TURKISH AIRLINES v. AL – UMA VENTURES LTD (2022)

TURKISH AIRLINES v. AL – UMA VENTURES LTD

(2022)LCN/16520(CA)

In the Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/L/387/2013

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Between

TURKISH AIRLINES APPELANT(S)

And

AL – UMA VENTURES LTD RESPONDENT(S)

RATIO

THE POSITION OF LAW ON HOW TO SIGN ORIGINATING AND OTHER COURT PROCESSES

THE POSITION OF LAW WHERE A LEGAL PRACTITIONER PURPORTS TO SIGN COURT PROCESSES ON BEHALF OF ANOTHER LEGAL PRACTITIONER

In the same vein, it is the law that where a Legal Practitioner purports to sign a Court process on behalf of another Legal Practitioner, the identities of that Legal Practitioner and the person he represents or signs for, must be made manifest on the process so signed. The names of the two Legal Practitioners must be disclosed on the process, in addition to the signature. Bage, JSC, restated this position of the law in the case of Arueze & Ors vs. Nwaukoni (2018) LPELR-46352 (SC) at page 11 of the Report, as follows:
“The cases of Okafor vs Nweke (supra) Oketade vs Adewunmi (supra) FBN Plc v. Maiwada (supra) cited above have settled the matter with satisfactory finality, to the effect that the proper procedure for signing on behalf of somebody else is to disclose the name and identity of the person who signed and for whom it was signed if signed on behalf of another person in chambers- the two names must be disclosed. I can’t agree less with the Respondent that the originating process, the Amended Statement of Claim No. 3 was defective as issued. This goes to the jurisdiction of this Court to entertain this appeal.” PER SIRAJO, J.C.A.

WHETHER OR NOT PROCESSES PREPARED AND FILED BY A LEGAL PRACTIONER, WHICH HAS NOT BEEN SIGNED BY THE LEGAL PRACTITIONER IS COMPETENT

Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation, 2004, have received frequent and consistent judicial interpretation such that it is now well settled that a process prepared and filed in a Court of law by a legal practitioner, which has not been signed by the legal practitioner, is incompetent; Okafor v. Nweke (2007) LPELR-2412(SC); First Bank of Nigeria Plc v. Maiwada (2012) LPELR-9213(SC); (2012) 5 SC (Pt. 111) 1 SLB Consortium Ltd v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317; (2011) LPELR-3074(SC); Okarika V. Samuel (2013) LPELR-19935(SC); Oketade v Adewunmi (2010) 8 NWLR (Pt. 1195) 63; SPDC Nig Ltd v Sam Royal (Nig) Ltd (2016) LPELR-40062(SC); Okpe v. Fan Milk PIC & Anor (2016) LPELR-42562(SC); Williams & Anor v. Adold/Stamm International Nigeria Limited & Anor (2017) LPELR-41559(SC); GTB v. Innoson Nigeria Ltd (2017) LPELR-42368(SC); Arueze & Ors v. Nwaukoni (2018) LPELR-46352(SC); Akinsanya & Anor v. Federal Mortgage Finance Ltd (2010) LPELR-3687(CA); Igiriga v. Bassey (2013) LPELR-20346(CA); N.N.P.C. v. Roven Shipping Ltd (2014) LPELR-22140(CA); Kpezanyashi & Ors v Jezhi & Ors (2018) LPELR-44402(CA); Ewukoya & Anor v. Buari & Ors (2016) LPELR-40492(CA).
See also the recent affirmation of this position of the law by the apex Court in Ajibode & Ors v Gbadamosi & Ors (2021) LPELR-53089(SC); Ojikutu & Ors v. Kuti & Ors (2021) LPELR-56231(SC); Skypower Express Airways Ltd v. UBA Plc & Anor (2022) LPELR-56590(SC); Yongo & Ors v. Hanongon & Ors (2022) LPELR-57282(SC).
The failure of the Respondent’s Counsel to sign the Motion for Judgment of 12/9/2012, upon which the default judgment on appeal was entered, was a defect that impacted on the jurisdiction of the lower Court to entertain the matter. Jurisdiction is always a threshold issue, for when the Court has no jurisdiction to entertain a matter, the proceedings are a nullity, no matter how well conducted and brilliantly decided they may have been: Lakanmi v Adene (2003) LPELR-1750(SC); Ekulo Farms Ltd v UBN Plc (2006) LPELR-1101(SC); Obaba v Military Governor of Kwara State (1994) LPELR-2147(SC). PER SIRAJO, J.C.A.

MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgment): As Plaintiff, the Respondent took out a Writ of Summons from the Federal High Court, Lagos Judicial Division, claiming against the Appellant, as Defendant, the reliefs hereunder stated:
1. The sum of N3,045,000 (Three Million Forty-Five Thousand Naira Only) being the value of the goods the Defendant was contracted to convey from Lagos to Glasgow which the Defendants failed to/or refused to deliver to the Plaintiff.
2. Special Damages to the tune of N139,140 (One Hundred and Thirty-Nine Thousand, One Hundred and Forty Naira) comprising
a. Cost of freight – N109,140
b. Duties charged – N30,000
N139,140
3. General Damages to the tune of N10,000,000 (Ten Million Naira)
a. For loss of revenue or expected revenue.
b. Los of patronage, goodwill and clientele who were disappointed for non-delivery of their cargo.
4. The sum of N150,000 (One Hundred and Fifty Thousand Naira) being the cost of litigation.
5. Cost.

The originating processes were filed on 04/07/2012 and they occupied pages 1–21 of the Record of Appeal.

The facts giving rise to the suit, which was founded on contract of carriage of cargo by air, is straight forward and amenable to brevity. It goes as follows: On 24th December, 2011, the Respondent approached the Appellant, a foreign Airline who operates cargo services, to convey 182kgs of Hair attachments from Lagos to one Emile Musanbuku, a customer in Glasgow, United Kingdom. Upon the agreement of the parties to the terms of the contract, the Respondent paid the entire freight and other duties charged by the Appellant for the services to be rendered. The Appellant, however, failed to deliver the consignment of goods to the Respondent’s customer in Glasgow or return same to Lagos. The Appellant did not also return to the Respondent the value of the goods and all incidental expenses incurred, despite demands to that effect, through correspondences, which were not responded to by the Appellant. Numerous meetings, telephone calls, entreaties, etcetra, did not yield any positive result, hence the Respondent’s resort to the Court.
On 21/09/2012, the Respondent, as Plaintiff, filed a motion for judgment before the lower Court on the ground that the Appellant, though duly served with the Writ of Summons, Statement of Claim and all the frontloaded processes, has defaulted and/or failed to enter appearance or file a defence to the claim. The said motion is domiciled at pages 22–39 of the Record of Appeal.

The Appellant, as Defendant, filed a motion on notice before the lower Court for extension of time within which he may file his Memorandum of Conditional Appearance as well as for a deeming order. The application, together with the Memorandum of Conditional Appearance can be found at pages 40–53 of the Record. It was dated 14/11/2012, but filed on 04/12/2012. A day after filing the first application, the Appellant filed another application on 05/12/2012 seeking for an order setting aside the motion for judgment filed by the Respondent for being incompetent on the ground that it was signed by an undisclosed person on behalf of the Plaintiff’s counsel, Chief Emmanuel Chukwurah, without the identity of the person who signed it being disclosed. Pages 54–63 of the Record contains that application. A day after the filing of the second application, precisely on 06/12/2012, the Appellant filed yet another application praying for an order setting aside the purported service on it of the originating processes in the suit. See pages 64–77 of the Record.

When the matter was called on 06/12/2012, counsel for the Defendant, now Appellant, drew the Court’s attention to his pending application for extension of time to enter appearance and indicated his readiness to move the application. Counsel for the Plaintiff, now Respondent opposed the application on the ground that it did not comply with the rules as same was not accompanied with the Statement of Defence, List of witnesses, Statement of witnesses on oath and List of documents to be relied upon. No counter affidavit and/or written address was filed by the Plaintiff/Respondent in opposition to the application. The Court refused the application for non-compliance with the Rules.

After the ruling, learned counsel for the parties advanced arguments on which application should be heard first between the Plaintiff’s application for judgment and the Defendant’s application to set aside the purported service of the originating processes. Defendant’s counsel suggested that the two applications be taken together, but the Plaintiff’s counsel objected to that suggestion. Upon taking the arguments, the lower Court ruled that the Defendant/Appellant was not properly before the Court and so counsel on its behalf cannot be heard and its application cannot be taken. The ruling is at pages 78–82. The lower Court then heard the Plaintiff’s application for judgment dated 21/09/2012 and proceeded to enter judgment for the Plaintiff/Respondent as per his heads of claim, save the claim for general damages where the Court awarded him the sum of One Million Naira as against the Ten Million Naira claimed by him. The ruling containing the default judgment dated 28/01/2013 is at pages 83 & 84 of the Record.

Peeved by the judgment of the lower Court contained in its ruling of 28/01/2013, the Appellant approached this Court to ventilate its grievances by way of a Notice of Appeal predicated on five grounds of appeal dated 28th January, 2013 but filed on 08/02/2013. The Notice of Appeal can be found at pages 126–132 of the Record of Appeal. The Appellant filed an Amended Notice of Appeal on 20/03/2015 containing two grounds of appeal, but was deemed to have been properly filed and served by an order of Court made on 08/03/2017. The relief sought by the Appellant at paragraph 4 of the Amended Notice of Appeal is for an order setting aside both the ruling and the Default Judgment of the Federal High Court, Lagos, delivered by Musa Kurya, J., on 28th January, 2013, and substituting thereto, an order directing the suit to be heard before another Judge of the Federal High Court, Lagos Division.

As required by the Rules of practice of this Court, parties to the appeal filed and exchanged written Briefs of Argument. The Appellant’s Brief of Argument was filed on 20/03/2015 while the Respondent’s Brief of Argument was filed on 09/11/2016. The Appellant filed a Reply Brief on 09/11/2018 but was deemed properly filed on 09/12/2020. When the appeal came up for hearing on 10/05/2022, learned counsel for the Appellant, O.R. Odjighoro, Esq., adopted the Appellant’s Brief of Argument and the Reply Brief as his arguments. The Respondent’s counsel, though served with hearing notice, was not present in Court during the hearing of the appeal. In compliance with Order 19 Rule (4) of the Court of Appeal Rules, 2021, the Respondent’s Brief was deemed argued.

In the Appellant’s Brief of Argument filed on 20/03/2015 and settled by Henry O. Ukaejiofor, Esq., two issues were submitted for the determination of the appeal, viz;
a. Whether the learned trial Judge was right to entertain and grant the Respondent’s motion for judgment dated 21st September, 2012 when the said Respondent’s motion for judgment was signed by an undisclosed person on behalf of the Respondent’s legal practitioner. (Distilled from Ground 1 of the Notice of Appeal).
b. Whether the Court below had jurisdiction to enter judgment and award damages in an action for loss of cargo in a sum exceeding the limit of liability for loss of cargo stipulated by the Civil Aviation Act CAP C13 Laws of the Federation of Nigeria 2004. (Distilled from Ground 2 of the Notice of Appeal).

Learned counsel for the Respondent, Emeka Michael Obasi, Esq., also formulated two issues for determination as follows:
1. Whether the Respondent’s motion dated 21st September, 2012, which gave rise to the decision of the learned trial Judge delivered on 28th January, 2013 was signed by a legal practitioner- Ground 1.
2. Whether the learned trial Judge was right to have awarded damages for the loss of cargo and cost of freight in the manner contained in the decision of 28th January, 2013 – Ground 2.

The Appellant filed a Reply Brief to the Respondent’s Brief of Argument. Save for choice of diction and semantics, the two issues formulated by the Respondent are identical in substance and in tenor to the two issues submitted for determination by the Appellant. I will, in the circumstance, adopt the two issues crafted by the Appellant in the determination of this appeal, after all, it is the Appellant that activated the jurisdiction of this Court, being the proponent of the appeal.

Arguments on Issue 1
The issue reads:
Whether the learned trial Judge was right to entertain and grant the Respondent’s motion for judgment dated 21st September, 2012 when the said Respondent’s motion for judgment was signed by an undisclosed person on behalf of the Respondent’s legal practitioner.

Learned counsel for the Appellant, Harry O Ukaejiofor, submitted that because of the importance of signing of Court process by Legal Practitioners, such practice is regulated by law. He referred to the decision of the Supreme Court in the cases of Okafor vs Nweke (2007) 10 NWLR (Pt.1043) 521 AT 532-533 and SLB Consortium Limited vs. N.N.P.C. (2011) 9 NWLR (Pt.1252) 317 AT 336, as well as the interpretation placed on the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act, CAP L11, Laws of the Federation of Nigeria, 2004. Learned counsel drew the Court’s attention to the Respondent’s motion for judgment at pages 22–39 of the Record, which was signed as follows:
(signed)
“F: Chief Emmanuel Chukwurah
Ikem Chukwurah & co
Justice Chambers
53, Funsho Williams Avenue, 2nd Floor
Ojuelegba
Surulere, Lagos”

It was contended that the way and manner the Respondent’s motion for judgment was signed has rendered it incompetent, calling in aid the decision of this Court in PMB Ltd vs. NDIC (2011) 12 NWLR (Pt.1261) 253, where a Notice of Appeal signed “F: Babajide Koku” was held to be a fundamental error for non-disclosure of the identity of the person who physically signed for Babajide Koku. Learned counsel argued that the failure of the person who signed the Respondent’s motion to indicate his name, designation and identity is not a mere irregularity which can be waived but a fundamental error which is fatal to the validity of the motion. He submitted that a Court is not competent to adjudicate over a matter where the matter is not initiated by due process of law or upon the fulfilment of a condition precedent to the exercise of jurisdiction-Madukolu vs. Nkemdilim (1962) 2 SCNLR 341. Counsel submitted that the jurisdiction of the Court below to entertain the Respondent’s motion for judgment having been robbed by the fundamental error on the motion, the judgment founded on the said motion was fatally afflicted by the said vice. The Court was urged to declare the judgment a nullity.

In reaction, learned counsel for the Respondent, Emeka Michael Obasi, submitted that contrary to the argument of the Appellant, the Respondent’s motion dated 21st September, 2012 was signed by E.M. Obasi as follows:
“E.M. Obasi
F: Chief Emmanuel Chukwurah
Ikem Chukwurah & Co…”

Learned counsel stated that there is no dispute that E.M. Obasi is a Legal Practitioner and counsel to the Respondent in view of his several appearances before the lower Court on 05/11/2012, 14/11/2012, 06/12/2012, 10/12/2012 and 28/01/2013 as attested to by pages 110, 112, 115, 120 and 123 of the Record of Appeal. He submitted that parties are bound by the Record and no argument intended to alter the Record can be allowed, relying on Sommer vs. Federal Housing Authority (1992) 1 NWLR (Pt.219) 548; Oguntayo vs. Adelaja(2009)15 NWLR (Pt.1163)150 AT 190. It was argued that the endorsement of the name of “E.M. Obasi”, who is a Legal Practitioner in his own right, on the motion dated 21st September, 2012, is a sufficient compliance with the law, placing reliance on the decision of this Court in the case of Sun Publishing Ltd vs. Leaders & Co Ltd (2016) 7 NWLR (Pt.1510) 1 AT 7. He submitted that all the authorities cited by the Appellant are misplaced and clearly distinguishable, in that the facts in this case are not the same with the facts in the decided cases cited, relying on UBA Plc VS. GMBH (1989) 2 NWLR (Pt.110) 374 AT 402; Green vs. Green (1987) 3 NWLR (Pt.61) 408; Amori vs Iyanda (2008) 3 NWLR (Pt.1074) 250; Okoye vs. C.P.M.B. Ltd (2008) 15 NWLR (Pt.1110) 335. He urged the Court to resolve this issue in favour of the Respondent and against the Appellant.

By way of Reply Brief, learned counsel for the Appellant reiterated that the person who signed the Respondent’s motion of 21st September, 2012 has not in any way been shown to be a Legal Practitioner, calling in aid the decision of this Court in Izi vs. State (2016) LPELR-42064 (CA), whose facts, according to counsel, are similar to the facts in this appeal. He argued that it is not the duty of this Court to go on a voyage of discovery where a process is signed by an undisclosed person.

Arguments on Issue 2
Whether the Court below had jurisdiction to enter judgment and award damages in an action for loss of cargo in a sum exceeding the limit of liability for loss of cargo stipulated by the Civil Aviation Act CAP C13 Laws of the Federation of Nigeria 2004.
The Appellant stated that the total judgment sum, including the N1,000,000 general damages awarded to the Respondent by the lower Court, is N4,184,140.00 (Four Million, One Hundred and Eighty-Four Thousand, One Hundred and Forty Naira only). He submitted that the contract between the Respondent and the Appellant, being one of carriage of cargo by air, the rights and duties of the parties is regulated by The Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Montreal on 28th May, 1999, otherwise called The Montreal Convention, whose application has been domesticated in Nigeria by the Civil Aviation Act, CAP C13, Laws of the Federation of Nigeria, 2011, particularly, Section 48 (1) thereof. Learned counsel submitted that by Article 29 of the Montreal Convention, a Plaintiff can only succeed in his claim where he is able to prove that he has complied with all the requirements of the Act and not on the basis of the general rules of breach of contract or negligence, just as the common law reliefs to which a Plaintiff would have been entitled has now been whittled down and enshrined in a statutory provision. Placing reliance on Abacha & 4 Ors vs. Fawehinmi (2000) 6 NWLR (Pt.660) 228 AT 229, counsel submitted that where an International Treaty has been ratified and domesticated into our laws, it becomes binding on our Courts to give full effect to it. Referring to Article 22 (2) of the Montreal Convention on the limits of carrier’s liability for destruction, damage or loss of cargo, and the 2009 upward review of the said liability by the International Civil Aviation Organization from 17 Special Drawing Rights (SDR) per kilogram to 19 SDR per Kilogram, learned counsel submitted as follows:
“The indication of the weight of the Respondent’s consignment was clearly included on the air waybill delivered to the Respondent by the Appellant and is contained at page 15 of the record of appeal. The weight of the consignment being 182 kilograms and the product of 182 (weight of consignment) and 19 (stipulated SDR/kg) is 3,458. The value of 1 (one) United States Dollars in relation to SDR as at the date of judgment, Monday 28th January 2013 (as assessed at the International Monetary Fund’s website http://www.imf.org/external/np/fin/data/rms_sdrv.aspx) was 1.53607 4. In view of which the total liability of the Appellant in United States Dollars as at the date of judgment was $5,311.73.
On the other hand, on the Central Bank of Nigeria website, the exchange rate of the Naira against the United States Dollars (“USD”) as at the date of judgment was 155.23 to 1 USD assessed at http://www.cenbank.org/rates/ExchangeArchives.asp. The product of $5,311.73 (Appellant’s liability in USD) and 155.23 (Naira equivalent of 1 USD) is 824,539.8479.
Therefore My Lords, the liability of the Appellant to the Respondent for loss of Cargo is limited by law to the sum of N824,539.84 (Eight Hundred and Twenty-Four Thousand, Five Hundred and Thirty-Nine Naira, Eighty-Four Kobo Only) and nothing more.”

It was argued that the total sum of N4,184,140.00 (Four Million, One Hundred and Eighty-Four Thousand, One Hundred and Forty Naira only) awarded to the Respondent by the lower Court was clearly above and outside the monetary limit of the Appellant’s liability for compensation for the loss of the Respondent’s cargo, which limit can only be exceeded under Article 22 (3) of the Montreal Convention. Learned counsel contended that the record did not reveal that the Respondent has made any special declaration of interest in delivery at destination nor did it show that any supplementary payment was made for the cargo by the Respondent to entitle him to any sum in excess of the statutory limit. The Court was urged to hold that the Court below has no justification in awarding the Respondent the sum of N4,184,140.00, far in excess of the statutory limit.

Per contra, learned counsel for the Respondent held the view that in the absence of defence to the Respondent’s claim and counter affidavit to the motion for judgment, the lower Court was right in awarding the value of the lost cargo, freight charges and damages to the Respondent for breach of contract. He submitted on the quantum of money awarded to the Respondent that the provisions of the Civil Aviation Act, was never raised before the lower Court due to the absence of defence. Respondent’s counsel maintained that the complaint of the Appellant under ground 2 of the grounds of appeal from which issue 2 was formulated is not predicated on the judgment appealed against, and therefore incompetent, ditto for issue 2 formulated therefrom, placing reliance on Okolie vs. Marinho (2006) 15 NWLR (Pt.1002) 316; Adesina vs. Adeniran (2006) 8 NWLR (Pt.1011) 359 @ 374-375; THOR Ltd vs. FCMB Plc (2002) 4 NWLR (Pt.572) 427. Counsel argued in the alternative that even if the Appellant is allowed to raise the issue of the Civil Aviation Act and the Montreal Convention on the quantum of damages awarded to the Respondent, the decision of the trial Court cannot be reversed as same was founded on the unchallenged evidence before it. He cited as authority for this proposition, the cases of Cameroon Airlines vs. Otutuizu (2005) 9 NWLR (Pt.929) 202 AT 224; Okonkwo vs. Onovo (1999) 4 NWLR (Pt.597) 110, and urged the Court to resolve issue 2 against the Appellant and dismiss the appeal.

In reply to the Respondent’s arguments, the Appellant posited that the law is trite that Courts are bound to take notice of subsisting legislations, therefore, the lower Court was duty bound to take judicial notice of the Civil Aviation Act, whether the Appellant filed a defence to the suit or not, relying on Ado Ibrahim & Co Ltd vs. B.C.C. Ltd (2007) 15 NWLR (Pt.1058) 538; Igba vs. State (2017) LPELR-42990 (CA). It was further submitted that contrary to the argument at paragraph 4.6 of the Respondent’s Brief, the Appellant’s grounds of appeal and issues formulated therefrom are wholly within the compass of the judgment of the lower Court, not outside it.

Resolution of Issue 1
Appellant contended under this issue that the motion for judgment dated 21st September, 2012 under which the Court below entered judgment for the Respondent was not signed by a Legal Practitioner as same was signed for Chief Emmanuel Chukwurah by an unidentified person. Respondent argued contrariwise that the signature on the motion reads “E.M. Obasi”, the Legal Practitioner that has, on record, appeared severally for the Respondent.

The law on how to sign originating and other Court processes in order to make them competent and valid, is now firmly settled. It is trite law that Court processes can only be signed by the litigant himself or by a Legal Practitioner engaged by him. Section 2 (1) of the Legal Practitioners Act, provides that a person shall be qualified to practice as a Barrister and Solicitor only if his name is on the Roll of Legal Practitioners in Nigeria. Section 24 of the same Act defines Legal Practitioner to mean “a person entitled in accordance with the provisions of this Act to practice as a Barrister or as a Solicitor, either generally or for the purpose of any particular office or proceedings.” Any person whose name is not on the Roll of Legal Practitioners in the Supreme Court is not qualified to practice as a Legal Practitioner in Nigeria and therefore not qualified to sign Court process on behalf of a litigant. See Okafor vs. Nweke (2007) LPELR-2412 (SC); FBN Plc vs. Maiwada (2012) LPELR-9213 (SC); (2012) 5 SC 1; Oketade vs. Adewunmi (2010) 8 NWLR (Pt.1195) 63; Williams & Anor vs. Adold/Stamm International Nigeria Ltd (2017) LPELR-41559 (SC); Okpe vs. Fan Milk Plc & Anor (2016) LPELR-42562 (SC); Arueze & Ors vs. Nwaukoni (2018) LPELR-46352 (SC); Ajibode & Ors vs. Gbadamosi & Ors (2021) LPELR-53089 (SC); Yongo & Ors vs. Hanongon & Ors (2022) LPELR-57282 (SC).

In the same vein, it is the law that where a Legal Practitioner purports to sign a Court process on behalf of another Legal Practitioner, the identities of that Legal Practitioner and the person he represents or signs for, must be made manifest on the process so signed. The names of the two Legal Practitioners must be disclosed on the process, in addition to the signature. Bage, JSC, restated this position of the law in the case of Arueze & Ors vs. Nwaukoni (2018) LPELR-46352 (SC) at page 11 of the Report, as follows:
“The cases of Okafor vs Nweke (supra) Oketade vs Adewunmi (supra) FBN Plc v. Maiwada (supra) cited above have settled the matter with satisfactory finality, to the effect that the proper procedure for signing on behalf of somebody else is to disclose the name and identity of the person who signed and for whom it was signed if signed on behalf of another person in chambers- the two names must be disclosed. I can’t agree less with the Respondent that the originating process, the Amended Statement of Claim No. 3 was defective as issued. This goes to the jurisdiction of this Court to entertain this appeal.”

Proffering a simple but effective guide on how Court processes are to be signed in order to safeguard their validity, the Supreme Court, Per Rhodes-Vivour, JSC, in SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (Pt.1252) 317 @ 337 postulated thus:
“All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of the counsel clearly written. Thirdly, who the counsel represents. Fourthly, name and address of Legal firm.”

In the instant case on appeal, the motion for judgment, filed at the lower Court on behalf of the Respondent located at pages 22-39 of the Record, was signed at page 24 of the Record, thus:
“E.M. Obasi (Handwritten)_
F: Chief Emmanuel Chukwurah
Ikem Chukwurah & co
Justice Chambers
53, Funsho Williams Avenue, 2nd Floor
Ojuelegba
Surulere, Lagos”

It is not in dispute that one E.M. Obasi has appeared as counsel for the Plaintiff before the lower Court in the proceedings of 5th November, 2012 (page 110 of the Record), 14th November, 2012 (page 112 of the Record), 6th December, 2012 (page 115 of the Record) and 10th January, 2013 (page 120 of the Record). The motion for judgment dated 21st September, 2012 was, however, not prepared and signed by E.M. Obasi, it was prepared by Chief Emmanuel Chukwurah and signed on his behalf by someone, whose name/identity and designation was not stated under/below the signature. The impression or mark, “E.M. Obasi” made on the signature line above the name of Chief Emmanuel Chukwurah is the signature that was made on the document, i.e., the motion for summary judgment, aimed at authenticating it. That signature was not made by Chief Emmanuel Chukwurah as even the Respondent himself did not state that the signature belonged to Chief Emmanuel Chukwurah. The name, identity and designation of the person who made the mark “E.M. Obasi” on the signature line to represent a signature was not stated immediately below the mark or signature as it is legally required. The name of the signatory of the motion for judgment and his occupation and/or relationship with the Respondent is not decipherable on the document. While the Record of Appeal is dotted in at least four places with the name, E.M. Obasi, as counsel representing the Respondent, then as Plaintiff, the insignia, impression or mark “E.M. Obasi” written in ink on the signature line on top of the name of Chief Emmamuel Chukwurah, signifies a signature, ‘which may be of any contraption’, while the letter ‘F:’ signifies that the signature was made for and on behalf of Chief Emmanuel Chukwurah. But the name of the owner of the signature is not stated. It is clear that while Chief Emmanuel Chukwurah did not sign the motion for judgment, the identity of the person who signed it has not been disclosed. The argument by the Respondent that the motion was signed by E.M. Obasi, counsel to the Respondent, cannot fly for the reason that if the name “E.M. Obasi” written in ink on the motion for judgment is regarded as the name of a Legal Practitioner, on behalf of Chief Emmanuel Chukwurah, it then means that the motion has not been signed, as there is no other mark on the motion that can be considered as signature. What that means is that the unsigned motion is, in law, rendered worthless. If on the other hand, the handwritten name is considered as a signature, it means that the name/identity of the signatory, who signed for Chief Emmanuel Chukwurah, has not been disclosed on the motion. Whichever way it is viewed, the motion for judgment dated 21st September, 2012, has failed to satisfy the legal requirement for signing/endorsement of Court process by a Legal Practitioner on behalf of another Legal Practitioner as stated by the Supreme Court in the case of Arueze & Ors vs. Nwaukoni (supra), that the names of the two Legal Practitioners must be clearly and distinctly stated, in addition to the signature. In the result, I resolve issue 1 against the Respondent and in favour of the Appellant. I hold that the motion for judgment dated 21st September, 2012, is incompetent, and the judgment founded on it is a nullity.

Resolution of Issue 2
In case my decision on first issue is found to be wrong, I shall, for purposes of completeness, proceed to consider Issue 2.

The Respondent’s suit before the Court below was founded on breach of contract of carriage of cargo by air. The Respondent approached the Appellant, a foreign Airline who operates cargo services, to convey 182kgs of Hair attachments from Lagos to one Emile Musanbuku, a customer, in Glasgow, United Kingdom. That was on 24th December, 2011. The Respondent paid for the freight charges and duties and was issued receipt and waybill. The Appellant neither delivered the consignment of goods to the Respondent’s customer in Glasgow nor return same to Lagos. The Appellant also refused to return to the Respondent the value of the goods and all incidental expenses incurred, despite demands to that effect. This is what necessitated the filing of the suit at the lower Court. Disputes arising from contract of carriage of passengers, baggage or cargo by air are regulated internationally by The Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Montreal on 28th May, 1999, simply called the Montreal Convention. The scope of the application of the Montreal Convention as per Article 1 thereof, is that it applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. Nigeria is not only a signatory to that Convention, but has domesticated the Montreal Convention as a Schedule to the Civil Aviation Act, CAP C13, Laws of the Federation of Nigeria, 2011. Section 48 (1) of the Civil Aviation Act, which deals with Carrier’s liability, provides:
“The provisions contained in the Convention for the Unification of certain rules relating to International Carriage by Air signed at Montreal on 28th May,1999 set out in the Second Schedule II of this Act and as amended from time to time, shall from the commencement of this Act have force of law and apply to international carriage by air to and from Nigeria, in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.”
By the act of domestication, the Montreal Convention has become part and parcel of our municipal laws, and applies with equal force as any other legislation in Nigeria in relation to matters of aviation. In fact, it superintends and lords it over domestic legislations in disputes connected with or pertaining to aviation. See Harka Air Services (Nig.) Ltd vs. Keazor (2011) LPELR-1353 (SC).

It is in this light that I consider the argument of learned counsel for the Respondent that the Civil Aviation Act and the Montreal Convention cannot apply to this case because the Appellant has not filed a defence, as preposterous and an affront to the law. Just because the Appellant has not filed a defence is no reason why the lower Court will shut its eyes to the law and pretend it does not exist. Section 122 (2) of the Evidence Act enjoins the Courts to take judicial notice of all enactments. This is irrespective of whether the enactments are referred to by parties or not. See Lafia Local Government vs. The Executive Government, Nasarawa State & Ors (2012) LPELR-20602 (SC); INEC vs. Asuquo & Ors (2018) LPELR-43885 (SC); Speaker, Kaduna State House of Assembly vs. Nkom & Anor (2019) LPELR-50961 (CA); Adegbanke vs. Ojelabi (2021) LPELR-54992 (SC).

Now, in order to determine the liability, if any, of the Appellant to the Respondent in respect of the contract entered by them in December, 2011, which was allegedly breached by the Appellant, I shall take a detour of the Montreal Convention with a view to getting and reproducing the relevant provisions that have direct bearing to the case of the parties to this appeal.

Article 29 of the Convention provides that:
“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 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.”
This provision of this Article is self-explanatory and must be given its plain and ordinary meaning. To begin with, under this provision, exemplary, punitive and other non-compensatory damages that would ordinarily be recoverable in cases of breach of contract under the common law, are not recoverable in an action founded on loss, damage or destruction of cargo under the Montreal Convention.

The question that follows is, what are the conditions and limits of liability of a Carrier for breach of contract of carriage of cargo by air in which compensatory damages are to be awarded, as referred to under Article 29? The answer to this poser can be found in Article 22 (2) of the Convention:

“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 the 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.”
This Article has whittled down and limited the liability of a carrier in the event of loss or destruction of the cargo the carrier contracted to carry to 17 Special Drawing Rights per each kilogram of the lost or destroyed cargo. However, on 30th December, 2009, the International Civil Aviation Organization (ICAO) has reviewed upwards the limits of liability of a carrier from 17 Special Drawing Rights (SDR) to 19 Special Drawing Rights (SDR) per kilogram of lost or destroyed consignment pursuant to Article 24 of the Montreal Convention. The only exception to the limit of liability of a carrier is when the consignor has made a special declaration of interest in delivery at destination and has paid a supplementary sum at the time of handing over the cargo to the carrier. No evidence of such special declaration of interest and payment of a supplementary sum by the Respondent to the Appellant is shown in the printed Record of Appeal before this Court. Therefore, the instant case did not fall within the exception in Article 22 (2) of the Montreal Convention, rather, it falls squarely within the general provision which limits the carrier’s liability to 19 Special Drawing Rights per kilogram. From the Record of Appeal, especially the waybill contained at page 15 thereof, the weight of the consignment of hair attachment handed over to the Appellant by the Respondent is 182 kilograms. This means that even if the motion for judgment upon which the lower Court entered judgment in favour of the Respondent was competent, the total amount the Respondent would have been entitled to will not exceed the sum of 19 Drawing Rights times 182, the weight in kilograms of the lost consignment, which will translate to 3,458 Special Drawing Rights.

What then is the value of a Special Drawing Right in relation to the United States Dollar and/or Nigerian Naira? This knowledge will enable the Court to know the upper limit of the Appellant’s liability in this case and whether the damages awarded to the Respondent is in excess of that limit.
Special Drawing Rights (SDR) are supplementary foreign exchange reserve assets defined and maintained by the International Monetary Fund (IMF). SDRs are units of account for the IMF, and not a currency per se. They represent a claim to currency held by IMF member countries for which they may be exchanged. See Wikipedia, the online Encyclopedia at https://www.wikipedia.org. The value of SDR to a US Dollar fluctuates with time. For example, as at 6th April, 2021, one SDR exchange for 1.42 US Dollars, but on 7th June, 2022, while I was preparing this judgment, one SDR exchange for USD 1.344766. As at 28th January, 2013, when the judgment now on appeal was entered, the exchange rate of one SDR to a dollar was 1.536 at the website of the International Monetary Fund (IMF). The rate was higher in January, 2013 than it is today. It follows therefore that the maximum damages that can be awarded to the Respondent under Article 22 (2) of the Montreal Convention for the lost of his consignment cannot exceed the product of 1.536 USD multiplied by 3,458 SDR, equals to USD5,311.448. In converting this amount to Naira, I accept the exchange rate of the US Dollar to the Naira as at 28th January, 2013, submitted by the Appellant at paragraph 4.19, page 9 of its Brief, which was not contested by the Respondent. The exchange rate of 155.23 Naira to a US Dollar was gotten from the Central Bank at http://www.cenbank.org/ExchangeArchives.asp. When the sum of 5,311.448 USD is multiplied by the exchange rate of the dollar to the Naira as at 28th January, 2013, Which was 155.23, the total sum will translate to N824,502.28. This is the limit of damages the lower Court has power to award under the Montreal Convention. In awarding to the Respondent, the total sum of N4,184,140.00 (Four Million, One Hundred and Eighty-Four Thousand, One Hundred and Forty Naira), the Court below has acted far in excess of its powers in the award of compensation/damages under the Montreal Convention. Consequently, the judgment cannot stand. In the result, I resolve Issue 2 against the Respondent and in favour of the Appellant. In the final analysis, I hold that this appeal is meritorious and is hereby allowed. The default judgment of the Federal High Court, Lagos Division, delivered by Musa Kurya, J., on 28th January, 2013 in suit No. FHC/L/CS/758/2012 is hereby set aside, it being a nullity. The suit is remitted to the Federal High Court for hearing and determination on the merits by another Judge. I order that parties shall bear their respective costs of this appeal.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance, in draft form, a copy of the judgment of my Learned Brother, Muhammad Ibrahim Sirajo, JCA, in which this appeal was allowed. The issues arising for determination have been comprehensively considered and resolved; and I am in agreement. I will only make few comments in support.

Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation, 2004, have received frequent and consistent judicial interpretation such that it is now well settled that a process prepared and filed in a Court of law by a legal practitioner, which has not been signed by the legal practitioner, is incompetent; Okafor v. Nweke (2007) LPELR-2412(SC); First Bank of Nigeria Plc v. Maiwada (2012) LPELR-9213(SC); (2012) 5 SC (Pt. 111) 1 SLB Consortium Ltd v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317; (2011) LPELR-3074(SC); Okarika V. Samuel (2013) LPELR-19935(SC); Oketade v Adewunmi (2010) 8 NWLR (Pt. 1195) 63; SPDC Nig Ltd v Sam Royal (Nig) Ltd (2016) LPELR-40062(SC); Okpe v. Fan Milk PIC & Anor (2016) LPELR-42562(SC); Williams & Anor v. Adold/Stamm International Nigeria Limited & Anor (2017) LPELR-41559(SC); GTB v. Innoson Nigeria Ltd (2017) LPELR-42368(SC); Arueze & Ors v. Nwaukoni (2018) LPELR-46352(SC); Akinsanya & Anor v. Federal Mortgage Finance Ltd (2010) LPELR-3687(CA); Igiriga v. Bassey (2013) LPELR-20346(CA); N.N.P.C. v. Roven Shipping Ltd (2014) LPELR-22140(CA); Kpezanyashi & Ors v Jezhi & Ors (2018) LPELR-44402(CA); Ewukoya & Anor v. Buari & Ors (2016) LPELR-40492(CA).
See also the recent affirmation of this position of the law by the apex Court in Ajibode & Ors v Gbadamosi & Ors (2021) LPELR-53089(SC); Ojikutu & Ors v. Kuti & Ors (2021) LPELR-56231(SC); Skypower Express Airways Ltd v. UBA Plc & Anor (2022) LPELR-56590(SC); Yongo & Ors v. Hanongon & Ors (2022) LPELR-57282(SC).
The failure of the Respondent’s Counsel to sign the Motion for Judgment of 12/9/2012, upon which the default judgment on appeal was entered, was a defect that impacted on the jurisdiction of the lower Court to entertain the matter. Jurisdiction is always a threshold issue, for when the Court has no jurisdiction to entertain a matter, the proceedings are a nullity, no matter how well conducted and brilliantly decided they may have been: Lakanmi v Adene (2003) LPELR-1750(SC); Ekulo Farms Ltd v UBN Plc (2006) LPELR-1101(SC); Obaba v Military Governor of Kwara State (1994) LPELR-2147(SC).

It is also trite that a jurisdictional issue can be raised at any time, even at the apex Court; Adegoke v Adibi (1992) LPELR-95(SC); Adesola v Abidoye (1999) LPELR-153(SC); Olutola v University of Ilorin (2004) LPELR-2632(SC).

It is for the above reasons, and for the fuller reasons given in the leading judgment that I also allow this appeal. I abide by the orders made therein.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have carefully perused the draft copy of the judgment delivered by my Learned Brother, MUHAMMAD IBRAHIM SIRAJO, JCA and found out that he rightly resolved all the Issues in this judgment.

It is settled law that a Legal Practitioner who appended his signature in a Court process must appear beneath the signature. Failure to comply with the Legal Requirement for the endorsement of Court process renders the Court process incompetent and as such the Court will not have the jurisdiction to entertain the suit as the Originating Process is incompetent. Reference is made to case authorities of TANIMU & ANOR v. RABIU & ORS (2017) LPELR-47998(SC): OKAFOR & ORS VS NWEKE & ORS (2007) LPELR-2412(SC); SKYPOWER EXPRESS AIRWAYS LTD v. UBA, PLC ANOR (2022) LPELR.56S90(SC).

In this instant appeal, the Respondent’s Motion for judgment only contained the name ‘E M Obasi’. However, the names of the Legal Practitioner beneath the signature section was not stated in the Motion Paper, consequently, it could be said that motion was not signed and as such is incompetent and the judgment founded on it is a nullity.

On Issue 2, by the provisions of Article 29 of the Montreal Convention, a Claimant cannot make a claim for punitive, exemplary and other non-compensatory damages. A Claimant is only entitled to damages as stipulated under the Montreal Convention. By the provisions of Article 22 of the Montreal Convention. a Claimant is entitled to 19 Special Drawing Rights per kilogram for loss of cargo. In this instant case, Respondent is entitled to 19 SDR per Kilogram of Cargo.

For the above reasons. I abide by the decision of my Learned Brother to allow the appeal. To this end, the Default Judgment of the lower Court in suit No: FHC/CS/758/2012 is hereby set aside. The suit is remitted to the Federal High Court for hearing and determination on the merits by another Judge. I also abide by the order made as to cost.