TURKISH AIRLINES v. FAWEHINMI & ANOR
(2022)LCN/16521(CA)
In the Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Tuesday, May 10, 2022
CA/PH/116/2021
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
TURKISH AIRLINES APPELANT(S)
And
1. PROFESSOR HAKEEM FAWEHINMI 2. MRS. HADEEZA FAWEHINMI RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE A COURT CAN BE ACCUSED OF RAISING AN ISSUE SUO MOTU
A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact does not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact existed in the litigation. Raising issue suo motu by the trial Court does not even arise in this case.
However the initiation of the issue by Appellant’s Counsel in paragraph 5.7 as reproduced above, a Judge by the nature of his adjudicatory function, can draw inference from stated facts on a case and by such inference, the Judge can arrive at a conclusion. It was therefore wrong to say that such inference, legitimately drawn from facts on the case are introduced suo motu. See Ikwenta Best Nigeria Ltd Vs. A-G, Rivers State (2008) 6 NWLR (pt. 1084) 612; N.N.P.C. Vs. Roven Shipping Ltd (2019) 9 NWLR (pt. 1676) 67 and David Vs. INEC (2020) 4 NWLR (pt. 1713) 188. PER HASSAN, J.C.A.
WHETHER OR NOT THE COURT CAN DETERMINE AN ACADEMIC ISSUE
The issue therefore is irrelevant since it has been considered. The issue has become academic and it means the act has become spent and no longer of any benefit or value and it is not worth spending time and energy on it. It will have no value on the Appellant even if judgment is to be given in his favour. No useful purpose will be achieved in going into this issue. It is accordingly struck out. See Ijaodola Vs Unilorin Governing Council (2018) 14 NWLR (Pt. 1638) 32 at 36; Oke Vs Mimiko(No1) 2014 1 NWLR (Pt. 1388) 225 and Odedo Vs Oguebego (2015) 13 NWLR (Pt. 1476) 229.
The appellant’s reply brief is discountenanced for embellishing the main brief. PER HASSAN, J.C.A.
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Port Harcourt Judicial Division delivered on the 29th of January, 2021 in Suit No. FHC/PH/CS/2018 by Honourable Justice Adamu Turaki Mohammed.
The Respondents as Plaintiffs at the Court below commenced the action, by way of Writ of summons and an Amended Statement of Claim dated and filed on the 6th of August, 2019 against the appellant as defendant therein, claiming as follows:
1. A declaration that failure of the Defendant to secure the Plaintiffs’ luggage and deliver same at the time of the Plaintiffs’ arrival in Nigeria amounts to negligence and breach of contract between the parties.
2. The sum of N50,000,000.00 (Fifty Million Naira) only being and representing special and general damages for breach of contract, breach of duty of care, the lost items, inconveniences and hardship suffered by the Plaintiffs as a result of the acts of the Defendant on handling/securing and or delivery of their luggage.
Total special damages – $3,800.00 N976,000.00
Total general damages – N49,023,400.00
Grand Total – N50,000,000.00
3. Post Judgment interest in the judgment sum in accordance with the rules of the Hounourable Court.
In response to the claims, the defendant/appellant filed a statement of defence on the 23rd day of October 2019. A reply to the defendant/appellant’s statement of defence was filed on the 7th of November, 2019.
After the exchange of pleadings by the parties, trial commenced, and at the conclusion of trial, judgment was entered in favour of the Plaintiffs/Respondents against the defendant/appellant.
Aggrieved with the judgment, the Appellant filed a Notice of Appeal on the 29th of January, 2021 with the leave of Court. The Amended Notice of Appeal was dated and filed on the 8th of October, 2021, anchored on eighteen grounds of appeal with their particulars.
The Appellant’s brief was dated and filed on the 8th of October, 2021, and deemed properly filed on the 8th of October, 2021. The Appellant’s reply brief filed on the 4th of March, 2022 was deemed properly filed on the 8th of March, 2022.
In the main brief, the Appellant’s Counsel Tonye Krukrubo Esq. formulated eleven issues for determination of the appeal. The issues are:
“1. Whether the trial Court was right when it held that the convention or the unification of certain Rules relating to International Carriage by Air (“Montreal Convention”) was inapplicable to the contract of International Carriage by air between the parties.” (Ground 2).
2. Having regard to the failure of the Respondents to issue timely written notice of complaint to the Appellant as required by the Montreal Convention, was the trial Court not without jurisdiction to entertain the action filed by the Respondents? (Ground 1).
3. “Whether the trial Court was right when it raised suo motu the question of applicability of the Montreal Convention based on the delivery of the Respondents’ luggage in Port Harcourt and resolved the said issue without first affording the appellant an opportunity to address the trial Court on the issue. (Ground 3).
4. “Whether the trial Court was right when it held that the appellant did not regularize its statement of defence.” (Ground 5).
5. “Whether the trial Court was right when it held that the evidence of PW1 regarding the alleged reduction in weight of the Respondents’ baggage was corroborated by the testimony of PW2”. (Ground 6 and 7).
6. “Whether the trial Court was right when it held that the evidence of PW1 was corroborated.” (Ground 9).
7. “Whether the trial Court was right when it held that the Respondents’ specifically pleaded and strictly proved special damages.” (Grounds 8 and 15).
8. “Whether the trial Court was right when it held that the allegation by the Respondents that items were removed from their baggage by the Appellant without their consent was not an allegation of crime that required proof beyond reasonable doubt.” Ground 13).
9. Whether the trial Court was right when it shifted to the Appellant the burden of proving that no item was removed from the baggage of the Respondents.” (Grounds 12 and 4).
10. “Whether the learned trial Court was right when it held that the appellant did not prove that the limited loading capacity of the aircraft that carried the Respondents’ luggage was the reason for the delay in arrival of their baggage.” (Grounds 10 and 11).
11. “Whether the trial Court was right when it awarded damages to the Respondents beyond the monetary limit set by the Montreal Convention and if so, whether the damages awarded was not excessive and in disregard of applicable principles.” (Grounds 4, 16, 17 and 18).
Learned Counsel adopted the Brief and the Reply Brief and urged the Court to allow the appeal.
The Respondents’ Brief dated the 22nd of November, 2021 was filed on the 24th of November, 2021 but was deemed properly filed and served on the 13th of January, 2022. The brief settled by C. I. Enweluzo, SAN also has eleven issues distilled for determination of the appeal, thus:
(a) “Whether the learned trial Court raised suo motu and resolved the question that the Montreal Convention is inapplicable to the Contract between the parties in this case.” (Ground 2).
(b) “Whether the learned trial Court held that the delivery of the Respondents’ baggage in Port Harcourt instead of Lagos was outside the contract of the parties.” (Ground 3).
(c) “Whether the learned trial Court was imbued with the jurisdiction to entertain this suit.” (Ground 1).
(d) “Whether the learned trial Court was right in holding that the appellant did not regularize its Statement of Defence.” (Ground 5).
(e) “Whether the evidence of PW1 in respect of reduction in weight of the Respondents’ luggage was successfully controverted by the Appellant.” Ground 9).
(f) “Whether the said evidence of PW1 was not confirmed by PW2.” (Grounds 6 & 7).
(g) “Whether the learned trial Court was not right when it held that the Respondents specifically pleaded and strictly proved special damages. (Grounds 8 and 15).
(h) “Was the learned trial Court not right when it held that the Appellant failed to prove that limited loading capacity was responsible for the delayed arrival of the Respondents’ luggage.” (Grounds 10 and 11).
(i) “Whether the learned trial Court was right when it held that the Respondents’ averment in respect of the loss of the respondents’ items from the luggage in the care and custody of the Appellant was no allegation of crime.” (Ground 13).
(j) “Whether the Statement “most importantly”, the Defendant has failed to provide evidence to prove that the items of the Plaintiffs were removed” in the Judgment of the trial Court amounted to shifting the burden on the appellant in respect of the missing items; and if so, was the learned trial Court not right to do so.” (Grounds 12 and 14).
(k) “Whether the learned trial Court was right when it awarded damages to the Respondents beyond the monetary limit set by the Montreal Convention and if so, whether the damages awarded was excessive.” (Grounds 4, 16, 17 and 18).
Learned Senior Counsel adopted the brief and urged the Court to dismiss the appeal.
The appellant’s Counsel formulated eleven issues from the eighteen grounds of appeal, which makes the appellant’s grounds of appeal long winding. A ground of appeal is the complaint of the appellant on the judgment of the lower Court. It is not every alleged wrong by the lower Court that must be a ground of appeal. Appeals are now won on the quality of the content of grounds of appeal and issues for determination.
In the resolutions of the issues, I must say that the appellant formulated eighteen grounds of appeal and eleven issues for determination. One may ask what have eighteen grounds of appeal and eleven issues got to do in this not complicated appeal? It is not my understanding of the law that every alleged wrong by the trial Court or Court of Appeal must be a ground of appeal. In my view, grounds of appeal should be based only in respect of live issues or the issues in controversy in the appeal.
It is also noted, from the eighteen grounds of appeal in the Appellant’s Notice of Appeal, grounds 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 are on evaluation of evidence by the trial Judge while grounds 17 and 18 are challenge to the exercise of discretion by the trial Court.
I must say that I do not see the place for eleven issues in this appeal. In this appeal, it is not every fact in dispute that raises an issue for determination. Proximity of issues formulated is not a merit as it is more likely to obscure the core issues. Multiplicity of issues ends to reduce most of the trifles.
Now, the implication of grounds of appeal challenging the evaluation made by the trial Court and challenging the exercise of discretion of the Court, the grounds are grounds of mixed law and facts which require leave of the Court to be sought and obtained before they are raised.
The Supreme Court in Chief of Air Staff Vs. Edward (2019) 14 NWLR (pt. 1691) 183 at 187, held that a ground of appeal that questions the evaluation of facts by the Court before the application of the law, it is a ground of mixed law and fact. It went further to say a ground of appeal questioning the exercise of discretion by the lower Court is at best a ground of mixed law and fact. See also Ade Coker vs. U.B.A Plc (1997) 2 NWLR (pt. 490) 64; Ogbechie & Ors Vs. Onochie & Ors (1986) 2 NWLR (pt. 23) 484 and Nikagbate Vs. Opaye(2018) 9 NWLR (pt. 1623) 85.
Section 242(1) of the Constitution of Nigeria 1999 (as amended)provides:
“Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or that High Court or the Court of Appeal.”
Where as in the instant case, fourteen of the eighteen grounds of appeal involves facts of mixed law and facts, leave of the Court of Appeal must first be sought and obtained. where leave is required and not obtained, the affected grounds of appeal would be incompetent and liable to be struck out. See Utoo Vs. A.P.C. (2018) 12 NWLR (PT. 1634) 507; Metuh Vs. F.R. N. (2018) 10 NWLR (pt. 1628) 399; Abdul Vs. C.P.C. (2014) 1 NWLR (pt. 1388); G.W.V.S. (Nig.) Ltd Vs. NLNG Ltd (2017) 8 NWLR (pt. 1568) 381; Arowola Vs. Adimula (1991) 8 NWLR (pt. 212) 753 and Uwak Vs. Ekpeyong (2019) 7 NWLR (pt. 1570) 67.
Leave to appeal, where leave is required, is a condition precedent to the exercise of jurisdiction by the appellate Court. It renders the appeal incompetent and robs the Court of jurisdiction to hear it. See Russel vs. Russel (1987) 2 NWLR (pt. 57) 437; Organ vs. NLNG Ltd (2013) 16 NWLR (pt. 1381) 506 and Metuh vs. F.R. N. (supra).
In this case, the Appellant failed to obtain the requisite leave to appeal which rendered the said grounds and issues formulated therefrom incompetent.
Therefore the said grounds 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 and issues v, vi, vii, viii, ix, x and xi distilled therefrom are struck out for being incompetent. The Appellant is therefore left with grounds 1, 2, 3, 4 and 5 with issues i, ii, iii and iv for determination of this appeal.
Issues one, two and three shall be taken together.
ISSUE ONE
“Whether the trial Court was right when it held that the convention or the unification of certain Rules relating to International Carriage by Air (“Montreal Convention”) was inapplicable to the contract of International Carriage by air between the parties.
ISSUE TWO
Having regard to the failure of the Respondents to issue timely written notice of complaint to the Appellant as required by the Montreal Convention, was the trial Court not without jurisdiction to entertain the action filed by the Respondents?
ISSUE THREE
“Whether the trial Court was right when it raised suo motu the question of applicability of the Montreal Convention based on the delivery of the Respondents’ luggage in Port Harcourt and resolved the said issue without first affording the appellant an opportunity to address the trial Court on the issue.”
Learned Counsel submitted on issue one and three that both the Appellant and the Respondents agreed that the convention for the unification of certain Rules relating to International Carriage by Air (Montreal Convention) was applicable to the contract of carriage between the parties. He referred to paragraphs 14 and 15 of the statement of defence and paragraph 8 of the reply to the statement of defence to submit that the only point of divergence was whether the Appellant was entitled to rely on the limitation of liability provision in Article 22(2) of the Montreal Convention. That the trial Court was wrong to have held that the delivery of the baggage to the Respondents in Port Harcourt rendered the Montreal Convention inapplicable to the contract of the parties which was raised by the trial Court suo motu and determined same without calling on the parties to address it on it. That failure to address the Court is a breach of right of fair hearing of the parties and occasioned a miscarriage of justice. The Court was referred to Oje Vs. Babalola (1991) 4 NWLR (pt. 185) 267 at 280 paragraphs. D-F.
Counsel argued that despite the delivery of the baggage to the Respondents in Port Harcourt, Rivers State, the Montreal Convention is the governing law of the contract of International carriage by air entered between the parties, which must be used in determining the rights and liabilities of the parties. He referred to Section 12 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to submit that the Montreal Convention has been domesticated in Nigeria and consequently has the force of law in Nigeria. He referred to Section 48(1) of Civil Aviation Act, Cap. C 13 Laws of the Federation of Nigeria 2004 which 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 of this Act and as amended from time to time, shall from the commencement of this Act have the force of law in Nigeria, in relation to any 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.”
He referred to Mekwunye Vs. Emirates Airline (2019) 9 NWLR (pt. 1677) 191; Emirates Airline Vs. Nagonadi (2014) 10 NWLR (pt. 1413) 429 and South African airways Vs. Prosoft Technologies Ltd (2016) LPELR 40573 (CA).
Also referred is Article 1(1) and (2) of the Montreal Convention delimit the scope of the application of the Montreal convention as follows:
1. “This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.”
2. For the purpose of this convention, the expression “International Carriage” means any carriage in which, according to agreement between the parties, the place of departure and the place of destination, whether or not there is a break on the carriage or a transshipment, are situated wither within the territories of two states parties, or within the territory of a single state party if there is an agreed shopping place within the territory of another state, even if that state is not a state party. Carriage between two points within the territory on a single state party without an agreed shopping place within the territory of another state is not International Carriage for purposes of this Convention.”
It is also the submission of the appellant’s counsel that the contract between the parties in his case was for the Appellant to carry the Respondents on a return trip from Lagos, Nigeria to London, United Kingdom with a stop-over in Istanbul, Turkey. That the contract was therefore one of International Carriage by air governed by the Montreal Convention on questions of liability and compensation.
Submitting further, Counsel argued that pursuant to the contract between the parties, the Appellant conveyed the Respondents from Lagos on 13th December, 2012 to Istanbul, Turkey and subsequently to London, United Kingdom and on the 7th of January, 2013, the appellant conveyed the Respondents from Istanbul to Lagos. That due to the limited loading capacity of the aircraft, the Respondents’ baggage could not be carried on the same flight, hence the delivery of the baggage in Port Harcourt on the 13th January, 2013 to the Respondents.
It is finally submitted on these issues that the trial Court was wrong to have held that the delivery of baggage to the Respondents in Port Harcourt rendered Montreal Convention inapplicable on the basis that it was impossible to determine where the items were allegedly removed from the baggage of the Respondents either between Istanbul to Lagos or Lagos to Port Harcourt. He referred to Section 48(1) of the Civil Aviation Act to submit that delivery of baggage to the respondents in Port Harcourt cannot render the Montreal Convention inapplicable to the International Contract of carriage by air entered between the parties.
That the claim of the Respondents was not only for the items removed while in the custody of the Appellant but also for delay in the delivery of their baggage, but the trial Court made a case for the Respondents when it failed to apply the Montreal Convention on the ground that it was not clear where the items were allegedly removed. Relying on the case of F.C.D.A. Vs. Naibi (1990) 3 NWLR (pt. 138) 270 at 283 paragraphs. C-D, it is submitted that the law is that a Court must not make a case for a party which the party has not made for himself.
On Issue two, the Appellant’s counsel submitted that the trial Court had no jurisdiction to entertain the action since the condition precedent for the action to lie against the Appellant, which is the timely issuance of written notice of complaints was not complied with by the Respondents by virtue of Article 31(2) of the Montreal Convention which provides for fourteen days from the date on which the baggage or cargo has been placed at his/her disposal. That if the complaint was not made within the stipulated time, the action will not lie against the carrier, except in the case of fraud on its part. Counsel argued that the Respondents’ complaint made on 14th February, 2013, more than a month after the receipt of the baggage, the consequence is that no action could lie against the Appellant in respect of the said complaint.
That it is the law, where a Statute provides for a condition precedent to the exercise of a Court’s jurisdiction, failure to satisfy such condition renders the action incompetent. The Court was referred to Madukolu Vs. Nkemdilim (1962) 2 SCNLR 342 at 348 paragraphs. E-G and Famudoh Vs. Aboro (1991) 9 NWLR (pt. 214) 210 at 233 paragraphs. H-A and urged the Court to resolve the issues in favour of the appellant.
Responding, learned Senior Counsel for the Respondents argued that there is nothing in the record to show that the learned trial Court raised the issue of inapplicability of the Montreal Convention suo motu on the ground that delivery of the Respondents’ luggage in Port Harcourt, Rivers State was made outside the contract of parties. That it was the initiative of the Appellant in paragraph 5.7 of its final address at page 222 of the record of appeal, that the implication of taking Respondents’ baggage to Port Harcourt was that such delivery was outside the agreement of the parties since their contract contemplated Lagos as the final destination of the Respondents’ trip. Counsel said it was a false allegation and a misleading submission for the appellant’s counsel to say that the learned trial Judge raised and resolved the issue suo motu.
Submitting further, learned Senior Counsel for the Respondents conceded that the contract entered into between the Appellant and the Respondents was governed by the Montreal Convention which necessitated the institution of the action in the Federal High Court, but based on the willful misconduct of the Appellant in performing its parts of the obligations under the agreement, some of the provisions of the Montreal Convention which the Appellant relied upon were not made available and could not be called on aid by the Appellant in line with the Supreme Court decision in Mekwunye Vs. Emirates Airline (2019) 9 NWLR (1677)191. Also referred is the decision of the trial Court with regard to the applicability of Articles 22(2) and 29 of the Montreal Convention as contended by the appellant, to submit that the findings and conclusion of the learned trial Court was clear and cannot be twisted by the Appellant to suit its purpose. That the learned trial Court did not reach any conclusion in its judgment either expressly or by implication that the delivery of the baggage to the Respondents in Port Harcourt rendered the Montreal Convention inapplicable contrary to the argument of the appellant’s Counsel.
Responding to the submission of the Appellant’s Counsel on whether the learned trial Court had jurisdiction to entertain the suit, learned Senior Counsel referred to Article 31(2) under the Third Schedule of the Civil Aviation, to submit that it is a modification of the Montreal Convention applicable only to carriage of persons, baggage or cargo within Nigeria. That the governing or applicable convention to this case is that contained in SECOND SCHEDULE of the Civil Aviation Act which relates to International carriage. He said Article 31(2) of the Montreal Convention under the Second Schedule provides that the complaint must be made to the carrier within twenty one days forthwith after the discovery of damage. That the evidence of PW1 is to the effect that the Respondents lodged complaints on the delay, damage to their luggage and missing items forthwith to the representative of the Appellant as well as the Appellant’s agent.
With regard to the claim relating to delay of arrival of the Respondents’ luggage in Nigeria, learned Senior Counsel submitted that the Respondents effectively communicated their complaint to the Appellant beginning from the time of their arrival at the Murtala Mohammed International Airport, Lagos on the night of 7th January, 2013. He referred to paragraphs 9, 10, 11, 12, 17, 20, 23 of the Respondents Amended Statement of Claim at pages 148-150 of the record, particularly paragraph 23 where it was pleaded and evidence given that one of the officials of the Appellant, Mr. Okunade assured the Respondents that their luggage would arrive Port Harcourt by 5.00pm. That the pleadings and evidence established the acknowledgment of the Respondents’ complaint on delay of their luggage which was not denied or contradicted under cross-examination.
It is finally submitted that the Appellant cannot call in aid or be availed with the protection provided under Article 31(2) of the Montreal Convention looking at the willful and deliberate misconduct of the Appellant leading to the delay of the Respondents’ luggage. He referred to the evidence of DW1, the sole witness of the appellant under cross-examination at pages 414-415 of the record. Relying on Madu Abum Vs. Nwosu (2010) 13 NWLR (pt. 1212) 623, it is submitted that facts admitted need no further proof. That in the case Mekwunye Vs. Emirates Airline (supra), the Court has urged that Montreal Convention should not be given a water tight interpretation.
Learned Senior Counsel argued that the Respondents’ claims for delay on arrival and damages to Respondents luggage on the one hand and negligence and loss of each of items in the luggage, each of them is an independent claim in the Respondents’ suit and the effect of one on the jurisdiction of Court does not affect the jurisdiction of the Court in respect of the other claims. The Court is urged to hold that the condition precedent for instituting the suit was fulfilled by the Respondents making prompt report to the Appellant on 7th January, 2013 and the learned trial Judge validly heard and determined the suit while the Respondents’ claims for negligence and loss of items in the Respondents’ luggage are not contemplated under Article 31(2) of the Montreal Convention and the said provision does not require notice to be given to a carrier in respect of those claims.
The Court is urged to resolve the issues in favour of the Respondents and against the Appellant.
The contention of the Appellant in arguing issues one and three together is that the trial Court was wrong to have held that the delivery of the baggage to the Respondents in Port Harcourt rendered the Montreal Convention inapplicable to the contract of the parties. That the issue was raised suo motu by the trial Court and determined same without calling on the parties to address the Court on it.
Learned Senior Counsel in response submitted that there is nowhere in the record shown that the learned trial Court raised the issue of inapplicability of the Montreal Convention suo motu on the ground that delivery of the Respondents’ luggage in Port Harcourt was made outside the contract of parties. That it was the initiative of the Appellant’s Counsel in paragraph 5.7 of its final address at page 222 of the record of appeal, that the implication of taking the Respondents’ luggage to Port Harcourt was that such delivery was outside the agreement of the parties since their contract contemplated Lagos as the final destination of the Respondents’ trip.
For clarity paragraph 5.7 at page 222 reads:
“As admitted by PW1 during his cross-examination on 13th July, 2020, the delivery of the luggage to Port Harcourt was outside the agreement of the parties and it was at the exclusive cost of the Defendant.
Therefore, in determining the period of delay in delivery of the luggage, the proper approach is to reckon with the time the luggage arrived Lagos and not Port Harcourt.”
A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact does not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact existed in the litigation. Raising issue suo motu by the trial Court does not even arise in this case.
However the initiation of the issue by Appellant’s Counsel in paragraph 5.7 as reproduced above, a Judge by the nature of his adjudicatory function, can draw inference from stated facts on a case and by such inference, the Judge can arrive at a conclusion. It was therefore wrong to say that such inference, legitimately drawn from facts on the case are introduced suo motu. See Ikwenta Best Nigeria Ltd Vs. A-G, Rivers State (2008) 6 NWLR (pt. 1084) 612; N.N.P.C. Vs. Roven Shipping Ltd (2019) 9 NWLR (pt. 1676) 67 and David Vs. INEC (2020) 4 NWLR (pt. 1713) 188.
This issue is resolved against the Appellant.
It is also the submission of the Appellant’s Counsel that despite the delivery of the luggage to the Respondents in Port Harcourt, the Montreal Convention is the governing law of the contract of International Carriage which must be used in determining the rights and liabilities of the parties.
It is also the submission of the Appellant’s counsel that the contract between the parties in this case was for the Appellant to carry the Respondents on a return trip from Lagos, Nigeria to London United Kingdom with a stopover in Istanbul, Turkey. That the contract was therefore one of International Carriage by air governed by the Montreal Convention on question of liability and compensation. He referred to Article 1(1) and (2) of the Montreal Convention and Article 31(2) which provided for fourteen days to make complaint to the carrier on which baggage was placed in his/her disposal. Also referred is Article 22(2) of the Convention for the Unification of Certain Rules for International Carriage by Air which the Appellant relied on with regard to its liability if any for the alleged delay of the Respondents’ baggage.
The evidence of PW1 is to the effect that they were on board the defendant/appellant’s airline from Istanbul Turkey en route to Murtala Mohammed International Airport Lagos Nigeria, on the 7th of January, 2013. On arrival in Lagos, Nigeria their luggage duly weighed a total of 93 kilograms and tagged by the officials of the Appellant in Istanbul Airport, could not be found. They were later told that their luggage was left in Turkey but they were assured that the luggage would be brought to Lagos the next day. That it was on 13th January, 2013 when they saw their luggage and each of them was unlawfully tampered with. The padlock was removed and replaced with another. The luggage that weighed 93 kilogram had reduced to 77 kilogram.
Pw1 confirmed under cross-examination that some items were removed from their luggage and the luggage weighed 77 kilogram on arrival.
Pw2, the cargo handling agent attached to the Appellant’s company confirmed in his evidence before the trial Court that when he received the luggage of the Respondents he discovered that the boxes were obviously tempered with and the present weight of the luggage was far less than the weight on its original tag. He admitted under cross-examination that when the luggage arrived in Lagos, the luggage weighed 77 kilogram.
Dw1 the sales and traffic agent of the Appellant at Port Harcourt International Airport testified that the Respondents’ luggage weight at the Istanbul International Airport, Turkey was 93 Kilogram.
The trial Court after reviewing the evidence of the parties and the exhibits tendered held that the defendant/appellant failed to controvert the evidence of the plaintiffs/respondents in proof of their claim. That with evidence before the Court, the Appellant cannot rely on Section 22(2) of the Montreal Convention. At page 457 of the record, the learned trial judge had this to say:
“In my view, the argument that the arrival of the luggage to Port Harcourt was outside the agreement of the parties, is fatal to the case of the defendant that the Montreal Convention is strictly the applicable law, particularly when it can’t be shown where actually, the plaintiffs’ items claimed, got removed as alleged, either between Istanbul to Lagos or Lagos to Port Harcourt. On the face of the foregoing, the submission made by learned defence counsel on Section 22(2) and other related provisions of the convention, can’t be sustained in the circumstance. I so hold.”
I must say I agree with this reasoning of the trial Court in this regard.
The Supreme Court in Mekwunye Vs Emirates Airlines (2019) 9 NWLR (Pt. 1677) 191 at 199 held that Montreal Convention ought to be interpreted in order that the purpose of the enactment would be best understood. The convention is to be read as a whole and not in bits and pieces to understand the intention of the makers. See Kaydee Ventures Ltd Vs Minister FCT (2010)7 NWLR (Pt. 1192) 171 and Oyeniran Vs Egbetola (1997) 5 NWLR (Pt. 504) 122.
In the instant case, the Appellant’s willful misconduct of tampering with the Respondents’ luggage and delay in delivery of same disentitled the Appellant from pleading Article 22(2) thereof as it does not avail it. See Cameroon Airlines Vs Otutuizu (2011) 4 NWLR (Pt. 1238)512 and Harka Air Services Ltd Vs Keazor (2011) 13 NWLR (Pt. 1264) 320.
From the facts of the instant case, the Respondents’ complaint to the Appellant was made timeously on their arrival from Istanbul to Lagos on 7th January, 2013 that they could not find their luggage which the Appellant acknowledged and promised delivery the following day. That delivery was not made until the 13th of January, 2013 when the Respondents found their luggage and discovered that it was tampered with. The Appellant acknowledged the custody of the luggage with it and acknowledged that it was actually tampered with. The luggage that weighed 93 kilograms in Istanbul and tagged as such was reduced to 77 Kilogram. The Appellant’s conduct amount to breach of the contract it had with the Respondents and so cannot call in aid the Montreal Convention as it cannot apply to limit the liability of the Appellant to the Respondents for that breach. The issues are resolved against the Appellant.
With regard to the submissions of the Appellant’s counsel on issue two that the trial Court had no jurisdiction to entertain the suit, I agree with the submission of the learned senior counsel in its entirety in this regard that the trial Court had jurisdiction which suit it heard and determined same.
On issue 4 “Whether the trial Court was right when it held that the Appellant did not regularize its statement of defence” the issue is relevant. At page 327 of the record is a motion on Notice filed on 27th November, 2020 filed by defendant/ applicant/appellant for extension of time within which the defendant/applicant may file its statement of defence and all accompanying processes, the time allowed by the Rules of this Honourable Court having elapsed. However, there is nothing on record to show that the Court was moved in respect of this application. That notwithstanding the learned trial Judge in the interest of justice and fairness considered the failure to file within time, as borne out of the omission of counsel which should not be visited on the Appellant and therefore proceeded to consider the defence which has been filed. The issue therefore is irrelevant since it has been considered. The issue has become academic and it means the act has become spent and no longer of any benefit or value and it is not worth spending time and energy on it. It will have no value on the Appellant even if judgment is to be given in his favour. No useful purpose will be achieved in going into this issue. It is accordingly struck out. See Ijaodola Vs Unilorin Governing Council (2018) 14 NWLR (Pt. 1638) 32 at 36; Oke Vs Mimiko(No1) 2014 1 NWLR (Pt. 1388) 225 and Odedo Vs Oguebego (2015) 13 NWLR (Pt. 1476) 229.
The appellant’s reply brief is discountenanced for embellishing the main brief.
All issues having been resolved against the Appellant, the result is that the appeal lacks merit, and it is accordingly dismissed. Appeal dismissed. Costs of N200,000.00 awarded for the Respondents against the Appellant.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege and advantage to read in draft, the judgment just delivered by my learned brother. T. Y. Hassan, JCA in which the appeal was adjudged as lacking in merit and was accordingly dismissed with costs awarded in favour of the Respondent.
I really do not have any useful additions that may better enhance the quality of the reasoning in the lead judgment which basically deal with the law and jurisprudence that govern claims arising from aviation matters.
I wholeheartedly adopt the reasoning in the lead judgment just delivered, and I also will dismiss the appeal as it lacks merit, and I also abide by the consequential orders made as to costs.
Appeal is dismissed.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I had the privilege of reading the judgment delivered by my learned brother, Tani Yusuf Hassan, J.C.A., in the draft. I agree with the reasoning, conclusions and final order made in the judgment.
I affirm the judgment of the lower Court. I dismiss this appeal. I award cost in the sum of N200,000.00 (Two Hundred Thousand Naira) against the Appellant, in favour of the Respondents.
Appearances:
T. J. Tokumbo, Esq., with him, A. Adiyehun, Esq. For Appellant(s)
C.I. Enweluzo (SAN), with him, Krukrubo Ndukum and P.I. Daniel For Respondent(s)