VIRGIN ATLANTIC AIRWAYS v. AMARAN (2018)

In The Court of Appeal of Nigeria

On Friday, the 29th day of June, 2018

CA/L/159/2017

Before Their Lordships

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria


Between

VIRGIN ATLANTIC AIRWAYS –Appellant

AND

MRS. FRANCESCA PABLO AMARAN –Respondent

…………………….A……………………YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Lagos, coram C. J. ANEKE, J delivered on the 30th November, 2016 in suit No: FHC/L/CS/50/2012 wherein judgment was entered for the Respondent and the Court pronounced the following award:
i. The sum of N216,000.00(Two Hundred and Sixteen Thousand Naira) paid for return journey from London to Accra on the e-ticket;
ii. 21% interest per annum on the said N216,000.00 from the 2th November, 2011 to 30/11/2016
iii. 65,000 Francs
iv. the Plaintiff is entitled to the cost of N100,000.00 (one Hundred Thousand Naira) against the Defendant.
v. 10% interest per annum is awarded on the judgment debt
vi. all other claims of the plaintiff are hereby dismissed.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on the 23/1/2017 and dated same day setting out a sole ground of Appeal.
The Respondent as Plaintiff took out a writ against the Appellant claiming certain reliefs which she contended arose from a breach of contract for international carriage by air with the Appellant when she and her son were denied boarding on her e-ticket. The reliefs state thus:
i. The refund of the sum of N216,000.00 (Two hundred and sixteen Thousand Naira) being the balance of the upper class fare from Lagos to Accra by carriage by Air by the 1st Defendant Aircraft, which they failed to honour on the 20th of November 2011, by denying the Plaintiff and her son, to board the 1st defendant’s Aircraft.
ii. The payment of the sum of N10,000,000.00 (Ten Million Naira) being General Damages for the humiliation, stress, inconvenience, embarrassment, ridicule and being made to look like a fraudulent person by the Defendants in their refusal to allow the Plaintiff and her son board the flight on the 20th of November 2011, which they had a valid and confirmed ticket.
iii. The payment of the sum of N3,000,000,00 (Three Million Naira) being legal cost for the institution of this Action.
iv. Interest on all sum due to the plaintiff at the rate of 21% per annum from the 20th November 2011 till judgment is delivered, and thereafter at the same rate or any other rate as this Court deems fit till final liquidation of the Judgment sum.
The Appellant denied liability and upon due trial, the Court below entered judgment in favour of the Respondent as per the award produced above, aggrieved, the Appellant filed this appeal.
The Appellant filed its Brief of Argument on the 8/2/2017 dated same date and it distilled a lone issue thus:
Whether the Federal High Court was right in relying on the convention for the unification of certain rules relating to international carriage by air, 1929 (otherwise known as the ???Warsaw Convention) as the basis of its judgment in favour of the Respondent, when the said law had been repealed by virtue of ARTICLE 51(1) OF THE ACT TO REPEAL THE CIVIL AVIATION ACT CAP 51 LAWS OF THE FEDERATION OF NIGERIA 1990 AS AMENDED AND TO RE-ENACT THE CIVIL AVIATION ACT OF CIVIL AVIATION ESTABLISHMENT OF THE NIGERIAN CIVIL AVIATION AUTHORITY AND FOR RELATED MATTER (OTHERWISE CALLED THE CIVIL AVIATION ACT 2006).
The Respondent on her part formulated two issues for determination thus:
i. Whether the learned trial judge was not at liability (sic) to use the Warsaw Convention or Montreal Convention as provided under Articles 15:3:1, 15:3:5 and 15:3:7:1, of the appellant conditions of carriage where the contract of carriage between the appellant and the respondent provided as follows:
GENERAL LIMITATION:
ARTICLE 15:3:1
Whenever the Warsaw Convention or the Montreal convention applies to your carriage, our liability will be subject to the rules and limitations of the applicable convention, as amended by EC regulation 2017/97 and in the case of passenger delay, as amended by EC regulation 261/2004.
Except where other specific provision is made in these conditions of carriage, we shall be liable to you only for recoverable compensatory damages for proven losses and cost in accordance with the Warsaw Convention or the Montreal as applicable.
Article15:3:7
Nothing in these conditions of carriage
Article15: 3: 7:1
Shall waive any exclusion or limitation of our liability under the Warsaw Convention or the Montreal Convention applicable laws unless otherwise expressly stated by us or.
ii. Whether the appellant not having any complaint of miscarriage of justice against the judgment, the judgment should not be set aside based on the

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Warsaw Convention applied by the judge as provided in the contract of carriage, in arriving at the liability of the appellant?
Before settling down to which of the issues should be adopted for determination, the appellant in its Reply on points of law reacted to the number of issues formulated by the Respondent, it objected to the prolixity of issues since there was only one ground of appeal. Appellant argued that the two issues distilled by the Respondent should be struck out. Indeed the notice of appeal evinces a sole ground of appeal and as required by the rules of Court, a party in the appeal cannot distill more issue than the number of grounds, see NWEZE V STATE (2017) LPELR- 42344 (SC) wherein the apex Court said:
“As a preliminary point, the respondent raised an objection against formulation of three issues out of two grounds of appeal by the appellant. Without having to belabor this point, I seek to state quickly that, as rightly submitted by the respondent’s counsel, the Courts have constantly frowned at formulating more issues from fewer grounds of appeal. In other words, there should be no proliferation of issues over and above the grounds of appeal raised. In support of this principle is the case of Orji v. State (2008) 4 SCJN 85 at 203 also the case of Amodu v. Police College Maiduguri (2009) FWLR (Pt. 488) 195 @ 196.” Per OGUNBIYI.
So it is unacceptable for counsel to proliferate issues thereby offending the rule against prolixity. In the same vein, a counsel is also not allowed to split one ground into two and generate 2 issues therefrom, see NACB LTD V OZOEMELAM (2016) LPELR- 26051 (SC) held:
“A more fundamental vice bedeviling the Respondent’s issues is the marriage of the said issues with the appellant’s three grounds of appeal. Issue 1 is said to be a product of grounds 2 and 3 of the Notice of Appeal while issues 2 and 3 are framed from appellant’s grounds 1 and 3. Ground 3 of the Notice of Appeal is therefore split into three to form issues 1, 2 and 3. Since one issue is framed from one, but usually a combination of grounds of appeal, it is manifestly wrong to split one ground of appeal into three issues as the Respondent has done. It is undesirable to split an issue in appeal. See Labiyi v. Anretiola (supra). It is equally not appropriate to split a ground of appeal in the formulation of issues.” Per NGWUTA, J.S.C.
The Respondent having breached the rules, the two issues formulated shall be discountenanced and that leaves the sole issue formulated by the Appellant for resolution in this appeal.
Discountenancing the issues distilled by the Respondent would also resolve the objection taken that the issues do not arise from the ground of appeal and since the Respondent did not file a Respondents Notice or cross appeal. Whether a Respondent who has not cross-appealed or filed a Respondent’s notice can raise an issue outside those formulated by an appellant was answered in the case of PRINCE OIL LTD V GTB PLC (2016) LPELR-40206(CA) which held thus:
“It is important to note that the respondent has not cross-appealed, and so cannot formulate an issue outside the grounds of appeal filed by the appellant, without seeking and obtaining leave of this Court first. Though a respondent is entitled to frame his own issues for determination which may be the same or entirely different from those formulated for the appellant those issues must of necessity be distilled from and related to the grounds of appeal filed by the appellant. If a respondent wants to raise an issue for the first time on appeal in the Court of Appeal, then that respondent ought to ask for leave of Court to do so, failing which he will be left high and dry. See NAWA v. ATTORNEY GENERAL CROSS RIVER STATE (2008) All FWLR part 401 at 827. The law is clear that any issue formulated by the Respondent outside the Appellants grounds of appeal is incompetent and liable to be struck out. See OJEGBE v. OMATSONE (1999) 6 NWLR (Pt. 608) 591 SC.
Appellant, in the sole issue, commenced arguments by identifying the nature of the contract between the parties which is International Carriage by air and as regulated by National laws and international conventions which he listed. Appellant further argued that the date the cause of action arose would determine which law and or convention applies in view of repeals and recent protocols currently in operation. Reviewing the statement of claim, appellant settled on the fact that the cause of action arose in November 2011 and consequently, the 2006 Civil Aviation Act is applicable and in that Act, the Warsaw Convention was repealed thus grounding its contention that the Court below should not have awarded compensation under a repealed law, relied on the following: ATTORNEY GENERAL OF THE FEDERATION V ATTORNEY GENERAL OF LAGOS STATE (2013) LPELR-20974; AHMED V KASSIM (1958) SCNLR 28 AT 30; ADEWUMI V A.G. EKITI STATE & ORS (2002) SCNJ 27; OLALOMI IND V NIDB LTD(2009) 16 NWLR (PT. 1167) 266; ATTORNEY GENERAL OF ENUGU STATE V UGWU(2016) LPELR-40964; IBEABUCHI & ORS V IKPOKPO & ORS (2013) LPELR-20074(CA); NIGERIAN BREWERIES PLC V THE GOVERNOR OF OYO STATE & ORS (2011) LPELR-4610 (CA); ADISA V OYINWOLA (2000) 10 NWLR (PT.674) 116 AT 202; TEXACO PANAMA INC V SHELL P.D.C.N. LTD (2002) 5 NWLR (PT.759) 211; FRN V OSAHON (2006) 5 NWLR (PT. 973) 361; RHEIN MASS UND SEE GMBH V RIVWAY LINES LTD (1998) 5 NWLR (PT. 549) 265 to urge the Court to interpret the clear provisions of the Civil Aviation Act and find that the Court below erred in relying on the Warsaw Convention. Furthermore, appellant contended that trial Court’s reliance on the cases of HARKA AIR SERVICE (NIG) LIMITED V KEAZOR(2011) 6-7 SC (PT II) and CAMEROON AIRLINES V OTUTUIZU (2011) 1-2 SC (Pt. 111) 200 was wrong because the decisions were based on

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the repealed Warsaw Convention decided before the repeal. Arguing further, the appellant submitted that the award was based on a fault liability instead of a no fault liability regime. Submitting that the two regimes are different and the error occasioned a miscarriage of justice.
The Appellant contended that Montreal Convention is applicable to Nigeria by virtue of its domestication the basis of its incorporation into our National laws. The appellant urged the Court to allow the appeal.
The Respondent on her part referred to some relevant articles, namely 15:3:1, 15:3:5 and 15:3:7:1 of the Carriage by Air contract entered into by the parties wherein the Warsaw and Montreal Conventions were specifically incorporated in the contract. Article 15 is on liability for damage and the two conventions were to be applicable to any claim and therefore, both parties are bound by the terms of the agreement, suggesting that the Court below was not wrong in applying what the agreement provided.
On the repeal, the Respondent contended that the Warsaw Convention was not specifically repealed by the Civil Aviation Act 2006 and therefore it is still part of our laws. Arguing further on the award made, she urged the Court not to interfere and relied on NDAYAKO V DANTORO (2004) 13 NWLR (PT.889) 199 and F.R.I.N V GOLD (2007) 1 NWLR (Pt. 1044) 7. Respondent submitted that a party cannot be denied any relief merely because he seeks it under a wrong law or rule of Court, citingBELLO V A.G. OYO STATE (1986) 5 NWLR (Pt. 45) 828 and FALOBI V FALOBI (1976) 9-10 SC 1.
On sanctity of contract the Respondent relied on IFETA V SPDC (NIG) LTD (2006) 8 NWLR (Pt. 983) and WOMILOJU V KIKI (2009) 16 NWLR (Pt. 1166) 146 to urge the Court enforce the contract.
The Appellant in reply attacked the issues formulated by the respondent and submitted that it is against the rules of the Court and therefore should be struck out for proliferation of issues and formulating issues outside the ground of appeal, relied on ONYERIKA V UZOUKWU (2016) LPELR- 40217 (CA).
The Appellant argued that the word applicable in Article 15 of the contract of carriage by air implies the applicable law in the National jurisdiction determining the claim and Section 77 of the Civil Aviation Act had excluded the Warsaw convention because it is not applicable to Nigeria and that the Montreal convention is now the applicable convention, relied on EMIRATE AIRLINE V TOCHUKWU AFORKA & ANOR (2014) LPELR-22686 (CA). In the alternative, the Appellant argued that assuming the Warsaw Convention was not repealed, then upon domestication of the Montreal convention, it shall prevail over the Warsaw Convention as per Article 55 of the Montreal Convention. Arguing further, appellant contended that the Court below could not have given the award as a franc denominated award when the claim was not made in franc, relying on NZENWATA & ORS V NZENWATA(2016) LPELR-41089. It finally urged the Court to allow the appeal.
RESOLUTION
The Appellant’s sole issue is premised on the trial Court’s reliance on Warsaw Convention and not the Montreal Convention as allowed by the Civil Aviation Act to award compensation to the Respondent because to the appellant, the Civil Aviation Act, 2006 repealed the Warsaw Convention and therefore it is not applicable to the claim filed by the Respondent.
The Respondent in its Amended Statement of Claim claimed a refund of the unused return leg of the ticket with which she was denied boarding and damages. The appellant in its statement of Defence averred facts in its effort to limit its liability and pleaded at Paragraph 20-21 of the Amended statement of Defence (page 231 of the Record) thus:
20. That assuming the Defendant is found liable to the Plaintiff, the Defendant shall contend that its liability to the Plaintiff its limitation of liability is a fundamental provision of the contract entered into between the Plaintiff and the Defendant’s conditions of carriage and the laws and conventions governing international carriage by air which is part of Nigerian Law.
21. That pursuant to the laws and conventions governing the contract of international carriage by air entered into between the parties the plaintiff is not entitled to the quantum of damages claimed in this action.

So neither the pleadings of the Appellant nor the Respondent mentioned in specifics the particular convention relevant in the determination of the claim but the conditions of carriage by air between the appellant and passengers provided the relevant conventions applicable in any contract. It is settled law that parties and the Court are bound by the terms of the contract, see AFRICAN INTERNATIONAL BANK LTD V INTEGRATED DIMENSIONAL SYSTEM LTD (2012)LPELR-9710(SC) which held:
“The parties are bound by the terms and conditions contained in their contract, and cannot act outside these terms and conditions. Neither of the parties to a contract can alter nor read into a written agreement a term which is not embodied in it.”
The issue of whether the Respondent is entitled to any compensation is dependent on the terms of the contract and in order to know which law/convention is applicable, the date the cause of action arose is relevant. Going by the record of Appeal, the cause of action arose on the 20th November 2011 and the law in place then is the Civil Aviation Act 2006. The starting point is the ticket and the Appellant’s Conditions of carriage which confirms the existence of a contract relied on by both parties. The Conditions of Carriage by air mentioned both the Warsaw and Montreal Conventions making both applicable. The Conditions of Carriage, Article 9.4 provides for the payment of compensation in the case of denied boarding and goes on to provide at Article 9.6 under No further liability as follows:
Upon the occurrence of any of the events set out in Article 9, except as otherwise provided by the Warsaw Convention or the Montreal Convention (as applicable) or Article 15, the benefits and remedies specified in Articles 9.2 to 9.5 are the sole and exclusive remedies available to you and we shall have no further liability to you.

Furthermore, Article 15:3:7 and 15:3:7:1 of the Conditions of Carriage by Air contract provides as follows:
Article15:3:7- Nothing in these conditions of carriage
Article 15:3:7:1 – Shall waive any exclusion or limitation of our liability under the Warsaw Convention or the Montreal Convention applicable laws unless otherwise expressly stated by us or.

It is crystal clear that the Appellant by its own conditions of carriage by Air called into play the Warsaw and Montreal Conventions in any of its carriage by Air. The argument that the Civil Aviation Act repealed the Warsaw Convention needs a closer consideration. The Appellant relied on Article 51(1). First, the Act is presented in sections not Articles as is the case with International Conventions

…………………….D……………………

and Protocols. The Schedules which are subsidiary legislations and some conventions are reflected in Articles under the particular schedules listed under the Act. Counsel should use correct references so as not to mislead the Court.
Section 51(1) of the Civil Aviation Act provides for Patent Claims. However, Section 77 provides for repeals and it states thus:
(1) Subject to the provision of Subsections (2) of this section, the following enactments are hereby repealed:-
(a) Carriage by Air (Colonies territories and other trust territories) Colonial order 1953.
(b) Civil Aviation Act Cap 51 LFN 1990
(c) Civil Aviation (Amendment Act) 1999
And
(d) Nigerian Civil Aviation Authority (Establishment) Act, No. 49 1999.
(2) All regulations, bye laws, orders and subsidiary legislations made under Civil Aviation Act 1964 (Cap 51 LFN 1990) shall continue to be in force until new regulations, bye-laws orders and subsidiary legislation are made pursuant to this Act.

It was argued on behalf of the Appellant that Article 51(1) says the convention shall prevail over any rules which apply to international carriage.
I have reproduced Section 77 which is on repeal and that Section 51(1) made provision for patent Claims. The claim was not on any patent. I cannot see where the learned counsel got that provision from. However, I shall use Section 77 which makes provision for appeals to resolve the issue.
I can take judicial Notice of the fact that Nigeria is a signatory to both the Warsaw and Montreal Conventions. Historically, the Montreal Convention was adopted to incorporate all related regulations that came into place after the Warsaw Convention had been signed. Montreal Convention is therefore a comprehensive document incorporating all protocols made after the Warsaw convention. Now is the Carriage by air (Colonies, Protectorate and Trust territories) Order 1953 Domesticating the Warsaw convention 1929 the same as Carriage by Air (Colonies territories and other Trust territories) Colonial Order 1953 mentioned in the repeal section of the Civil Aviation Act? The answer was given in the case of SOUTH AFRICAN AIRWAYS V PROSOFT TECHNOLOGIES (2016) LPELR-40573 thus:
“It is beyond dispute that the Carriage by Air (Colonies, Territories and other Trust Territories) Colonial Order, 1953 referred to by the trial judge has been repealed by virtue of Section 77 of the Civil Aviation Act, 2006, so that the provision as to ‘willful misconduct’ applicable under the Warsaw Convention becomes inapplicable. In the Report by United Nations Conference on Trade and Development (UNCTAD) on Carriage of goods by Air: A Guide to International Legal Framework, 2006, the UNCTAD Secretariat noted at pages 38 to 39 thus: “150. Under the Warsaw Convention 1929 a carrier may not rely on the monetary cap limiting his liability in cases where the carrier or any of his agents acting within the scope of their employment are guilty of “willful misconduct. 
The applicability of the Warsaw Convention as Amended at The Hague 1955 in Nigeria was initially by virtue of the Carriage by Air (Colonies, Protectorate and Trust) Order, 1953. It came into operation on the 1st day of January 1954, and it found root in the Laws of the Federation of Nigeria and Lagos 1958 Vo. XI. Therefore, until its repeal, it was an existing law in Nigeria and had effect on matters which relate to the rights and liabilities of the carriers.
However, as observed earlier, Section 77 of the Civil Aviation Act repealed the said Warsaw Convention. I can say authoritatively that the convention is not applicable in Nigeria for carriage by air to and from Nigeria. The Appellant was right in contending that Warsaw convention is no longer applicable in Nigeria and that it has been replaced by the Montreal Convention.
Having said as above, the parties to the contract herein imported the Warsaw Convention into their relationship. The following Articles speak for themselves.
Article15:3:7
Nothing in these conditions of carriage
ARTICLE 15:3:7:1
Shall waive exclusion or limitation of our liability under the Warsaw Convention or the Montreal Convention or the Montreal Convention applicable Laws unless otherwise expressly stated by us or.
The next contention to resolve is that, the parties have imported both conventions into their contract and stated that it shall not be waived so the Court must give sanctity to the terms of such contract by applying the terms of either convention in assessing damages to the Respondent. The Court merely gave teeth to the agreement of the parties and since they wanted the Warsaw Convention to apply, the Court is under an obligation to do so. The Unification of certain Rules relating to International carriage by air which is replaced by Montreal Convention was repealed by the Civil Aviation Act, 2006 but the Act affects carriage by air to and from Nigeria only. The application of the Warsaw Convention by the Court in determining the rights of the parties under the Condition of carriage by Air as designated by the Appellant cannot be faulted.
The argument of the Appellant that the Warsaw convention is not applicable because of its repeal would ordinarily have been an argument that is unassailable but Section 48 of the Civil Aviation Act is at cross purposes with the stance and submission of the Appellant, it provides thus:
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 force of law and apply to international carriage by air to and from Nigeria, in relation to any carriage by air 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.
The contract or carriage herein, was not to and from Nigeria. It was the contract that was made in Nigeria thus trial in Nigeria which is allowed.
The Court below applied Article 22(1) of the Warsaw Convention to determine the liability of the appellant to 65,000 Francs in favour of the Respondent which has a maximum limit of N125,000 Francs. The appellant argued that it is on a wrong premise, of fault liability regime instead of no fault liability regime. The Appellant was found wanting and at fault under the contract before applying the fault liability regime. How then can there be no fault on the part of the Appellant who denied the Respondent boarding when she had a valid ticket issued by them? Those findings of the trial Court were not appealed against.

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The liability regimes may be different between the Warsaw and Montreal Convention; the key issue is that the contract approved the application of either or both in the contract between the parties. As posited by the Appellant, once a country domesticates or incorporates the provisions of an international convention into its National laws, they become applicable without recourse to their respective domestic laws. That means it is the international stipulations that apply which was what the Court below applied. This is also because the flight was not to and from Nigeria. If the Appellant did not want the Warsaw Convention to apply it shouldn’t have mentioned it in the Conditions of carriage by air agreement. Assuming that the Warsaw Convention was indeed not applicability to the contract, would reliance by the Court be wrong when the Montreal convention also provides for monetary compensation? The Appellant did not contend that the amount awarded is far in excess of the amount provided in the Montreal convention. The Appellant did not submit in that light and did not say the amount awarded is excessive and more so the denomination of Francs can be converted to either dollars or Naira as the case may be. See BROADLINE ENTERPRISES LTD V MONTEREY MARITIME CORPORATION (1995) LPELR-807 (SC) and ADEDOYIN V IGBOBI DEVT.CO.LTD (2014) LPELR-22994(CA) which held thus:
Before I proceed, I need to make it clear that the fact that a business transaction was entered into in Nigeria does not preclude the application of foreign currency or the Court awarding same if it is part of the transaction. In WITT & BUSCH LTD VS. DALE POWER SYSTEMS PLC (2007) 5-6 SC 121, it was held by the Supreme Court that, it has now been firmly established that a Nigerian Court can make an award in foreign currency. See also UNITED BANK FOR AFRICA PLC VS. BTL INDUSTRIES LTD (2004) 18 NWLR (PT 904) 180 and MOMAH VS.VAB PETROLEUM INC (2000) 1 SCNQR 348. In SS. GMBH VS. TUNDE DOSUNMU INDUSTRIES LTD (2010) 11 NWLR (PT 1206) 589, the Apex Court held that:- “It is no longer in doubt and this is settled that parties can make an agreement or enter into a contract to pay in foreign currency and a Nigerian Court can, in its discretion, award same accordingly. See the case ofMETRONEX (NIG) LTD VS. GRIFFIN & GEORGE (1991) 1 NWLR (PT 169) 651 at 659; OLAWOYIN ENTERPRISES LTD VS. SJ & M (1992) 4 NWLR (235) 361 at 385; BROADLINE ENTERPRISES LTD VS. MONTEREY MARITIME CORPORATION (1995) 9 NWLR (PT.417) 1 (1995) 10 SCNJ at 25 citing MILIANGOS VS. GEORGE FRANK (TEXTILE) LTD (1975) 3 ALL ER 801; UBN LTD VS. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (PT 421) 558; (1995) 12 SCNJ 175; PROSPECT TEXTILE MILLS (NIG) LTD VS. I C I PLC ENGLAND (1996) 6 NWLR (PT 457) 668 at 682) and UBA PLC VS. BTL INDUSTRIES LTD (2004) 18 NWLR (PT 904) 180.”
There can be no doubt therefore that Courts, in appropriate cases, have the power and jurisdiction to enter judgment in favour of a party in foreign currency claimed or as allowed by the contractual document.
Furthermore, awards duly deserved but awarded under a wrong law usually stand in order to meet the justice of the case. A party cannot be denied a relief merely because he prayed for the relief under a wrong law, see FALOBI V FALOBI (1976) 9-10 SC 1 and OBOMHENSE V ERHAHON (1993) LPELR-2191 which held thus;
“I agree that the principle is now well established that where a relief or remedy claimed under a wrong law is supported by facts establishing the remedy, the claim will not be denied merely because of the wrong law relied upon… See Falobi v. Falobi (1976) NMLR 169.

This principle is founded on justice and common sense. But in order to benefit from the principle the facts relied upon must support the correct law to be applied.”
Furthermore, the contract allows the application of both conventions, therefore, the Court had the liberty to apply either the Warsaw or Montreal Convention to determine the liability of the Appellant and the quantum of compensation. The provision of Section 48 of the Civil Aviation Act is not applicable because carriage was not to or from Nigeria.

This appeal is unmeritorious and is hereby dismissed. The judgment of the trial Court delivered on the 30/11/2016 is hereby affirmed.
Cost of N200,000.00 to the Respondent.

CROSS APPEAL
The Respondent/Cross appellant filed a Notice of Cross Appeal dated 28/2/2017 setting out one ground of Appeal. The Respondent/Cross Appellant was the claimant at the Court below and judgment entered in her favour but dissatisfied with the sum 65,000 Francs awarded as compensation appealed against the award.

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The Respondent/Cross Appellant filed its Cross appellant’s brief on the 10/3/17 and distilled a sole issue for determination as follows:
Whether the cross appellant is not entitled to the award of 125,000 francs for an individual passenger as held by the Court and the balance payment of the sum of 60,000 francs?
The Appellant/Cross Respondent’s Brief filed on the 29/3/17 formulated a sole issue as follows:
Whether in the absence of pleadings and evidence in support of the award of 65,000 francs, the lower Court should have awarded the said sum or any higher sum under the Conventions?
Having considered the Notice of Appeal, the Record of Appeal and the briefs in respect of the cross appeal, the issue distilled by the cross appellant will adequately dispose of the appeal and therefore that shall be the issue for determination herein.
The Respondent/Cross Appellant contended that the Court below should have awarded the maximum amount stated in Article 22 of the Warsaw convention, that the award of 65,000 francs was in error. She urged the Court to rely on Order 4 Rule 9(a) of the Rules of this Court to interfere and award the maximum compensation as provided in the Warsaw Convention, relied on STIRLING CIVIL ENG. (NIG) LTD V YAHAYA (2005) 11 NWLR (Pt. 935) 189 to urge the Court to allow the cross appeal.
The Appellant/cross respondent in response submitted that there should not been an award for the compensation made in Francs by the Court below and that the resolution of the main appeal should silence this cross appeal, relying on UNITY BANK V BOUARI (2008) LPELR-SC 270/2002 to urge the Court to dismiss the cross appeal. Appellant argued that the sole ground and issue in the cross appeal are incompetent because the ground of appeal does not arise from the judgment appealed against citing OLONADE & ANOR V SOWEMIMO(2014) LPELR-22914 (SC). It contended that the trial judge considered the Cross appellant as one person even though her son was reflected on the ticket.
It was further argued on behalf of the Cross Respondent that the Court cannot interfere with an exercise of trial Court’s discretion, citing PDP V BALLANTYNE & ORS (2011) LPELR-CA/C/NAEA/134/2011. It further argued that the Court below shouldn???t have ordered that the award made in francs should be paid in Naira at the prevailing exchange rate in 2011. That it was fatal for the trial judge to also pronounce on the exchange rate which is a matter of fact. Finally urged the Court to dismiss the cross appeal.
RESOLUTION
The complaint of the Cross appellant here is that the Court should have awarded the maximum sum of 125,000 francs as stipulated in the Warsaw Convention being the amount for a single person in an established case of liability in refusal to board. Article 22(1) of the Warsaw Convention provides for the sum of 125,000 francs but the Court below awarded 65,000 francs only. The cross Appellant urged the Court to rely on its Order 4 Rule 9(a) and several cases to make an order for the award of 125,000 francs to substitute the sum awarded by the Court below.
Article 22(1) of the Warsaw Convention states:
In the carriage of passengers, the liability of the carrier for each passenger is limited to the sum of 125,000 franc.
The cross respondent on the other hand still contends that it was wrong to rely on the Warsaw convention, this point was dealt with adequately in the main appeal. The argument that the issue of 65,000 francs does not arise from the judgment appealed against is strange and preposterous. It is clearly part of the award made in favour of the Cross Appellant, indeed, that is the basis of the main appeal where the Cross respondent argued therein that the convention giving rise to the award of compensation was repealed. To seek to strike out the issue on the ground that it mentioned Montreal instead of Warsaw Convention. I say it did not occasion a miscarriage of justice, more so when the Conditions of Carriage by Air mentioned both conventions as applicable to whatever grievance a passenger has against the Cross Respondent. The Cross Respondent earlier relied on Section 48 of the Civil Aviation Act to contend that only the Montreal convention is applicable forgetting that the contract between the parties herein was not for carriage to and from Nigeria but to and from Ghana. It was the agreement that was entered to in Nigeria. The section provides thus:
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 force of law and apply to international carriage by air to and from Nigeria, in relation to any carriage by air 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.
The contentious arguments on the repeal of the Warsaw convention and its effect on the contract herein is unnecessary since the flight in issue did not originate nor end in Nigeria. I had dealt with the issue in the main appeal.
On the quantum damages to award, I think the Warsaw convention set the uppermost limit of 125,000 francs per passenger and did not set the minimum, thus leaving the discretion to the Court to assess and award what is appropriate in the circumstances of each case. The Court having exercised discretion in that regard and unless there is an allegation that it is perverse or it occasioned a miscarriage of justice, this Court cannot interfere, see

…………………….G……………………

BABATUNDE V P.A.S. & T.A.LTD (2007) 13 NWLR (Pt. 1050) 113 which held as follows:
The general law on exercise of judicial discretion is that discretion is always that of the trial Court and not of the Appeal Court. Hence, an appeal Court cannot substitute its own discretion. However, the Appeal Court would interfere with the exercise of such discretion in the most extra ordinary circumstances. The most obvious case is where the exercise of discretion by the trial Court tends to do injustice to one of the parties.
However an appeal Court would not hesitate to interfere when certain conditions exist or are established, such as:
i. Where the trial judge acted under a misapprehension of facts, or law;
ii. Where he failed to take into account relevant matters;
iii. Where the amount awarded is too low or too high;
iv. Where failing to interfere would amount to injustice.
See CAMEROON AIRLINES V OTUTUIZU (2011) LPELR-827 (SC).
The Court below having exercised its discretion in awarding 65,000 compensation, this Court cannot interfere more so, no justifiable ground was established by the cross appellant to warrant such interference. The award of Compensation and or damages is dependent on the nature of the breach and therefore the sum to award will always depend on the facts of the case, thus subjective. Since the cross appeal is basically premised on the said award, this cross appeal is unmeritorious and is hereby dismissed.
The judgment of the trial Court and the award made therein is hereby affirmed.
No order as to cost in the Cross-Appeal.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read in draft the leading judgment of my learned brother, Yargata Byenchit Nimpar, JCA, which has just been delivered.
Having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I find that the manner of the resolution of the issues in the appeal and cross appeal are in accord with my views.
Accordingly, based on the reasoning and conclusion in the leading judgment, which I adopt as mine, I also join in dismissing both the main appeal and the cross appeal. I abide by the order as to costs made in the leading judgment as it relates to the main appeal and the cross appeal.
JAMILU YAMMAMA TUKUR, J.C.A.: I read in draft before today the lead judgment just delivered by my lord YARGATA BYENCHIT NIMPAR JCA, I agree with the reasoning and conclusion. I adopt it as mine with nothing useful to add.

Appearances

VICTORIA ADEDAPO    For Appellant

AND

P. AMARAN with him, J. I. AJADI   For Respondent


DAMAGES

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