary sum).

Therefore in the light of the stark reality of the application of MC99 to this appeal, the applicable rate is limited to 17 Special Drawings Rights (SDR) per kilogram.

In the instant case, the total weight of twelve (12) pallets was 1477kg and this can be gleaned from page 50 of the record evidencing the letter of 2nd Defendant written to the Plaintiff and the weight of the 11 pallets received was put at 1353kg This Court recall that evidence was led and tendered that clearing was paid on twelve (12) pallets in anticipation that twelve (12) pallets expected will be cleared and received.

Therefore the simple arithmetic in calculating the sum due to the Respondent is to take into consideration the weight of the lost package which will be gotten by subtracting the weight of the 11 pallets -1353kg – from the total 12 pallets delivered – 1477kg. Thus, the weight of the lost pallet is calculated to be 124kg.

As to the extent of liability of the carrier, the value of 17SDR as defined by the International Monetary Fund (IMF) in US Dollars as at the date the judgment of the lower Court was delivered will be multiplied by the weight value of the cargo, subject matter of dispute. As at the 30th day of May, 2014 when the judgment being appealed against was delivered, the value of One (1) SDR equals US$1.480780. See the conversion table accessed on the website of the International Monetary Fund accessible at https://www.imf.org/external/np/fin/data/rms_ sdrv.aspx which reflects as follows:

Thursday, October 30, 2014.

Currency Unit Currency amount under Rule O-1 Exchange rate 1 U.S. dollar equivalent Percent change in exchange rate against U.S. dollar from previous calculation

Euro 0.4230 1.25850 0.532346 -1.155

Japanese yen 12.1000 109.02000 0.110989 -0.807

U.K. pound 0.1110 1.59860 0.177445 -0.807

U.S. dollar 0.6600 1.00000 0.660000

1.480780

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

SDR1 = US$ 1.480780 4

Thus, by the above computation 17SDR (multiplied by US$1.480780 being value of 1SDR) will be US$25.17326. As the evidence has shown the lost pallet to weigh 124kg, the implication is that the Appellants are liable to the Respondent as per the value of 124kg multiplied by US25.17326, which is US$ 3,121.48424.

The lower Court after recognizing in its judgment the applicability of the MC99 erred by granting Reliefs 1 & 2 of the writ of Summons. The learned trial judge was wrong by not applying the rule relating to limited liability provided in the MC99, when he granted the full cost of the lost items.

As a result, I find merit in this appeal. The judgment of the lower Court, coram YUNUSA, J., is hereby set aside. In its place, I make the following orders:

1. The sum of US$3,121.484.24 is awarded as damages for loss of one pallet of Nokia N-95.

2. There shall be interest on the said sum at the rate of 10% from date of judgment of the lower Court, being 30th October, 2014 until final liquidation of the judgment debt.

Parties to bear their respective costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft the leading judgment of my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA, which has just been delivered.

I entirely agree with, and I do not desire to add to the reasoning and conclusion in the leading judgment on the applicability of the stipulations of Article 22 Of the Montreal Convention 1999 in the diacritical circumstances of this matter.

On account of the said reasoning and conclusion, I equally allow the appeal on the same terms contained in the leading judgment.

TOBI EBIOWEI, J.C.A.: I had the privilege of reading the draft of the lucid judgment just delivered by my learned brother, Obaseki-Adejumo, JCA. His lordship has adequately and sufficiently identified the issues involved in this appeal and resolved same. Obaseki-Adejumo, JCA has covered the field and I have nothing to add.

Appearances:

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

Olutoba Akande.For Respondent(s)