Klm Royal Dutch Airlines V. Jamilat Aloma (2007)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
By a writ of summons and a statement of claim both dated and filed on the 23rd December 1999, the Respondent herein claimed against the Appellant the following reliefs:-
“(i) The sums (sic) of $7,7650 (sic) (seven thousand seven hundred and sixty five US Dollars), 8,550.00 (eight thousand, five hundred and fifty pounds), and Lira 4,405,000 (four million four hundred and five thousand Lira) being the value of the goods and properties contained in the Plaintiffs baggage which was lost by the Defendant and whose total equivalent in Naira is N3,907,200,00 (three million, nine hundred and seven thousand, two hundred Naira)
(ii) The sum of $1,838,25 or N187,501.00 being the cost of return air ticket from Lagos to Amsterdam to Lagos which the Plaintiff had lost as a result of the Defendants unilateral decision to prevent the Plaintiff from stopping over at Amsterdam,
(iii) The sum of N5,000,000.00 (five million Naira) as damages for loss of expected profit and business goodwill in Amsterdam occasioned by the unilateral acts of the Defendant.
(iv) The sum of N5,000,000.00 (five million Naira) as damages for the Defendants violations of the plaintiffs fundamental right, false imprisonment and violation of human dignity.
(v) Interest on the above sums at the rate of 21% per annum from 15th October 1999 up till judgment and thereafter at the rate of 10% per annum until final liquidation.
(vi) Cost of this action.”
The Respondent’s eight paragraphs statement of defence is dated 21st January 2000 and filed on the 24th of January 2000. Thereafter the Plaintiff filed a reply to the statement of defence dated 16th February 2000. Pleadings having been exchanged the case was set down for trial. During the trial, the Respondent as Plaintiff testified as PW1 on the 10th May 2000. At the end of her testimony, the case was further adjourned to 27th June 2000 for cross-examination by Onu Esq. of counsel for the Respondent. Before the adjourned date the Respondent by an application dated 19th June 2000 and filed on the 21st of June 2000, sought for an order allowing the Respondent to amend its statement of defence. On the 27th of June 2000, the Respondent was represented by Tarfa Esq. of counsel, while the Appellant’s counsel was absent. This necessitated a further adjournment to 27th September 2000 for cross-examination. On the said date, the Appellant and its counsel were again absent, while the Respondent was represented by a counsel. The Court further adjourned the case to 27th October 2000 for cross-examination. On this date, Mr. Onu learned counsel for the Appellant appeared and cross-examined PW1 After the cross examination. Mr. Jolaowo, learned counsel for the Respondent closed their case. The trial Judge then adjourned the case to 27th January 2001 for defence. At this stage the Respondent filed a counter affidavit to the Appellant’s application to amend its statement of defence. The lower Court did not sit until 25th of September 2001 when the case was further adjourned to 13th November 2001. This time both parties were duly represented.
On the 13th November 2001, the Appellant and its counsel were absent in Court and the case was further adjourned to 12th February 2002. Both parties were represented on the said 12th February 2002, when the case was again adjourned to 14th March 2002 for argument on the application to amend the statement of defence. On this day, Mr. Oguniyi, learned counsel for the Appellant further asked for adjournment which was granted and the matter was further adjourned to 30th April 2002. On the 6th June 2002, Mr. Oguniyi withdrew the application to amend the statement of defence and same was struck out. Thereafter learned counsel for the Appellant, Mr. Oguniyi informed the court that negotiation for settlement out of Court had started between the parties. After a few adjournments, the same counsel informed the Court that negotiation had broken down. At this state the matter suffered few adjournments at the instance of the Appellant, and on the 24th of June 2003, when the Appellant and its counsel failed to put up appearance, the learned trial Judge, on the powers conferred on that Court by its rules, closed the Appellant’s defence and ordered for Respondent’s address. The Respondent filed a written address dated 22nd July 2003. Thereafter, in a reserved and considered judgment, which was delivered on the 25th day of September 2003, the lower Court granted to the Respondent all her claims.
It is against this judgment, the Appellant has brought this appeal. Its notice of appeal which is dated and filed on the 2nd of December 2003, contained five grounds of appeal.
In line with the relevant rules of this Court, the Appellant filed its brief of argument and a reply brief after the Respondent’s brief was served on it. Parties therefore exchanged briefs of argument.
At the hearing of the appeal, Candide-Johnson, learned senior counsel for the appellant identified the Appellant’s brief of argument dated 7th June 2004 and filed on the 8th June 2004 and the Appellant’s reply brief dated 28th February 2005 and filed on the 1st March 2005 and adopted both and relied on the argument contained therein.
Mrs. Opara, learned counsel for the Respondent identified the Respondent’s brief dated and filed on the 30th November 2004 and relied on the argument contained therein also.
The fact of this case is simple an1dstraight forward. The Respondent herein who was Plaintiff at the lower Court on 21st September 1999 purchased two airline return tickets Nos. 0744470475887-3 and 0744470475888-4 from the Appellant who is an international Air carrier for Lagos to Amsterdam to London to Milan back to Amsterdam to Lagos routes for N92,668.88. On the 22nd September 1999 the Respondent embarked on the first phase of the journey, which was to take her through Amsterdam, London and Milan, Italy. The journey through London to Milan was uneventful. On the 15th October 1999, the Respondent went to Milan Airport to embark on her return journey to Lagos via Amsterdam which was the route she paid for. This is after she had had her ticket confirmed at least 72 hours before the scheduled time of her flight. At the Airport she successfully went through check-in formalities and customs clearance and was subsequently issued with two boarding passes by the Defendant to cover her flight from Milan to Amsterdam and from Amsterdam to Lagos. Later officials of the Appellant retrieved the boarding pass for Milan-Amsterdam from her without explanation. At 11.15 am when boarding for Amsterdam began. the Respondent was prevented from boarding the flight and was instead forced to board an Alitalia Airline to Lagos for what the officials of the Appellant described as technical problems. Because of the action of the officials of the Appellant, the Respondent’s goods which had earlier been checked into the Milan-Amsterdam-Lagos flight had to be conveyed through Amsterdam to Lagos. The Respondent arrived Lagos two hours ahead of the flight that conveyed her goods. When the flight arrived, one of her baggages that contained sundry items, which she purchased during her trip was missing. All attempts to recover the bag failed, where with she sued the Appellant for the value of the items in the baggage, breach of contract and for maltreatment at Milan Airport.
At page seven, paragraph 5.1 of the Appellant’s brief which was settled by Candide-Johnson, learned senior counsel for the Appellant, the Appellant set out what it termed “THE APPEAL AND QUESTION FOR DECISION.” As follows: –
“(i) Whether the learned Judge was correct to enter judgment only upon failure of the Appellant to call opposing evidence and without evaluating or analyzing the evidence or considering applicable law.
(ii) Whether the Respondent established her case (granted in toto by the learned trial Judge) on liability or on quantum of damages awarded.”
The Respondent formulated only one issue for determination of the appeal herein at page 4 paragraph 3.00 of the Respondent’s brief. This issue reads thus: –
“Whether the Court of Appeal should interfere with the judgment of the trial Judge entered in favour of the plaintiff with due regards to the evidence before him.”
In this appeal, I will consider the appeal and question for decision as formulated by learned senior counsel for the Appellant as issues for the determination of this appeal. Both the Appellant and the Respondent failed to relate their respective issues to the five grounds of appeal, contrary to the express provisions of Order 6 rule 3 (1) of the Court of Appeal Rules No.2 of 2004, which is equivalent to Order 17,Rule 3 (1) of the Court of Appeal Rules 2007. This rule provides as follows: –
“The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.”
Clearly it is the duty of counsel who prepares brief to relate the issues to the grounds of appeal which have been filed. In this Court, arguments at the hearing of appeal are canvassed on the basis of the issues formulated and not on the grounds of appeal. See Akin Adejunto & ors v. Yesufu Ayantegbe (1989) 3 NWLR (pt. 109) 417 at 430. However, the appeal is only allowed or dismissed on the grounds of appeal and not on the issues as set down. See Enoch Annkwua & ors v. Peter Ohia (1986) 5 NWLR (pt.40) 150. It follows therefore that where issues are not related or tied to the grounds of appeal, it becomes difficult for the Court to determine whether an appeal on a ground or grounds of appeal succeeds or fails depending which way it is resolved.
The law is settled that issues formulated in the brief must arise from or relate to the grounds of appeal. Any issue formulated in a brief, which does not relate to the grounds of appeal is incompetent. See Akinfolarin v. Akinola (1988) 3 NWLR 235; Okpula v. Ibeme (1989) 2 NWLR 208; Onofade v. Olayiwola (1990) 7 NWLR 130.
In African Petroleum Ltd v. Owodunni (1991) 8 NWLR (pt. 210) 291 at 423, the Supreme Court said.
“It is well settled that any issue raised or argument advanced on an issue not arising from a ground of appeal is incompetent and liable to being struck out.”In the instant appeal, after setting down the issues for determination, the Appellant herein had a responsibility to proceed to proffer argument as fully as possible on each of the issues. This, the Appellant failed to do. Instead the Appellant abandoned the issues and went ahead to argue the appeal under eight separate headings contrary to the hallowed principle that it is the issues that are argued and not the grounds of appeal. In the instant appeal, neither the issues nor the grounds of appeal were argued. The divisions under which the appeal was argued are:
- Failure to analyse and evaluate evidence and case.
- Applicability of Warsaw convention.
- Evidence of value of luggage.
- Award of Return Air Ticket.
- Claim for loss of profit.
- Ludicrous claim for violation of Human Rights.
- Award of interest.
- Reliefs.
In Sekoni v. U.T.C. Nigeria Plc, unreported. Appeal No.CA/L/13/2002, of 23rd January 2006, My. Lord, Salami JCA who delivered the lead judgment was faced with the same situation such as this where the Appellant abandoned the issues for the determination of that appeal and argued the appeal under three broad headings, had this to say –
“The procedure adopted by the learned senior counsel is novel. It is rather strange. Neither the current procedure whereby counsel are required in their respective briefs, to canvass and tender argument in support of issues deriving from grounds of appeal nor erstwhile practice of arguing the grounds of appeal is followed. It is not permissible to canvass and tender argument by tripling the two issues. Having divided into three, the alleged two issues formulated and canvassed them separately it is not possible to consider the appeal properly and fairly. Indeed it is not the business of the Court to perform surgical operation on the argument by sieving argument arising from the three segments and consigning or assigning them to the two issues framed for determination in the appellant’s brief of argument. I am unable to apportion the three segments into which the arguments have been truncated to the two issues framed by the appellant without violence to the argument. Assuming it could be done, without so deciding, any attempt to separate them clearly would necessitate the court stepping into the arena on the side of the appellant. There is no gain saying that the dust rising therefrom would becloud the vision of the court.”
I agree with my Lord and I adopt his reasoning as mine.
The Respondent in this appeal did not adopt the Appellant’s approach to brief writing. Her argument was solely in support of the only issue formulated on her behalf. The problem created is to ascertain which of the Respondent’s issue is designed to meet the Appellant’s eight-segmented argument. On this, I will have to turn again to the decision of my learned brother, Salami JCA in Sekoni v. U.T.C. Nigeria Plc (Supra) where at page 8 paragraph 2 he said.
“The problem thus created for the court now is to ascertain which of the respondent’s issue is designed to meet the appellant’s apparent three issues. Undoubtedly any effort on the part of the court to shift Appellant’s argument to meet the respondent’s two issues will lead to overburdening the court with assignment which is not its own. Unnecessarily saddling the court with the duty of apportioning appellant’s argument to meet the respondent’s two issues might result in injustice.”
In the instant appeal, the Appellants brief is not written in accordance with order 6 rule 3 of the Court of Appeal Rules 2004 or order 17 rule 3 (1) of the Court of Appeal Rules 2007. The defect inherent in the settlement of the Appellant’s brief is beyond mere technicality. It goes to the root of fair hearing of the appeal, as whichever way the brief is considered, undue interference in the arrangements of the issues must be occasioned in favour of the Appellant.
Having failed to proffer argument in respect of the two issues formulated by the Appellant, same are deemed abandoned. Where a brief is filed and it is not in conformity with the rules the Courts are enjoined to disregard such brief and give judgment as if none has been filed. See Bioku Investment & Property Co, Ltd & Anor, v. Light machine Industry Nigeria Ltd & Anor, (1984) 5 NWLR 42. A brief which is only defective in format can be tolerated but a brief the contents of which do not contain the essential requirements as laid down by the rules cannot be countenanced as this will not meet the ends of justice. See Paul Nwagha & Ors. v. Omonivi Olupo & Ors. (1991) 7 NWLR 517
In the result the Appellant’s brief is accordingly struck out on account that the issues framed were abandoned thus rendering the brief incompetent. The brief having been struck out for incompetence, there is nothing left on which to hear or consider and determine the appeal. Therefore the appeal is dismissed for want of prosecution. The appeal having been dismissed, the decision of the trial Judge is affirmed.
I make an order of cost which I assess at thirty thousand Naira (N30,000.00) to the Respondent.
Other Citations: (2007)LCN/2524(CA)
