South African Airways V. Prosoft Technologies Limited (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the judgment of the Federal High Court, Lagos Division; coram Buba J., delivered on 28th May, 2014. The Respondent/Claimant had sought against the Appellant/Defendant the following reliefs:

7. The Plaintiffs claim against the Defendant as a courier for reward is damages of US$53036.53 in naira equivalent at the exchange rate of N150.00 per US dollar for the failure by the defendant, its agents and or servants to deliver to the plaintiff its computer hardware of several parts delivered to defendant in South Africa by the plaintiffs agents for delivery to the plaintiffs in Lagos under waybill No. 08380218025 dated 20/10/2010.

In the alternative the plaintiffs claims against the defendant damages in naira of US$53036 to US dollar in naira for breach of duty as a bailee of the plaintiffs of computer hardware delivered by the plaintiff to the defendant in South Africa as a common carrier for delivery to the plaintiff in Lagos which the defendant has failed to deliver to the plaintiff despite repeated demands.

2. The plaintiff claims interest of 21% from 20/10/2010 to date of judgment and 10% interest on judgment debt until it is fully liquidated.”

A brief fact of the dispute leading to this appeal will suffice. The Respondent entered into a contract of carriage by air with the Appellant to carr5r five (5) packages containing computer hardware (“the cargo”) from Johannesburg, South Africa to Lagos, Nigeria on or about the 19th of October, 2010, as evidenced by Air Waybill number 08380218025 but that the Appellant did not deliver the said cargo whose value is in the sum of US$53,036.53 to it in Lagos.

The Respondent alleged that it made exhaustive enquiries from the Appellant both in South Africa and in Lagos on the whereabouts of the cargo but to no avail and that it made demands in writing in respect of the cargo on the Appellant on 12th December, 2010 and 14th of December, 2010 but that the Appellant refused to return the cargo.

The Respondent subsequently instituted the action leading to this appeal vide a Writ of Summons and Statement of Claim dated and filed 16/02/2011. Pleadings were filed and exchanged. At the trial, both parties called one witness each. After the address of counsel, the learned trial judge delivered his final judgment on 28th May, 2014 wherein it dismissed the Respondent’s relief No. 2 and the 1st leg of relief 3 as per the Amended Statement of Claim.

Being dissatisfied with the judgment of the lower court, the Appellant filed a Notice of Appeal dated 25th August, 2014 on three (3) grounds. The Appellant filed its Brief of Argument dated 24/11/2014 and filed on 4/11/2014 as well as a Reply Brief dated 30/06/2015 and filed 01/07/2015. Both were settled by L. Fubara and Akinloye Ajayi of Aelex Law Firm. Two issues were formulated for determination thus:

1. Whether the lower court was right when it awarded damages in the sum of N7,955,389.00 in favour of the Respondent, notwithstanding that there was nothing on the records showing that the Respondent made a special declaration in respect of the lost cargo and that it paid a supplementary sum (if required). (Ground 1 & 2).
2. Whether the lower court was right when it held that the 2nd issue canvassed by the Appellant in its final address was a non-issue, thereby failing to determine the point whether or not, in the circumstances of the case, the limitation of liability as prescribed under the Montreal Convention 1990 should apply to the Appellant’s liability (if any). (Ground 3).

The Respondent’s Brief of Argument dated 27/10/2015 and filed 03/02/2015 but deemed properly filed, 17/06/2015 is settled by G. I. J. Akhigbe. A sole issue was nominated for the determination of this appeal thus:

“Whether the Judgment of the lower court was founded solely on the provisions of the Civil Aviation Act 2006 and the regulations and Articles made thereunder for the Respondent to be entitled to the judgment of the court on its claims.”

At the hearing of the appeal on 08/02/2014, counsel adopted their briefs and urged us, accordingly.

Arguing issue one, Appellant’s counsel submitted that the lower court rightly found that the contract between the parties was one for carriage by air of the Respondent’s cargo and that it is governed by the Montreal Convention. He referred to the judgment of the lower court at page 309 to 310 of the record before then submitting that the lower court ought to have proceeded to determine if the Respondent proved its case pursuant to or in line with the Montreal Convention.

Counsel contended that Article 18 of the Montreal Convention makes the carrier liable for damage sustained in the event of loss of cargo provided the loss took place during the carriage by air and goes on to define ‘carriage by air’. It is also the contention of counsel that Article 22 of the Montreal Convention limits the liability of the carrier in the case of damages for loss of cargo.

Counsel submitted that from the pleadings and evidence at the lower court, particularly on the face of Exhibit P3 (d) (Copy of Air Waybill No.: 083-80218025 dated 19th October, 2010), it is clear that there was no special declaration made by the Respondent as required by law, even though the Appellant put the Respondent to proof on this point as per paragraph 4 of the Statement of Defence and its witness also gave evidence in this regard at paragraph 7 of his Witness Statement on Oath. He cited AKANBI v. ALAO [1989] NWLR (Pt. 108) 118; TNDOH v. CFAO of ACCRA & ANOR (1944) 10 WACA 186; ATUGBUE v. CHIME (1963) 1 ALL NLR 208.

Counsel submitted that in the absence of such required special declaration, the Appellant’s liability (if any) became automatically limited in line with the provisions of Article 22(3) of the Convention and that there is even an endorsement on the face of Exhibit P3 (d) indicating that the carrier (the Appellant) shall be entitled to limit its liability under the Montreal Convention. It is the submission of counsel that the Respondent failed to declare the value for the cargo and also failed to do customs declaration.